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Kaitlyn Conley, Petitioner, v. Cory Zennamo, Respondent.
Procedural History
Petitioner commenced this action against Respondent (her former attorney) with a small claims application received by this Court on July 15, 2024. The matter proceeded to trial on September 5, 2024, with the Petitioner appearing virtually from the correctional facility and the Respondent appearing in person. The Petitioner had a friend present in court to facilitate with the distribution of physical documents and to take care of any administrative issues.
Facts
Petitioner hired Respondent to pursue a refund of her attorney fees paid to her appellate counsel who did not complete the work he was hired to do. That case resulted in a $50,000 settlement on July 14, 2021. Unfortunately, a series of delays resulted in the funds not being released until late May, 2022. The delays started with a dispute over whether Respondent could sign on behalf of the Petitioner. Further delays surrounded the notarization of the documents and the ever changing COVID procedures at the facility. Respondent attempted to resolve this with a virtual appearance to place this on the record in court. As things go, there were a series of scheduling delays attributable to orders to produce and the court's own schedule. Seeing that this would not be resolved in a timely manner, Respondent Zennamo eventually was able to make some progress with a different staff member at the correctional facility and obtained a fully executed document in May 2022, which resulted in her parents being paid in full shortly thereafter. The essence of the claim is that the ten-month delay should be attributed to counsel's negligence and she measures her damages by 9% interest that could have been made on the money if it were received on time.
Issue
The issue in this case are whether the multiple delays in this case constitute legal malpractice.
Relevant Law
The court's duty in a small claims case is to do substantial justice between the parties according to the rules of substantive law (UCCA § 1804).
"In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action 'but for' the attorney's negligence" (AmBase Corp. v. Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [internal citations omitted]).
Analysis
The unfortunate reality during the COVID pandemic was there was a tangled web of administrative orders, emergency rules, and emergency legislation which continued to change every time the COVID-positive numbers changed or new information about the virus was revealed. These orders, rules and laws were interpreted differently by various agencies and departments as well as different staff within each department or agency. The settlement in this case was reached in July 2021 which was shortly after the vaccines were given emergency use authorization for all adults and the COVID rules started to relax. Although that was the case for the general public, institutions like correctional facilities, hospitals, and nursing homes faced a different reality due to their close quarters which is less than ideal for containing a contagious virus. It was — and sometimes still is — the unfortunate reality that correctional facilities have COVID outbreaks that still impact their ability to produce criminal defendants to their court appearances.
This Court is aware that the Petitioner and her family have endured many difficult situations regarding her current incarceration, her unfortunate dealings with appellate counsel, and then the ten-month delay in receiving her already substantially reduced settlement. In any event, there is a distinction between an unforeseeable delay and attorney negligence. Based on the facts of this case, this Court cannot find that the delay in this case was proximately caused by any negligence on the part of the Respondent. In fact, the Respondent did what any reasonable attorney would have done in this situation: upon learning that his own signature wasn't enough, he tried to obtain the client's signature through the mail; when that process presented problems with the notary, he scheduled virtual court appearances to put the settlement on the record; when the court continued to delay, he re-engaged with the correctional facility, and ultimately obtained the proper signatures. This Court find that the Respondent exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.
Order
Therefore, it is hereby ORDERED:
1. The Petition against Respondent should be and hereby is DISMISSED.
This is the Decision and Order of the Court.
Dated: October 10, 2024
Little Falls, New York
Joshua P. Bannister
Little Falls City Court Judge
Joshua P. Bannister, J.
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Docket No: Index No. SC-000183-24 /LF
Decided: October 10, 2024
Court: City Court, New York,
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FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
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