Milagros Cabrera, as Administrator of the Goods, Chattels and Credits which were of Raquel Gutierrez, etc., Plaintiff-Respondent,
Salvador Collazo, Defendant, Shelley B. Levy, as Executor of the Estate of Cary M. Tanzman, deceased, et al., Defendants-Appellants.
Defendants appeal from an order of the Supreme Court, Bronx County (Sharon A. M. Aarons, J.), entered October 26, 2012, which, to the extent appealed from as limited by the briefs, denied the Tanzman defendants' motion to dismiss the claim of legal malpractice pursuant to CPLR 3211(a)(1) and (7).
Housman & Associates, P.C., Tarrytown (Mark E.Housman of counsel), for appellants.
Sanocki, Newman & Turret, LLP, New York (David B. Turret of counsel), for respondent.
Peter Tom, J.P., David Friedman, Helen E. Freedman Paul G. Feinman, JJ.
The remarkable defense proffered in this professional malpractice action is that an attorney who neglects a matter so that the statute of limitations runs against his client cannot be held legally accountable if the attorney happens to expire before the applicable limitations period. A cause of action for attorney malpractice requires: " (1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) proof of actual damages'" (Kaminsky v Herrick, Feinstein LLP, 59 A.D.3d 1, 9 [1st Dept 2008], lv denied 12 N.Y.3d 715 , quoting Mendoza v Schlossman, 87 A.D.2d 606, 606-607 [2d Dept 1982]). The pleadings, as "[a]mplified by affidavits and exhibits in the record" (Crosland by New York City Tr. Auth., 68 N.Y.2d 165, 167 ), contain allegations from which these elements can be made out and, thus, state a viable cause of action so as to survive a pre-answer motion to dismiss the complaint.
This legal malpractice action was brought by plaintiff Milagros Cabrera against defendants Shelley B. Levy, as executor of the estate of Cary M. Tanzman, Esq., and the Law Office of Cary M. Tanzman (collectively, the Tanzman defendants) and Salvador Collazo, who participated in plaintiff's representation. The Tanzman defendants brought a pre-answer motion to dismiss the complaint for failure to state a cause of action based on documentary evidence (CPLR 3211[a], ), particularly Cary Tanzman's death certificate. The gravamen of their defense is that since the attorney-client relationship was terminated by Tanzman's death on October 24, 2010, Tanzman and his law firm cannot be held liable for any damages sustained by plaintiff as a result of the subsequent running of the statutory limitations period on November 4, 2010 (EPTL 5-4.1).
The wrongful death complaint alleges that plaintiff's, decedent Raquel Gutierrez, died on November 4, 2008 as a result of negligent care and treatment that was rendered by her doctors and nurses on or about October 26, 2008 . According to a retainer agreement dated "November 2008, " Salvador Collazo was retained by decedent's sister, Porfilio Guttierrez, to commence a wrongful death action against the allegedly negligent individuals. It is not clear what work Collazo performed in the course of a year, if any, but under cover of a memorandum dated November 23, 2009, he sent the retainer agreement and medical authorizations to Tanzman. On March 11, 2010, Milagros Cabrera entered into a retainer agreement with the Tanzman law office, which included a fee-sharing provision stating that while Collazo would not be actively participating in the litigation, he "shall be participating in contacts between the Law Office of Cary M. Tanzman and the client." Also taking part in communications between the client and her lawyers was Mary Cabrera, plaintiff's daughter, who served as an interpreter and, according to her affidavit, attended all relevant meetings with defendants concerning decedent's estate.
Collazo later sent Tanzman a waiver of citation, renunciation and consent to appointment of administrator dated April 6, 2010 to expedite the issuance of limited letters of administration to plaintiff. Ten days later, Collazo was convicted of immigration and visa fraud in the United States District Court for the Southern District of New York. Mary Cabrera reported that at some point during the summer of 2010, both Collazo and Tanzman ceased responding to her attempts to contact them.
In late September, Tanzman filed a certificate of lateness with Surrogate's Court stating that "another attorney" had been contacted initially by the family and "did nothing on the file for over a year." It was followed by a letter of September 30, 2010 asking that letters of administration be issued " as soon as is possible because there is a wrongful death matter associated with the above-named decedent and the Statute of Limitations will be expiring shortly." Surrogate's Court issued letters of limited administration on October 6. On October 14, Collazo was sentenced to 24 months' imprisonment on the federal immigration and visa fraud charges . On October 24, Tanzman died at Memorial Sloan-Kettering Cancer Center, and the statute of limitations on plaintiff's wrongful death action expired 11 days later on November 4. No complaint was ever filed on behalf of plaintiff, and this action for professional malpractice ensued.
Other than a death certificate, there is no evidence concerning Tanzman's treatment or the course of his illness or when he was hospitalized. Nor is there any information about the nature of his law practice, beyond a letterhead that identifies three other attorneys as "of counsel." While it is clear from the letter dated September 30, 2010 that Tanzman was aware of the impending expiration of the statute of limitations against his client, it is unknown whether he took any steps to prepare a complaint for filing or whether he attempted to enlist the assistance of any other attorney including the attorneys of counsel in his firm.
According to the Tanzman defendants, neglect of a client matter by an attorney is not actionable if, as here, the attorney dies before the applicable limitations period runs against the client. Granted, it has been held that, for the purpose of determining the timeliness of a professional malpractice action, the action accrues "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court." That a cause of action might accrue when the plaintiff actually sustains a loss, however, does not require the conclusion that an attorney is absolved of responsibility for any and all consequences of his neglect of the matter simply because it occurred prior to accrual of an actionable claim. Giving plaintiff the benefit of every possible favorable inference that can reasonably be drawn from the pleadings (Rovello v Orofino Realty Co., 40 N.Y.2d 633, 634 ), as we must on a pre-answer motion to dismiss (see Arrington v New York Times Co., 55 N.Y.2d 433, 442 , cert denied 459 U.S. 1146 ), it appears that the inaction of counsel rendered the lapse of plaintiff's cause of action not merely possible — or even probable — but inevitable. On a motion directed at the sufficiency of the pleadings, the issue is whether the facts alleged fit within any cognizable theory of recovery, not whether the complaint is artfully pleaded (see Hirschhorn v Hirschhorn, 194 A.D.2d 768 [2d Dept 1993]), and the circumstances of this matter do not warrant dismissal of the action, at this juncture, as against the Tanzman defendants.
The extent of the duty imposed on the attorney to commence a timely action depends on the immediacy of the running of the statutory period, and no duty will be imposed where sufficient time remains for successor counsel to act to protect the client's interests in pursuing a claim (see Golden v Cascione, Chechanover & Purcigliotti, 286 A.D.2d 281 [1st Dept 2001] [defendant law firm relieved 2½ years before claim expired]). Where, as here, the expiration of the statute of limitations is imminent and the possibility that another attorney might be engaged to commence a timely action is foreclosed, there is a duty to take action to protect the client's rights.
Plaintiff is entitled to the inference that Tanzman died as a result of a chronic, terminal illness that he knew, or should have known, presented the immediate risk that his ability to represent his clients' interests might be impaired (see Yuko Ito v Suzuki, 57 A.D.3d 205, 207 [1st Dept 2008]). Here, defendants offered no evidence to elaborate on the cause or circumstances surrounding Tanzman's death. The submitted certificate of death for Tanzman merely states that Tanzman passed away on October 24, 2010 at Memorial Sloan-Kettering Cancer Center. The record suggests that plaintiff had cancer, and that his death may have been foreseeable, but the nature and duration of his illness cannot be determined from the death certificate and defendants' other submissions. Further, the record reflects that Tanzman was well aware that Collazo could not be relied upon to assist with plaintiff's representation. According to Tanzman's own statement, Collazo had done nothing on the matter in over a year, and Tanzman's retainer agreement assigned Collazo only a limited role in the case. In any event, as of September 2010, when Tanzman expressed his concern over the running of the statute of limitations in a letter to Surrogate's Court, Collazo had been convicted on a federal criminal offense and was facing sentencing and disbarment. Plaintiff is entitled to the factual inference that, at this late juncture and mindful of his ill health, Tanzman was aware of ...