GONZALEZ v. DDI (1999)

In an action to recover damages for legal malpractice, the third-party defendant, DDI Enterprises Corp., appeals from an order of the Supreme Court, Suffolk County (D'Emilio, J.), dated October 25, 1995, which denied its motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.

Ruth Gonzalez and Fernando Gonzalez commenced a personal injury action against the Metropolitan Suburban Bus Authority (hereinafter MSBA), its bus driver, DDI Enterprises Corp. (hereinafter DDI), which is Ruth's employer, and another DDI employee, to recover damages for injuries Ruth Gonzalez received when the DDI van in which she was a passenger was struck by a MSBA bus.   The Gonzalezes hired Jacoby & Meyers to prosecute the personal injury action.   However, the firm failed to timely commence the action against the municipal defendants.   Thus, the Supreme Court granted the municipal defendants' motion to dismiss the complaint in the personal injury action insofar as asserted against them.   Since the Gonzalezes could only pursue a Workers' Compensation claim against DDI, the dismissal of the municipal defendants left them without adequate recourse to seek compensation for Ruth's injuries.

 The Gonzalezes then commenced this action alleging legal malpractice against Jacoby & Meyers and its attorneys (hereinafter collectively referred to as Jacoby & Meyers).   Jacoby & Meyers then commenced a third-party action for contribution against DDI. The Supreme Court denied DDI's motion to dismiss the third-party complaint on the ground that CPLR 1401 provided for contribution among joint tortfeasors.   DDI appeals, arguing that the personal injury suffered by Ruth Gonzalez was not the same injury suffered as a result of Jacoby & Meyers' legal malpractice, and therefore, the third-party complaint should have been dismissed.

 We agree with DDI's contention that the Supreme Court erred.   Pursuant to CPLR 1401, “two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them”.   Thus, contribution may be obtained if the breach of duty by a third-party defendant “had a part in causing” the same injury for which contribution is sought (Raquet v. Braun, 90 N.Y.2d 177, 183, 659 N.Y.S.2d 237, 681 N.E.2d 404;  see, Williams v. Brentwood Farmers Mkt., 256 A.D.2d 613, 683 N.Y.S.2d 134).   Here, however, the injury allegedly caused by Jacoby & Meyers, i.e., the loss of certain legal rights, is not the same injury as the one allegedly caused by DDI's alleged negligence in the automobile accident (see, Edouard v. Ginsberg & Broome, 229 A.D.2d 559, 561, 645 N.Y.S.2d 865;  see also, Jakobleff v. Cerrato, Sweeney & Cohn, 97 A.D.2d 786, 468 N.Y.S.2d 894;  Cleveland v. Farber, 46 A.D.2d 733, 361 N.Y.S.2d 99).   While the third-party plaintiff Jacoby & Meyers and DDI allegedly violated duties to the plaintiffs, they did not share in responsibility for the same injury (see, Jakobleff v. Cerrato, Sweeney & Cohn, supra).

MEMORANDUM BY THE COURT.