CAMINERO v. MICHAEL FLYNN ESQ PLLC (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Dawn Jimenez, J.), entered June 22, 2023.  The order denied the defendants’ motion for summary judgment dismissing the cause of action alleging legal malpractice.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendants, inter alia, to recover damages for legal malpractice.  The plaintiff alleged that she had retained the defendants to represent her in an action that she commenced pursuant to the Federal Employers’ Liability Act (45 USC § 51 et seq.) (hereinafter the FELA action).  The plaintiff had asserted the FELA action against the Metropolitan Transportation Authority (hereinafter the MTA) to recover damages for personal injuries she allegedly sustained on two different dates while she was working as a police officer employed by the MTA. The plaintiff further alleged that she would have prevailed in the FELA action, which was dismissed, with prejudice, for failure to prosecute, but for the defendants’ negligent failure to prosecute that action.  Thereafter, the defendants moved for summary judgment dismissing the cause of action alleging legal malpractice.  In an order entered June 22, 2023, the Supreme Court denied the defendants’ motion.  The defendants appeal.

“ ‘A plaintiff in an action alleging legal malpractice must prove the defendant attorney's failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages’ ” (Dabiri v. Porter, 227 A.D.3d 860, 861, 211 N.Y.S.3d 466, quoting Casey v. Exum, 219 A.D.3d 456, 456–457, 194 N.Y.S.3d 89).  “To establish proximate causation, the plaintiff must show that [he or] she would have prevailed in the underlying action ․ but for the defendant attorney's negligence” (Casey v. Exum, 219 A.D.3d at 457, 194 N.Y.S.3d 89;  see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).  “ ‘A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages’ ” (Casey v. Exum, 219 A.D.3d at 457, 194 N.Y.S.3d 89 [internal quotation marks omitted], quoting Provenzano v. Cellino & Barnes, P.C., 207 A.D.3d 763, 764, 170 N.Y.S.3d 910).

Contrary to the defendants’ contention, they failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice based upon the doctrine of collateral estoppel.  “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 [emphasis omitted];  see Matter of Maione v. Zucker, 210 A.D.3d 776, 777, 178 N.Y.S.3d 142).  “ ‘This doctrine applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the ․ party to be bound had a full and fair opportunity to litigate the issue in the earlier action’ ” (Matter of Maione v. Zucker, 210 A.D.3d at 777, 178 N.Y.S.3d 142 [alteration and internal quotation marks omitted], quoting City of New York v. Welsbach Elec. Corp., 9 N.Y.3d 124, 128, 848 N.Y.S.2d 551, 878 N.E.2d 966).

Here, the defendants asserted that in light of the denial of an application by the plaintiff for accidental disability retirement benefits and the dismissal of the plaintiff's proceeding pursuant to CPLR article 78 to review the denial of that application, the plaintiff was collaterally estopped from claiming that she suffered a work-related injury.  Therefore, the defendants argued that the plaintiff could not establish that she would have prevailed in the FELA action but for the defendants’ alleged negligent failure to prosecute that action.  Contrary to the defendants’ contention, however, the defendants failed to demonstrate an identity of issues between the FELA action and the determination of either the plaintiff's application for accidental disability retirement benefits or the CPLR article 78 proceeding (see Weslowski v. Zugibe, 167 A.D.3d 972, 975, 91 N.Y.S.3d 114).  Whereas the FELA action involved the issue of whether the MTA's alleged negligence played any part in producing the injuries for which the plaintiff sought damages (see Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493;  Grasso v. Long Is. R.R., 306 A.D.2d 378, 379, 760 N.Y.S.2d 864), that issue was not litigated and necessarily decided against the plaintiff either in the context of her application for accidental disability retirement benefits or in the CPLR article 78 proceeding (see Kenny v. New York City Tr. Auth., 275 A.D.2d 639, 640, 713 N.Y.S.2d 173).  Thus, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice based upon the doctrine of collateral estoppel.

The defendants also failed to establish, prima facie, that the MTA neither created nor had actual or constructive notice of the alleged dangerous conditions at issue in the FELA action (see Lauzon v. Stop & Shop Supermarket, 188 A.D.3d 856, 857, 135 N.Y.S.3d 424;  Ariza v. Number One Star Mgt. Corp., 170 A.D.3d 639, 639, 93 N.Y.S.3d 603).  Thus, the defendants failed to demonstrate, prima facie, that the plaintiff would not have prevailed in the FELA action but for their alleged failure to prosecute that action (see Detoni v. McMinkens, 147 A.D.3d 1018, 1020, 48 N.Y.S.3d 208).

Since the defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice, we need not consider the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The parties’ remaining contentions either need not be reached in light of our determination or are without merit.

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the cause of action alleging legal malpractice.

DUFFY, J.P., WOOTEN, WARHIT and HOM, JJ., concur.