Defendants Gregory J. Cannata & Associates and Gregory J. Cannata, Esq. ("Cannata") move pursuant to CPLR 3211 (a) (1) and (7) for an order dismissing the Verified Complaint. Plaintiffs Law Offices of E. Abel Arcia and Eloy Abel Arcia ("Arcia") oppose the motion.

"The right to contribution ... among alleged multiple wrongdoers arises when they each owe a duty to plaintiff or to each other and by breaching their respective duties they contribute to plaintiffs ultimate injuries" (Trustees of Columbia Univ. in City of NY v Mitchell/Giurgola Assocs., 109 AD2d 449, 454, [1st Dept 1985]). To sustain a claim for contribution against Cannata, Arcia has to demonstrate that Cannata owed a duty to Portillo (see id. at 454).

Arcia and Cannata represented Portilla at different times in the Personal Injury Action. Thus, each owed a duty of skill and care to Portilla. An attorney sued for malpractice may assert a claim for contribution against another attorney whose "negligence contributed to or aggravated a plaintiff's injuries" (Schauer v Joyce, 54 NY2d 1, 6 [1981]).

Portilla retained Arcia on or about April 2002 and Arcia commenced the lawsuit on June 22, 2004 (Portilla Malpractice Complaint at ¶¶ 46-47). Portillo terminated Arcia prior to the expiration of the statute of limitations on Portilla's claim (Affirmation of John Tumelty in Opposition to Motion to Dismiss ["Tumelty Affirm."] at ¶ 3). Portillo retained Cannata and advised Arcia to cease work on the initial action on December 23, 2004 (Windels Affirm. Ex. 6, letter dated December 23, 2004). Though Portilla executed the Consent to Change Attorney form in December 28, 2004 (Windels Affirm., Ex. 3, Consent to Change Attorney), Cannata did not receive the executed original from Arcia until at least January 13, 2005 (id., letter dated January 13, 2005), one day after the statute of limitations for the initial action expired (Windels Affirm., Ex. 5, Order dated April 21, 2006). Cannata did not receive the file until on or about January 15, 2005 (see Tumelty Affirm. at ¶ 3). Thus a substantial portion of the damages allegedly suffered by Portilla occurred before Cannata received the file (Schauer, 54 NY2d at 6-7 [client occurred substantial damages after she retained her second attorney]). [*4]

Though New York courts have recognized a claim for contribution by an attorney who is defending a legal malpractice action (id. at 3-4), a defending attorney may impute another attorney's negligence to the plaintiff without contribution (see Hercules Chemical Co. v North Star Reinsurance Corp., 72 AD2d 538, 538 [1st Dept 1979]). In Hercules, the third-party plaintiffs filed a complaint against the third-party defendants' attorneys for contribution for alleged negligence in providing legal services to the first-party plaintiff (id.). The third-party plaintiffs raised the attorneys' negligence as affirmative defenses in its answer, "limiting the plaintiff's recovery against the defendant third-party plaintiff, under the comparative negligence standard" (id.). The court stated that the "third-party plaintiff's concern that it will be unable to impute the attorneys' negligence to the plaintiff and that it requires contribution to reach the same result is ill founded" (id.).

Also in Ames Associates v ABS Partners Real Estate LLC, 06 Civ 928 (TPG), 2010 LEXIS 22365 (SD NY 2010), the court dismissed a third-party complaint for contribution through agency principles. The court held that "where the actions and state of mind of an agent are imputed to the principal, there is no need to bring a third-party action seeking contribution by plaintiff's agent for its share' of damages" (id. at *10; see also Gabriel Capital, L.P. v NatWest Fin., Inc., 137 F Supp 2d 251 [SD NY 2000]).

In Connell v Weiss, 1985 US Dist LEXIS 21638 (SD NY 1985), the case relied on by Defendants, the attorney (Weiss) for a seller on a real property transaction commenced a third-party action for indemnification or contribution (id. at *3). Similarly to the case at bar, in its answer to the original complaint, Weiss raised the defense that if the "plaintiffs were injured . . . then the injury was caused or contributed to by the carelessness, negligence or other culpable conduct of the parties or their agent " (id. at *11). The court dismissed the claim for contribution (id. at *12). The court held that "under the New York comparative negligence doctrine any culpable conduct by [the agent] is imputable to the principle. Thus any recovery by [the principle] against Weiss [(defendant/third-party plaintiff)] would be subject to an appropriate reduction for [the principle's agent's] negligence" (id.). The court also noted that the claim for contribution was unnecessary (id., citing Hercules Chemical Co. v. North Star Reinsurance Corp., 72 AD2d 538 [1st Dept 1979] and Eurocom, S.A. v Mahoney, Cohen & Co., 522 F Supp 1179 [SD NY 1981]).

In its Verified Answer to the Portilla Malpractice Complaint, Arcia argues as an affirmative defense that the damages recovered by Portilla should be reduced in proportion of Portilla's culpable conduct (Arcia Verified Answer at 3). Arcia also contends in its eighth affirmative defense that any damages recovered by Portilla should be reduced by the culpable conduct of third parties who caused the damages (Arcia Verified Answer at 4). Given that Cannata represented Portilla, any negligence on Cannata's part should be imputed to Portillo (Ames Associates, 2010 LEXIS 22365 at *10; Connell, 1985 U.S. Dist. LEXIS 21638 at *12). Therefore, there is no need for a separate cause of action for contribution (see Hercules Chemical Co., 72 AD2d at 538). Cannata's motion to dismiss is granted. [*5]

Accordingly, it is

ORDERED that Defendants' motion to dismiss the verified complaint is GRANTED.

This constitutes the Decision and Order of the Court. Dated: New York, New York

November __, 2010

E N T E R



Hon. Eileen Bransten, J.S.C