STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

JAMES T. BRADLEY, and

DAVID CHIMERA,


Plaintiffs,


-vs- Index #H-05294


JOHN C. ALONGE, JR.,


Defendant.


 

JAMES T. BRADLEY,


Plaintiff,


-vs- Index #H-08914


BRIAN CHAPIN YORK,


Defendant.


 



SCOTT F. HUMBLE, ESQ.

for Plaintiffs



SAPERSTON & DAY, P.C.

(Albert J. D'Aquino,

Esq. of Counsel) for

Defendant York



BRIAN CHAPIN YORK, ESQ.,

Pro Se


 

DECISION and ORDER



GERACE, J.


There are 5 motions in these two cases. H02594, Bradley and Chimera vs. Alonge, is a negligence action in which Mr. York ("York") represented both plaintiff Bradley, the driver, and his passenger, the owner of the vehicle, plaintiff Chimera, until October 14, 1993, when Bradley and Attorney Humble ("Humble") signed a consent seeking to substitute Humble as his counsel in the action of Bradley and Chimera vs Alonge. Humble sent the consent to York requesting the file, but, made no mention of attorney's lien.


In October 1993; York called Humble to discuss the situation; no response.


December 3, 1993; York sent a letter to Humble requesting he contact York about the case; asked that his fees be paid or otherwise protected; no response from Humble.


December 8, 1993: York wrote Humble about his willingness to cooperate in taking over case, but that Humble would have to honor his lien for attorneys fees and disbursements and that further delay in directly communicating with him on this matter could jeopardize Mr. Bradley's position.


December 10, 1993: letter Humble to York alleging he violated code of ethics; sent copy of his letter to Grievance Committee.


February 18, 1994: Humble sued York for malpractice.

 

May 12, 1994, York's malpractice counsel returned signed stipulation of substitution, offered to deliver files on payment of $283.70 in disbursements, demanded discontinuance of malpractice action.


Instead of pursuing the negligence action, Humble made a determination that the action was "deemed dismissed" under the new rules and decided to sue Mr. York for malpractice.


On June 20, 1994, Plaintiff moved for an order denying York any lien or fees and directing York to turn over the case files; the motion was granted, subject to attorneys liens for fees and expenses.


September 26, 1994, Humble moved to set aside the change of attorney to make York "clean up Mr. York's mess"; and moved for a declaratory judgment dismissing Bradley's negligence claim against Alonge. He had not yet received the file.


On the same day, Humble moved to amend the complaint in the malpractice suit, but did not enclose a copy of the proposed complaint. Because York interposed a defense to the malpractice action, Humble seeks sanctions and costs.


September 29th, the Court rendered an interim decision pointing out that the defendant Alonge was not a party to the proceedings and indicating that granting the Humble motion to rescind the substitution of attorneys would create a greater mess than it would resolve and ordered the attorneys to appear at an adjourned date.


The motions were adjourned to October 27, 1994. On November 9, 1994, the Court denied the Bradley motion to rescind the substitution of attorneys; directed that York had a lien based on quantum meruit; ordered that the Bradley file be delivered to Humble by November 14, 1994, and the motions for sanctions, attorney fees and costs be heard December 1, 1994.


Humble claimed the defense in the malpractice case was frivolous "as a matter of law, because the original matter (the negligence case of Bradley v. York) is 'deemed dismissed': but, the only one who deems the action dismissed is Mr. Humble."


He says York's alleged failure to properly institute the suit within the Statute of Limitations was malpractice as a matter of law; ergo, he should be punished for interposing a frivolous defense and for abusive conduct.


York and his malpractice carrier move for dismissal of the malpractice suit, Index HO8914, and seek sanctions.


The malpractice action should never have been commenced. At best, a malpractice action was premature. There has been no dismissal of Bradley's negligence suit because of the statute of limitations; no injury yet to Bradley.


As for the suggestion York's settlement of the Chimera claim against Alonge prejudiced Bradley, Humble could have referred the client to the Grievance Committee of the Bar Association. As it turns out from the affidavit of York, Chimera's settlement came from Chimera's own carrier for the negligence of Bradley, and not from Alonge.


Humble also filed a "supplemental" motion seeking summary judgment and amendment of the complaint against York, sanctions for abusive conduct and for a frivolous defense. The Court notes there is no provision for a supplemental motion in the CPLR. David Seigel doesn't mention supplemental motion, either, in his work on New York Practice.

Humble overcame an early omission by ultimately providing a proposed amended complaint, but he did not highlight or set out which of the 52 paragraphs constituted changes. But, none of the changes cure the basic problem here: there is no cause of action.


Humble's theory on the complaint and proposed amended complaint is that the underlying action is "deemed dismissed" and that "it is not legally possible to resurrect the underlying action; hence, Brian Chapin York is guilty of legal malpractice as a matter of law because he "allowed the original action to die a legal death". He says the only question is one of damages.


Humble was the only one seeking a judicial coroner's report on the underlying action. Counsel for the defendant Alonge has made no motion based on the Statute of Limitations, although it was pled in his answer. In fact, he asked the Court for a preliminary conference so the case could move ahead.


An attorney should not undertake to represent both the passenger and drive in an automobile negligence case unless there is a clear waiver and consent by both client. York obtained a consent from Bradley, but the record does not show whether one was obtained from Chimera.


Perhaps York should not have undertaken to represent both Chimera and Bradley in the first place, notwithstanding the fact that Bradley signed a "waiver" of the conflict of interest. But, having undertaken both cases, he could no longer proceed with the Bradley negligence action with Bradley's malpractice case pending against him; and, Humble could not proceed without the file.


However, when Humble finally received the file, he returned it to the Court December 1, 1994, on the ground he felt the consent to substitute was "null and void", inspite of the order of this Court confirming it. In the meantime, the Bradley and Chimera negligence cases against Alonge have been in limbo from October 93 to December 94 when Humble indicated he would pursue the case for Bradley.


THE MALPRACTICE COMPLAINT


Recital of and commentary on some of the causes of action claimed by Humble is painful, but, necessary.


The FIRST cause of action seeks $350,000 for damages, punitive and incidental, for allowing the legal death of the original action - but, no one has declared the action dead except Humble.


The SECOND cause is for breach of contract and promises, $650,000; the THIRD seeks $650,000 because York and the other plaintiff received money as a result of the accident; the FOURTH seeks another $350,000 for the improper service on defendant Alonge - but, no one has alleged improper service except Humble; a like amount for the FIFTH for neglecting to prosecute the action - but, the action is still pending; $350,000 for the SIXTH for failure to pay plaintiff out of settlement funds received - but, the only funds received came from the Chimera policy for Chimera's claim against Bradley, his co-plaintiff; the SEVENTH seeks a paltry $4 MILLION for failing to sue the State of New York for possible faulty design and maintenance - but, there is no description of that faulty design or maintenance; the EIGHTH seeks $20 MILLION for intentional infliction of mental distress; the TENTH another $20 MILLION for "lying to the plaintiff, by stating, that the matter was still legally pending , and that settlement negotiations were also pending" - but, the action is still pending; the ELEVENTH another $20 MILLION for punitive damages for failure to release the file; the TWELFTH an additional $20 MILLION for the infliction of mental anguish by failing to provide information.

Humble says York should have sued Alonge's father. However, it turns out the father did not own the automobile.


If Humble had addressed the question of attorneys lien and disbursements raised by York in October and December of 1993, and then expended as much time pursuing the claim of his client against Alonge as he expended pursuing York, his client may have had a settlement or at least seen some progress in his case in the time that has elapsed since Bradley sought to have him substituted as attorney.


Humble's insistence that York waive his lien for attorney fees as a condition of attorney substitution and discontinuance of the malpractice case was inappropriate on the facts before this Court.


There were avenues open to York. He could have turned over the Bradley file subject to his claim for a lien and put the carrier on notice, or, initiated a move to be relieved as counsel and asked the Court to resolve the question of his attorney lien and the $283.70 in disbursements he incurred.


There is some question as to whether some of those disbursements were incurred for the benefit of both plaintiffs, and not Bradley alone.

It is unrefuted, however, that York made early attempts to resolve the matter amicably but his telephone calls and correspondence went unheeded by Humble.


Mr. York indicates he has expended 79.1 hours from February 18, 1994, the date a summons was served on him seeking $25,000,000 for malpractice, to November 30, 1994; he also appeared before this Court on December 1, 1994.


Attorney hourly rates in this area range from a low of $75.00 and a high of $150.00. At $100 per hour, York has invested more than $7,910 of time in defense of the malpractice charge; has suffered the emotional trauma and embarrassment of having a grievance filed against him; and the emotional trauma from the frivolous malpractice suit. All of this a heavy price to pay for representing Bradley and Chimera.


The attorneys for York's malpractice carrier have invested 33.90 hours for a total of $3,202.00 in counsel fees and $211.96 in disbursements.


Humble says he will donate "one hundred (100%) percent of his net share of any recovery to the "March of Dimes" to "help improve the public perception of the legal profession". The Court relieves him of that pledge pending the final outcome of the motions for sanctions.

 

While sanctions may be appropriate, and may be considered by the Court, it is equally important, if not critical, that counsel have a greater appreciation and sensitivity to the level of professionalism and ethics required of attorneys. With that in mind, the Court refers this matter to the Ethics Committee of the Jamestown Bar Association for its recommendations.


Within 30 days of this Order, both Humble and York must contact the Grievance Committee of the Jamestown Bar Association, and make available to the Committee their entire Bradley v. York and Bradley and Chimera v. Alonge case files, including this decision, pleadings, correspondence and papers sent by other counsel on these two cases, for advice, counseling, instruction, and edification on what should have been done on these cases with the objective of avoiding repetition; for advice to both on what should be done about the pending actions against Alonge; and for their recommendations to the Court regarding the motions for sanctions; for such action as the Committee deems appropriate.


Motions #1 and #4 of plaintiff for leave to amend the complaint are denied with $100.00 costs to defendant; motions #2 and #3 to dismiss the Bradley v. York complaint are granted with $100.00 costs.


The action of Bradley v. York, H-08914, is dismissed.


The Court adjourns for further argument and hearing on the motions for sanctions, costs and attorneys fees made by York, his malpractice carrier, and Humble, to MONDAY, APRIL 24, 1995 at 1:30 P.M. and for York to Show Cause why the $283.70 in disbursements he incurred should not be shared by Chimera.


The Court will revisit this Order for a Sanction hearing upon receipt of a report and recommendations of the Jamestown Bar Grievance Committee regarding the conduct of counsel in these cases.


The Court hereby schedules a status conference in the Bradley and David Chimera actions against John C. Alonge, Jr., for March 31, 1995 at 10:00 A.M. Messrs. York and Humble are directed to appear along with plaintiffs Chimera and Bradley. Counsel are to prepare and submit to the Court by March 24, 1995, a pretrial statement on the facts and status of the negligence cases. A separate notice of the pretrial shall be sent to Colligan & Delgross, Esqs., counsel for Alonge.


This is the Decision and Order of this Court. No further order is necessary.


Dated: February 28, 1995

Mayville, New York


 

JOSEPH GERACE

Justice of Supreme Court