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Catherine Cox v. Kevin P. Mckernan

May 14, 2013


The opinion of the court was delivered by: Azrack, United States Magistrate Judge:


On July 11, 2012, the parties in this action consented to my conducting all proceedings in this case, including trial and entry of final judgment. ECF Nos. 24--25. Now before me is plaintiff Catherine Cox's motion for summary judgment against defendants Kevin McKernan, Esq.; McKernan & Gatins ("M&G"; together with McKernan, "Opposing Defendants"); and Patrick C. Gatins, Esq., (collectively with Opposing Defendants, "defendants") as to defendants' liability for legal malpractice.

For the reasons set forth below, plaintiff's motion is granted in part and denied in part.


A.Plaintiff's Injury

From approximately September 1992 until June 1994, plaintiff was a health and physical education teacher, and the coach of the boys' tennis team, at Port Richmond High School in Staten Island (the "School"). Pl. Decl. Supp. Mot. Summ. J. ("Pl. Decl.") ¶ 4, ECF No. 34; Pl. Dep. 6:2--3, 1/10/13, McKernan's Mem. of L. Opp'n Mot. Summ. J. ("Opp'n Br.") Ex. H, ECF No. 37; Pl.'s Sworn Examination Before Trial ("Pl. EBT") at 2, 9/13/93, Opp'n Br. Ex. A. Plaintiff played college basketball at SUNY Cortland beginning in 1974, coached girls' junior varsity basketball at St. Joseph's By the Sea High School from 1980 to 1982, and taught sports including basketball at the School. Pl. Dep. 6:14--8:23. Before beginning her job at the School, plaintiff worked for approximately a decade in other locations as a physical education teacher. Pl. EBT at 2.

On March 12, 1993, plaintiff participated in an after-school charity basketball game (the "Game") in the School's boys' gymnasium (the "Gym"). Pl. Decl. ¶ 5; Pl. EBT at 3; Pl. Dep. 12:25--13:5. Plaintiff's friend Karen Lynch, who taught at the School, asked plaintiff to participate in the Game. Pl. Dep. 13:11--23. The Game was not a Board of Education ("Board") function, and plaintiff's participation in the Game was entirely voluntary. Id. 13:17--19; 20:24-- 21:3; Pl. Decl. ¶ 6.

While playing in the Game, plaintiff slipped in the center of the court and fell to the floor. Pl. Decl. ¶ 7; Pl. EBT at 4. Lynch witnessed plaintiff's fall. Decl. of Karen Lynch ("Lynch Decl.") ¶¶ 2--4, Pl.'s Mem. Supp. Mot. Summ. J. ("Pl. Br.") Ex. 5, ECF No. 35. Frank Guglielmo, who taught at the School and coached the boys' varsity basketball team during the 1992--1993 season, also participated in the Game. Decl. of Frank Guglielmo ("Guglielmo Decl.") ¶¶ 1, 4, Pl. Br. Ex. 6. When plaintiff fell, she was heading toward the opposite end of the court to play defense. Pl. EBT at 4; Pl. Dep. 23:3--15; Lynch Decl. ¶ 4 ("During the play on which she fell, [plaintiff] appeared to be engaged in the type of ordinary defensive move that I routinely see basketball players make during the course of a game."); Guglielmo Decl. ¶ 4 ("[Plaintiff] . . . slipped and fell while back-pedaling on defense."). Plaintiff did not observe any visible obstacle or condition on the floor that caused her to fall. Pl. Decl. ¶ 8; Pl. Dep. 23:24--24:7.

The Gym had been renovated in the Fall of 1992. Pl. EBT at 13; see also Guglielmo Decl. ¶ 2. After the renovation, the Gym floor was slippery, Guglielmo Decl. ¶ 3; Pl. EBT at 13, though the cause and extent of the slipperiness are unclear.

With regard to what caused the floor's slipperiness, plaintiff testified in 1993 that "the company that did the floor didn't do it right and there was nothing that could be done about it." Pl. EBT at 13.*fn1 Plaintiff also testified in 1993 that after the renovation, "[t]he whole entire floor was extremely dusty and slippery." Id. (emphasis added). In 2013, plaintiff testified that Guglielmo told her the floor was "very, very slippery from a certain wax that they had put on." Pl. Dep. 24:16--25; see also id. 25:16--18. Guglielmo states that the Gym floor "had a tendency to get slippery toward the end of the day," but Guglielmo does not state why. Guglielmo Decl. ¶ 3. Guglielmo also recalls that the School's maintenance staff "tried" to address the problem of the slippery floor prior to the Game, but he does not state what, if anything, the maintenance staff did or what he believes the maintenance staff should have done. Id. ¶ 8.

With regard to the extent of the floor's slipperiness, plaintiff testified that the floor was "so slippery" that "the kids were always slipping all over the place," such that the basketball coaches "had to use water and a mop just to . . . dry certain areas." Pl. EBT at 13. Plaintiff also testified that after the renovation, the basketball coaches, who she sometimes helped, would put water on the Gym floor "to try to make it less slippery, but the water would dry and it would be [slippery again; in] 10, 15 minutes it would be back to the way it was." Id. Guglielmo recalls "numerous occasions" before the Game when members of the School's boys' basketball team, as well as members of opposing teams, "would slip and fall due to the condition of the floor in the same area where [plaintiff] fell." Guglielmo Decl. ¶ 7. The record, however, contains no specific evidence about when, or how often, people besides plaintiff slipped on the Gym floor.

Plaintiff gave contradictory testimony about whether she knew, before the Game, about problems with the Gym floor. At her 1993 deposition, plaintiff testified that (1) she was aware, before the Game, that there had been problems with the floor; (2) she and all the physical education teachers complained about the floor to administrators in charge of their department; (3) members of the boys' basketball team "were constantly complaining to [her] about the gym floor"; and (4) although she had never played a basketball game in the Gym or run up and down the Gym floor before the Game, she would "stand there and take a few shots" with a basketball when her students were practicing. Pl. EBT at 12--13. In contrast, in the declaration she made twenty years later in support of the instant motion, plaintiff states that "I learned after the Accident that there was a problem with the floor that caused other people to slip and fall, but I was not aware of that condition before the Game." Pl. Decl. ¶ 9. Similarly, plaintiff testified at her deposition for the instant action that she was not aware, before the Game, of anyone complaining to any party responsible for the Gym's floor. Pl. Dep. 37:23--38:5.

Because of the accident, plaintiff suffered a fracture of the radius (a bone of the forearm), which caused her steady wrist pain and discomfort. Pl. Decl. ¶¶ 10--11.

Plaintiff initially went to a hospital emergency room and, on March 15, 1993, began treatment for her arm with Dr. John Hurley. Pl. EBT at 5--7; Pl. Dep. 28:2--13.

For months following the accident, plaintiff was unable to participate in sports or engage in other physical activities. Pl. Decl. ¶ 12. Plaintiff also developed carpal tunnel syndrome as a result of the accident. Pl.'s R. 56.1 Stmt. ("Pl. 56.1") ¶ 12, ECF No. 35. To this day, plaintiff has limited motion and constant numbness in her wrist and cannot engage in many physical activities to the same extent she could before the accident. Pl. Decl. ¶¶ 13--14.

Plaintiff testified that she did not apply for workers' compensation. Pl. Dep. 36:22--24; 37:12--13. Disputing this testimony, Opposing Defendants submit a Patient History Report, purportedly from "McBride & Hurley, M.D.," which states that the School's workers' compensation account paid for treatment of a patient named "Catherine" for a distal radial fracture between March 15, 1993 and May 25, 1993-dates which coincide with plaintiff's injury and her testimony that she began treatment with Dr. John Hurley on March 15, 1993. Patient History Rept., Opp'n Br. Ex. I; see Pl. EBT at 6.

B. The Underlying Action

After the accident, plaintiff consulted with Attorney Paul F. Scano about bringing a lawsuit to recover damages for her injury. Pl. Decl. ¶ 15. On May 14, 1993, Scano filed a Notice of Claim on plaintiff's behalf against both the City of New York (the "City") and the Board (which is now the Department of Education). Notice of Claim, Pl. Br. Ex. 8. After filing the Notice of Claim, Scano did not file a complaint on plaintiff's behalf. Pl. Decl. ¶ 16.

Plaintiff and Scano terminated their relationship by mutual consent during the first half of 1994. Id. ¶ 17.

On approximately June 3, 1994, plaintiff met McKernan to discuss bringing a personal injury action to recover damages for the injuries she sustained at the Game. Id. ¶ 18. The record contains contradictory evidence concerning whether Gatins was also present at this meeting. Compare id. with Pl. Dep. 34:4--13. McKernan and Gatins were partners in M&G, a New York general partnership, from approximately October 1990 until sometime in 2008. Pl's 56.1 ¶ 27. Plaintiff came to M&G because McKernan had a relationship with her parents. McKernan Affm. Opp'n Mot. Summ. J. ("McKernan Affm.") ¶ 7, Opp'n Br. Ex. B; Pl. Dep. 34:8 ("[McKernan] was [plaintiff's] father's attorney.").

Plaintiff signed a written retainer agreement by which she agreed to have defendants represent her in a lawsuit arising from her accident. Pl. 56.1 ¶ 30; McKernan's R. 56.1 Stmt. ("Opposing Defs. 56.1) ¶ 30, ECF No. 37; Pl. Decl. ¶ 20. In a letter dated June 18, 1994, McKernan sent plaintiff a letter confirming "that you have retained me [McKernan] to recover for personal injuries you sustained as a result of the accident." June 18, 1994 Ltr., Pl. Br. Ex. 10. McKernan enclosed an unsigned retainer agreement, dated June 3, 1994, which states that plaintiff "hereby retains [M&G] to serve as attorney of record to represent . . . [plaintiff] for personal injuries . . . sustained by [plaintiff] as a result of an accident which occurred on the 12th day of March, 1993 due to the negligence of [the] New York City Board of Education, and/or others." Retainer Agr., Pl. Br. Ex. 10; see also Pl. Dep. 32:23--25 (plaintiff testifying that she retained M&G). M&G filed a Retainer Statement with the New York State Office of Court Administration. Retainer Stmt., Pl. Br. Ex. 11. Opposing Defendants concede that plaintiff and defendants formed an attorney-client relationship. Pl. 56.1 ¶ 32; Opposing Defs. 56.1 ¶ 32.

By what appears to be an unsigned summons from M&G dated June 3, 1994, and a verified complaint purportedly signed by McKernan on behalf of M&G, defendants commenced a personal injury suit against the City, but not against the Board, on plaintiff's behalf. Underlying Action Summons & Verified Compl., Cox v. City, Index No. 11952/94 (N.Y. Sup., Richmond Cty.), Pl. Br. Ex. 12. On approximately June 29, 1994, the City served an answer. City's Answer, Pl. Br. Ex. 13.

During the first year after plaintiff retained defendants, she met with McKernan "[p]robably five to ten times." Pl. Dep. 35:7. Plaintiff and Opposing Defendants agree that from approximately the end of June 1994 until May 2010, all communications plaintiff had with defendants regarding her case were with McKernan. Pl. 56.1 ¶ 42; Opposing Defs. 56.1 ¶ 42; Pl. Decl. ¶ 21. Plaintiff and Opposing Defendants also agree that whenever plaintiff asked McKernan about her case, McKernan assured her "that everything was fine." Pl. 56.1 ¶ 43; Opposing Defs. 56.1 ¶ 43; Pl. Decl. ¶ 22.

Despite these assurances, defendants did not file a Request for Judicial Intervention ("RJI") asking the State Court to hold a preliminary conference ...

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