BRADLY VS ALONGE INDEX NO. HO5294

 

BRADLEY V. YORK INDEX NO. HO8914

BRADLY VS ALONGE INDEX NO. HO5294


BRADLEY V. YORK INDEX NO. HO8914

 

DECISION and ORDER


There are 5 motions in these two cases.

Bradley vs. Alonge is a negligence action in which Mr. ("York") represented plaintiff Bradley until October 14, 1993, when Bradley and Attorney Humble ("Humble") signed a consent seeking to substitute Humble as his counsel in this action. Humble sent the consent to York requesting the file, but, made no mention of attorney's lien.


October 1993; York called Humble; 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 he would have to honor lien for attorneys fees and disbursmens; that further delay in directly communicating with me 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 returned stipualtion of substition.


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; this 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.


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 change 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 SOL 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 HO8914 and seek sanctions.


The malpractice action should never have been commenced. Why Humble leveled these causes of action at this point in time is beyond the grasp of this Court. At best, the malpractice action was premature. There has been no dismissal of the negligence suit because of the SOL; no injury yet to Bradley; no claim of SOL except in the Humble papers.


As for the suggestion York's settlement of the Chimera claim

prejudiced Bradley, Humble could have referred the client to the Grievance Committee of the Bar Association, although as it turns out, Chimera's settlement came from Bradley's carrier, not 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 SOL, although it was pled in his answer. In fact, he asked the Court for a preliminary conference so the case could move ahead.


The problem is that York could not handle the Bradley negligence action with Bradley's malpractice case pending against him; Humble could not proceed without the file; but, once he 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 auto negligence case was in limbo.


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 Bradley policy for Chimera's claim; 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 disbursments 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 on recovery as a condition of substitution and discontinuance borders on the unethical.


Perhaps York could have turned over the Bradley file subject to his lien and put the carrier on notice, or, initiated a move to be relieved as counsel and ask the Court to resolve the question of his attorney lien for $283.70 in disbursements and fees. It is unrefuted, however, that he made early attempts to resolve the matter amicably but his telephone calls and correspondence went unheeded.


York should not have held the file hostage for any price, especially after the Court, in Chambers, suggested to counsel that he transfer the file and receive payment on settlement or disposition of the suit.


Nor should York have undertaken both the passenger's action and that of Bradley, the driver, notwithstanding full disclosure and consent of the client, especially where the passenger was making a claim against Bradley.


However, while York's position on his lien provoked the initial reactions, none of his actions or nonactions justified the course taken by Humble.


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 and suggests he apply any fee he may receive to the obligations under this order.

 

A hearing is hereby scheduled for 1995, for Scott Humble, Esq. to show cause why sanctions and attorneys fees should not be assessed against him; Attorney York is to participate in the hearing.


The Court will rescind this Order for a Sanction hearing upon proof Humble has:

 

(1) Within 30 days, presented to the Court the name of a senior attorney, as mentor, with whom he has confered and presented his entire files on the Bradley v. York, and Bradley v. Alonge cases, including this decision, pleadings, correspondence and papers sent by other counsel on these two cases, for advise, counseling, instruction, and edification on what should have been done on these cases with the objective of avoiding repetition; and for advise on what should be done about the pending action against Alonge; and possibly to continue to serve as mentor to Mr. Humble.

2. Paid, or made arrangments to pay, the fees of his mentor.

3. Paid the attorney fees and costs awarded by this Order or signed an agreement to pay the fees on the instalment basis provided herein, and to pay the costs in thirty days.

 

The Court confirms York has turned the Bradley negligence files over to Attorney Humble; that York has a lien thereon for the $283.70, plus reasonable fees to be determined by this Court for work done to date, to be paid on settlement or verdict, if any.


Within 30 days of presentation by York to him of an itemized bill for those disbursements, Mr. Bradley is to pay any portion thereof not attributable to David Chimera.


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 Noevember 30, 1994; he also appeared before this Court on Decmeber 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, Mr. 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 frivilous malpractice suit.


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


The Court declines to award full attorney fees to York. For the purposes of this order, Attorney fees of $2500, plus motion costs, are hereby awarded to Attorney York, to be paid in monthly instalments of $50.00, without interest. By paying $1500, plus motion costs, within 90 days of this order, Mr. Humble can satisfy in full the attorney fee obligation to Mr. York.


$2,500 is awarded to Saperston & Day, P.C., to be paid in monthly instalments of $100, or may be fully satisfied by a payment of $1500 in 60 days of this order.


Motions # 1 and # 4 of plaintiff for leave to amend the complaint are denied with $100 costs to defendant; Motions # 2 and # 3 to dismiss the Bradley v. York complaint are granted with $100 costs.


The action of Bradley vs. York, HO8914, is dismissed.


The Court hereby schedules a status conference in the Bradley and David Chimera actions against John C. Alonge, Jr., for February at 10:30 AM on that day. Messrs. York and Humble are directed to appear along with plaintiff James T. Bradley. Mr. Humble is to prepare and submit to this Court by January ____1995 a pretrial statement on the facts of the negligence case.