Louis B. York, J.:
In this action for legal malpractice, the following motions are before the court: (1) plaintiff Phoenix Erectors LLC's motion for summary judgment on the complaint (Seq. No. 6); and (2) defendant White & McSpedon, P.C.'s (W&M) motion for summary judgment dismissing the complaint (Seq. No. 7). The motions are here consolidated for determination.
This action revolves around the alleged legal malpractice committed by defendant Edward M. Fogarty, Jr. (Fogarty), and, by extension, W&M, the firm with which he was at the time associated, in the prosecution of a claim against a surety, in an action involving the collection of a debt from the surety's principal.
A. Underlying Actions
Plaintiff is a construction company, which was hired as a subcontractor by Hera Construction, Inc. (Hera) in connection with the construction of a monorail in Newark Airport, in New Jersey (project).
Hera was also the principal under a Subcontractor Labor and Material Payment Bond No. B99-020680 (bond), issued by Ulico Casualty Company (Ulico), as surety for amounts Hera was obligated to pay subcontractors on the project. The bond, which was for $1, 600, 000, contained a forum selection clause requiring that Ulico could only be sued in the United States District Court of the jurisdiction in which the bonded project was situated, here, New Jersey.
A pay dispute arose between Phoenix and Hera, in which Phoenix claimed it was due approximately $180, 000. Apparently, Hera got wind of plaintiff's decision to commence a suit against Hera and Ulico in the New Jersey District Court, and commenced a peremptory suit against plaintiff in Supreme Court, Suffolk County, New York, in January 2002 (Hera Construction, Inc. v Phoenix Erectors, LLC, Index No. 00044/02) (Suffolk County action), seeking damages for plaintiff's alleged failure to provide materials to the project.
Fogarty was retained by plaintiff to represent it in the Suffolk County action. Fogarty served an answer on Hera, on plaintiff's behalf, in April 2002.
Plaintiff obtained New Jersey counsel, John Rittley (Rittley), to prosecute an action against Hera and Ulico in the United State District Court, District of New Jersey (New Jersey action). Besides bringing claims in the New Jersey action against Hera sounding in breach of contract, plaintiff brought a claim for payment against Ulico under the bond.
Fogarty moved to dismiss the Suffolk County action, claiming lack of jurisdiction and forum non conveniens. The motion, and a motion for reargument, were denied, based on a forum selection clause in the Hera-Phoenix contract calling for suits against Hera to be brought in Suffolk County.
Hera then moved in the New Jersey action to be dismissed from the action based on the same forum selection clause. This motion was granted, and the New Jersey action continued against Ulico without Hera.
At some point, Fogarty contacted Rittley to discuss adding Ulico to the Suffolk County action. The court notes that Ulico inserted a second affirmative defense in its answer, claiming that the New Jersey action should be dismissed, as the proper venue to settle disputes among plaintiff, Hera and Ulico was in Suffolk County, because Ulico's forum selection clause ...