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Short Form OrderSUPREME COURT - STATE OF NEW YORK

Present:HON. JOSEPH COVELLO

Justice

TRILIIAS, PART 22NASSAU COUNTY

JAMES MORANIndex No. : 017101103

Plaintiff

-against-

Motion Seq. No. : 07,

Motion Date: 04/06/05

McCARTHY, SAFRATH & CARBONE, P.PAT McCARTHY and RICHARD SAFRATH,

xxx

Defendants.

The following paper read on ths motion:Notice of Motion ..................................Notice of Cross Motion ........................Affidavits in Opposition and Reply......

The motion brought by the defendants, in the above-captioned action, for an order

of this Court, pursuant to CPLR 3212, granting summar judgment in favor of the

defendants dismissing the plaintiff s complaint, is granted.

The cross-motion by the plaintiff, for an order of ths Court, pursuant to CPLR

3212, granting the plaintiff summar judgment as to the defendants ' liabilty and

pursuant to 22 NYCRR Section 130- 1.1 , imposing sanctions and costs upon the

defendants, is denied in all respects.

Based upon all the papers submitted for this court' s consideration, the court makes

the following findings of fact:

Moran v. McCarhy

On or about November 20, 2000, the plaintiff herein, James Moran, was served

with a Summons and Complaint in an action captioned:

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NASSAU

-------------------------------------------------

--------------- x

MONA GIOVANNIPlaintiff, Index No. 17491/00

-against-

JAMES MORAN d//a THE CABINET EMPORIUM

Defendant.---------------------------------------------------------------- x

The defendant therein defaulted in appearng and interposing an answer in the said

action.

Thereafter, the plaintiff in the said action brought a motion, on notice to the

defendant therein, by service upon the defendant of the notice of motion and the RJI on

August 20 2001. That motion was granted and thereafter On November 20, 2001 a

default judgment was entered by this Court in favor of the plaintiff and against the

defendant, upon the Court' s Memorandum Decision dated September 20 2001 , in the

sum of $36,000.00, together with interest from September 26, 1999, in the sum of

$19,926.00 and costs and disbursements in the amount of $485.00, totaling $56,411.00.

Moran v. McCary

On or about August 20, 2002, the plaintiff herein hired the law firm of McCary,

Safrath & Carbone, P.C., a defendant herein, to move ths Court to vacate the hereinabove

described default judgment.

On or about Januar 9, 2003 , the said law firm by order to show cause moved ths

Court for an order, pursuant to Rule 5015(a)(1) of the CPLR, vacating the subject default

judgment.

By order of Mr. Justice Marin E. Segal, dated March 19, 2003, the Cour found:

The motion brought by Order to Show Cause by the defendantin the above-captioned action, for an order of this Court,pursuant to Rule 5015(a)(I) of the CPLR, vacating the defaultjudgment, entered herein on November 20 2001 , is denied.

It is axiomatic that to vacate a default judgment, the movantmust demonstrate both a reasonable excuse for the default and

meritorious defense to the action. See, Ralph Dimaio

Woodworking Co., Ameribuild Const. Mgmt., Inc. 2002 NYSlip Op. 09744 (2d Dept.. , 12/23/02). Furtermore, Rule5015(a)(I) of the CPLR requires such a motion to be madewithin one (1) year of the entr of the subject motion. (sic)

Initially, the Court finds that the instant motion, having beenbrought on Januar 9 , 2003, is untimely. See, Nahmani TownofRamapo, 262 AD2d 291.

Additionally, this Court' s review of the moving papers finds thedefendant' s affidavit in support of the instant motion insufficientto establish a meritorious defense, where he simply opines:

I have a meritorious defense to the allegations and issuesraised in the complaint herein, and strongly desire toexercise my entitlement to my day in Court.

Moran v. McCarhy

Furtermore, both counsel's affirmation and the defendantsaffirmation in support of the instant motion do not establish ' lawoffice failure' as the purported excuse for the defendant's

default herein. A mere recital that: ' I subsequently engaged theservices of my attorney, Margaret Hurst, to represent me andinterpose an answer to the complaint' is insufficient to establishlaw office failure. ' See, Inc. Vilage of Hempstead Jablonsky,

283 AD2d 553.

Accordingly, the defendant having failed to establish both areasonable excuse for his default and a meritorious defense, hismotion is denied in all respects. Cilindrello Rayabin, 297AD2d 699; Roussodimou Zafiriadis 283 AD2d 568.

Thereafter, by motion returnable before this Court on May 5, 2003, the defendant,

pro se, sought relief, deemed by the Court to be pursuant to Rule 2221(d) of the CPLR,

and such was denied by a short form order of this Court dated May 20, 2003.

The defendant pro se then appealed from the said May 20, 2003, order of this

Court to the Appellate Division Second Judicial Deparent, which Court, on October 4

2004, dismissed the defendant' s appeal.

With respect to a meritorious defense to the allegations and issues raised in the

Complaint in the underlying action:

In support of his motion to reargue, James Moran avered, under oath:

On or about October 20, 1995 I was hired by PaceConstrction, (a general contractor), to fabricate deliver andinstall custom designed kitchen cabinets and other misscalenous(sic) cabinetr. Not by plaintiff as alleged in plaintiff s FIFTHof plaintiff s verified complaint.The total cost was $36 000.00 not $32 000.00 as plaintiffalleges.

I received a $2000.00 deposit to star. (Exhibit " ) I ordered

Moran v. McCarhy

some basic materials according to rough blueprint drawings.

Since this was such a small deposit for this type of project I wasto receive regular payments as work progressed.

Through no fault of mine, completed detailed and reviseddrawings were not supplied until December 4, 1996 more than70 weeks after the star of the contract.

Plaintiff SEVENTH alleges that according too (sic) the contractwork was to be preformed (sic) in 12 to 14 weeks.How is this possibly (sic) when revised drawings were notcomplete until more than 70 weeks after contract date.

Plaintiffs (sic) TWELFTH states that in fact cabinets weredelivered up to and including Januar 11, 1997. Just 38 daysafter last revised drawing according to plaintiffs (sic) SIXTH ofverified complaint

After delivery we noticed cracks starng to develop in thelacquer finish. After close inspection it was determned that thelacquer was defective.

Lacquer was supplied by an outside supplier.

* * *

At the customers (sic) request cabinets were installed in ' as iscondition. I also constrcted 'and installed temporary micacounter tops at no additional cost. So plaintiff could have fulluse of the kitchen. Due too (sic) stage financing on newconstruction. Plaintiff was due a payment on installation kitchen.All cabinets were then removed, brought back to the shop,strpped down too (sic) bare wood, and refinished. At defendants(sic) sole expense.I neither accepted nor ask (sic) for any payments until such timethat cabinets were free of defects.All cabinets were then reinstalled with the exception of two andsome miscellaneous pieces.At which timt? payments were to begin again.I even assisted in the installation of the granite counter tops.(Supplied and installed by a sub contractor)

Because contractor or homeowner (plaintiff) refused to make the

Moran v. McCary

necessar payments no further delivers (sic) were to be made.

On several occasions I phone (sic) both contractor and plaintifftold them that the remaining cabinets were ready for delivery infact on one occasion I attempted to deliver but no one wasprepared too (sic) make the payments.

Plaintiff is still in possession of cabinetr and in enjoying thebenefits of same. Although not paid for.I spoke to a fellow sub contractor and he informed me that theremaining cabinets were finished. Its (sic) clear to see thatplaintiff hired another cabinet maker too (sic) supply the lastfew pieces at a much reduced price.

The fact that the lacquer cracked was not due too (sic) poorworkmanship. "

* * *

On or about November 20, 2000 I was served with the Summonsand Complaint.My attorney at the time was Margaret Hurst.Previous to the summons and complaint I discussed several legalsituations with Mrs. Hurst.One of which was the possibilty of suing the cOntractor fornonpayment.Mrs. Hurst was completely famliar with all of the facts andcircumstances, and was retain (sic).Once I received the summons and complaint I sent it directly toMrs. Hurst.I never received any other notices.Only after Mrs. Hurst failed to appear several times on anothermatter did I realize there was a problem.Some months later I receive (sic) a letter from another attorneystating that Mrs. Hurst had retire (sic) from the practice of lawIt took sometime to rectify the problems she cause (sic) byfailng to notify me or to return my retainer.

In his brief before the Appellate Division, James Moran opined:

Moran v. McCary

On or about October 20, 1995 James Moran d//a TheCabinet Emporium herein after "appellant" was hired by aGeneral Contractor Pace Home Improvement Corp. hereinafter "Pace" to construct, deliver and install custom kitchencabinetr for 36 Evans Drive, Brookvile, New York a housebeing built but not yet occupied, allegedly to be owned by JoeGiovanni and Mona Giovanni.

On or about November 8, 2000, Mona Giovanni herein afterrespondent commenced an action against appellant. (p. 71-76)In said action respondent alleges that there existed a contractbetween the respondent and the appellant. That allegedcontract was for, a total of thiry-two thousand ($32 000.00)dollars, and that respondent allegedly paid appellant twenty-nine thousand five hundred ($29,500.00) dollars. Respondentalso alleges that said contract was to be completed in 12weeks and that appellant failed to produce qualty cabinetr.

* * *

Appellant was hired by a General Contractor "Pace" to builddeliver and install custom cabinetry for a house being builtbut not yet occupied, at 36 Evans Drive, Brookvile, NewYork allegedly to be owned by Joe Giovanni and respondentMona Giovanni. Pace was the General Contractor who hiredsub-contractors to perform varous projects on the house. Pacefailed to make the payments as required. Therefore appellantrefused to deliver the last few cabinet pars until payment wasreceived. Respondent refused to pay appellant stating thatpayment she (sic) be gotten from Pace.

Respondent commenced the underlying action in retaliationfor appellant not completing the cabinetr.

Respondent makes no reference as to what type of contractallegedly existed verbal, written, nor does she offer anyevidence of a contract between the paries. Because a contractjust does not exist.

Respondent also knew that she did not make payments to

Moran v. McCarhy

appellant as alleged.

The plaintiff herein has premised his reasonable excuse for his default in the

underlying action upon the "law office failure" of attorney Margaret Hurst to interpose an

answer to the complaint in the underlying action.

Sometime in the year 2001 , James Moran filed a complaint with the Grievance

Commttee for the Tenth Judicial Distrct against attorney Margaret Hurst to which Ms.

Hurst responded to the Grievance Commttee by letter dated May 3, 2001 in which Ms.

Hurst stated:

I am in receipt of your letter of April 18, 2001 that wasforwarded to my former office. I am no longer activelyengaged in the practice of law and reside at the above address.

Mr. Moran refers to two cases that he engaged me to handleand I therefore presume they are two of the thee matters thatI actually did pursue. The first was a commercial landlord andtenant matter where I not only obtained a judgment in favor ofMoran Enterprises , Mr. Moran s Company, but obtained theactual warant of eviction. A copy of both the judgment andwarant are attached.

In a second matter, I defended an action for Mr. Moranagainst whom a default judgment had been entered. Thatmatter is A Cut Above Granite, Marble Stone, Inc. MoranEnterprises, Inc. d//a The Cabinet Emporium. The indexnumber in Fourt Distrct Court was 458-00. In that matter Iprepared an Order to Show Cause to vacate Mr. Morandefault. My last activity on that case was to file a reply briefon August 21 , 2000 in Hicksvile.

The final matter I handled for Mr. Moran was his Chapter

Moran v. McCarhy

petition in bankrptcy filed in the Eastern Distrct inBrooklyn. In that matter I expended in excess of 14 hours thathave been transmitted to the Court that wil set my final fee (itwil exceed $3,200). The flat fee retainers for the two stateDistrct Court matters were included in the Chapter petition. I drew down against all fees, which were maintainedin my IOLA account as is required by bankptcy rules , andwil be entitled to additional fees when the bankptcy courtconcludes the matter.

Mr. Moran gave me $6 700 (not $4 000 as he states), $2 700in third pary checks and $4 000 directly, which heacknowledged were given to me for the purpose ofrepresenting him in these matters. That too was disclosed tothe bankrptcy court. I have $2 200 remaining in my IOLAaccount that cannot be released without an order of thebankrptcy court or the Chapter 7 trstee if it is converted.

. I provided more and more complex representation of Mr.Moran that I wil ever be compensated for. Mr. Moran wasnotified in writing on November 2 2000 that I was retiringfrom the practice of law for health reasons. He was alsoadvised in writing on November 2 2000 that if he wished tocontact me he could contact the attorney who was handlingthe wind up of my practice, Adrenne Flipse Hausch, 194 OldCountr Road, Mineola, New York 11501. Telephone (516)741-2000. To my knowledge, Mr. Moran never contacted Ms.Hausch. He did leave a message on my answering machineapproximately one week ago, after I received this complaint.

I hope ths answers any que tions you may have.

Thereafter, James Moran and Moran Enterprises, Inc. commenced a breach of

contract and legal malpractice action captioned:

Moran v. McCary

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NASSAU------------------------------------------------------------------ J(JAMES MORAN and MORAN ENTERPRISES, INC.

Plaintiffs,-against- Index No. 1660312003

MARGARET HURST, HOWARD WUNDERLICH,ADRIENNE FLIPSE HAUSCH and HEATH BERGEN

Defendants.------------------------------------------------------------------ J(

By a short form order of Justice Zelda Jonas, of this Court, dated Januar 7 , 2005

the Court granted the motion of Margaret Hurst for an order pursuant to Rule 3212 of the

CPLR awarding Ms. Hurst summar judgment dismissing the aforesaid breach of contract

and legal malpractice action, determning:

The Court holds that Ms. Hurst has made a prima facieshowing that there was no attorney-client relationship betweenher and the plaintiff. Since the plaintiff has not controverted thisshowing, Ms. Hurst is granted summar judgment dismissingthe plaintiff s complaint and all cross-claims asserted againsther. "

Based upon all the papers submitted for this Court' s consideration, the hereinabove

set fort findings of fact, and the determnation of Justice Zelda Jonas, the Court herewith

finds and determnes , as a matter of law , that James Moran has not demonstrated either a

reasonable excuse for his default or a meritorious defense to the underlying action which

is the subject matter of the instant motion.

The rule in motions for summar judgment has been stated by the Appellate

Moran v. McCary

Division, Second Deparment, in Stewart Title Insurance Company Equitable Land

Services, Inc. 207 AD2d 880, 881:

It is well established that a pary moving for summarjudgment must make a prima facie showing of entitlement as amatter of law, offering sufficient evidence to demonstrate theabsence of any material issues of fact (Winegrad New YorkUniv. Med. Center 64 NY2d 851 , 853; Zuckerman City ofNew York, 49 NY2d 557, 562). Of course, summar judgmentis a drastic remedy and should not be granted where there is anydoubt as to the existence of a trable issue (State Bank

McAulife 97 AD2d 607), but once a prima facie showing hasbeen made, the burden shifts to the pary opposing the motionfor summar judgment to produce evidentiar proof inadmissible form sufficient to establish material issues of factwhich require a tral of the action (Alvarez Prospect Hosp., 68NY2d 320, 324; Zuckerman City of New York, supra, at 562).

The thee (3) causes of action set fort in the plaintiff's complaint, in the instant

action, i.e., legal malpractice, breach of contract and unjust enrchment are all premised

upon the attorney defendants ' alleged failure to effect a vacatur of the default of the

plaintiff herein, James Moran, in the underlying action, which resulted in a default

judgment to be entered against James Moran, as the defendant therein.

An action for legal malpractice requires proof of the attorney s negligence, a

showing that the negligence was the proximate cause of the injury and evidence of actual

damages. See, Mendoza Schlossman, 87 AD2d 606; Marshall Nacht, 172 AD2d 727

and Murphy Stein 156 AD2d 546. In order to survive dismissal, the complaint must

show that but for counsel' s alleged malpractice, the plaintiff would not have sustained

some ascertainable damages. See, Ashton Scotman, 260 AD2d 332 and Saferstein

Moran v. McCarhy

Klein 250 AD2d 831.

A failure to establish proximate cause requires dismissal regardless of whether

negligence is established. Notwithstanding counsel' s purported negligence,. the client

must demonstrate his or her own likelihood of success; absent such a showing, counsel's

conduct is not the proximate cause of the injury. The " (r)emedy relies on prima facie

proof that (the client) would have succeeded. " See, Price Herstic 240 AD2d 151 , 152;

see also, Davis Klein 88 NY2d 1008 and Ashton Scotman, supra.

The plaintiff herein, in order to establish the element of proximate cause and

damages, must show that he would have been successful in vacating his default, in the

underlying action, had the defendants exercised due care. See, Campagnola

Mulholland, Minion Roe 76 NY2d 38; Kerson Co. Shayne, Dachs, Weiss,

Kolbrenner, Levy Levine, 45 NY2d 730; Ostriker Taylor, Atkins Ostrow, 258

AD2d 572 and Raphael Clune, White Nelson, 201 AD2d 549.

Furtermore, a failure to submit an affidavit from an expert in a legal malpractice

action is a fatal deficiency. See, Schadoff Russ, 278 AD2d 222 and Greene Payne,

Wood Littlejohn, 197 AD2d 664. Here, the plaintiff has not submitted an affidavit

from an expert setting fort the standard of care under the circumstances faced by the

defendants and that the defendants depared from that standard of care.

The defendants having sustained their initial burden on their motion for summar

judgment, i.e. , the plaintiff herein, James Moran, was not possessed of either a reasonable

Moran v. McCary

excuse for his default in appearng and interposing an answer in the underlying action or a

meritorious defense to the said action, the burden of coming forward with proof, in

evidentiar form, establishing that the movants are not entitled to summar judgment

shifts to the Plaintiff herein. See, Zuckerman City of New York, supra.

In opposition to the defendants ' motion and in support of his own cross-motion

the plaintiff's opposition and cross-motion are devoid of an expert' s affidavit and his own

affidavit is copiously replete with hearsay and his own unsupported conclusions. Thus

the plaintiff, in opposition to the defendants ' motion , has failed to raise a trable issue of

fact. See Crawford McBride 303 AD2d 442 and Pierre Modeste, 204 AD2d 613.

Accordingly, the defendants ' motion for summar judgment dismissing the

plaintiff s complaint, is granted and the plaintiff's complaint is dismissed in its entirety.

Therefore, the plaintiff's motion for summar judgment is denied.

This Court would be remiss if it did not address the plaintiff's application for the

imposition of sanctions and costs, pursuant to 22 NYCRR 130- 2 (mistakenly referenced

as 22 NYCRR 130- 1.1). The aforesaid application is premised upon the plaintiffs

assertion that: "The Court specifically instrcted both pares that no summar judgment

motions would be allowed until after the Note of Issue was filed.

This Court s examnation and review of the entie record of the instant action finds

that no such direction was made by the Court herein.

The Plaintiff would be well advised to carefully consider Par 130 of the Rules of

Moran v. McCary

the Chief Administrator before makng another procedurally and/or substantively

defective motion.

This constitutes the decision and order of the court.

This concludes this action.

Dated: May 12, 2005

xxx ENTEREDMAY 1 6 20G5

u COuNTYIe CLERK' OFFtCF