        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

249
CA 10-02291
PRESENT: SCUDDER, P.J., FAHEY, CARNI, GREEN, AND GORSKI, JJ.


PHILIP D. RUPERT, JR., PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

GATES & ADAMS, P.C., DOUGLAS S. GATES,
ANTHONY J. ADAMS, JR., AND MICHAEL J. TOWNSEND,
DEFENDANTS-RESPONDENTS.


ALFRED P. KREMER, ROCHESTER, FOR PLAINTIFF-APPELLANT.

HISCOCK & BARCLAY, LLP, ROCHESTER (ROBERT M. SHADDOCK OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (James
P. Murphy, J.), entered August 20, 2010 in a legal malpractice action.
The order granted the motion of defendants for summary judgment
dismissing the amended complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in part and
reinstating the amended complaint, as amplified by the bill of
particulars and supplemental bill of particulars, against defendants
Gates & Adams, P.C. and Douglas S. Gates concerning their
investigation and valuation of plaintiff’s separate property, their
investigation of the payment of the sum of $315,000 relative to a note
held by plaintiff and their investigation of the deposit by plaintiff
of approximately $60,000 in pension monies into a joint account and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this legal malpractice action
alleging, inter alia, that defendants were negligent in representing
him during the trial of a matrimonial action and on a subsequent
appeal. In a prior appeal concerning the instant legal malpractice
action, we determined, inter alia, that Supreme Court (Sirkin, J.)
erred in granting defendants’ cross motion seeking summary judgment
dismissing the complaint (Rupert v Gates & Adams, P.C., 48 AD3d 1221).
In this appeal, we conclude that Supreme Court (Murphy, J.) erred in
granting those parts of defendants’ subsequent motion for summary
judgment dismissing the amended complaint against defendants Gates &
Adams, P.C. and Douglas S. Gates insofar as the amended complaint, as
amplified by the bill of particulars and what we deem to be a
supplemental bill of particulars, alleges that those two defendants
were negligent in their representation of plaintiff in the matrimonial
action with respect to their investigation and valuation of
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                                                         CA 10-02291

plaintiff’s separate property; their investigation of the payment of
the sum of $315,000 relative to a note held by plaintiff; and their
investigation of the deposit by plaintiff of approximately $60,000 in
pension monies into a joint account. We therefore modify the order
accordingly. We agree with defendants Anthony J. Adams, Jr. and
Michael J. Townsend to the extent that they contend, as an alternate
ground for affirmance with respect to them (see Parochial Bus Sys. v
Board of Educ. of City of N.Y., 60 NY2d 539, 545-546; Cataract Metal
Finishing, Inc. v City of Niagara Falls, 31 AD3d 1129, 1130), that
they cannot be held liable because they were not negligent in their
limited involvement with the matrimonial action (see Business
Corporation Law § 1505 [a]). We therefore conclude that the court did
not err insofar as it granted summary judgment dismissing the amended
complaint against those two defendants.

     As a threshold issue, we reject plaintiff’s contention that the
court erred in entertaining defendants’ present motion for summary
judgment. Although plaintiff is correct that successive motions for
summary judgment are generally disfavored (see Giardina v Lippes, 77
AD3d 1290, 1291, lv denied 16 NY3d 702), here much of the discovery
relevant to the instant motion was conducted after defendants’ prior
cross motion for summary judgment, and there was thus a sufficient
basis for the instant motion (see id.; Taillie v Rochester Gas & Elec.
Corp., 68 AD3d 1808, 1809-1810). There is no merit to plaintiff’s
further contention that the affidavit submitted by the attorney for
defendants, to which various exhibits were attached, was insufficient
to support the motion (see CPLR 3212 [b]; Rivas v Metropolitan
Suburban Bus Auth., 203 AD2d 349, 350).

     Plaintiff further contends that the court erred in concluding
that it was required to grant defendants’ instant motion on the ground
that the prior determination of Justice Sirkin that plaintiff’s
failure to perfect an appeal from the final judgment in the
matrimonial action barred this legal malpractice action was the law of
the case. We agree with plaintiff. Although our decision in the
prior appeal does not so indicate (Rupert, 48 AD3d 1221), the issue
whether this legal malpractice action is barred by plaintiff’s failure
to perfect an appeal from the judgment in the matrimonial action was
before us on that appeal. As previously noted, we determined that
Justice Sirkin erred in granting defendants’ cross motion for summary
judgment dismissing the complaint (id.). In so ruling on the merits
of the cross motion, we necessarily rejected the very premise upon
which the court denied the instant motion for summary judgment and,
although the doctrine of law the case applies to courts of coordinate
jurisdiction, it does not apply herein in light of the decision of
this Court on the prior appeal (see generally Matter of El-Roh Realty
Corp., 74 AD3d 1796, 1798).

     Addressing next those parts of the motion seeking summary
judgment dismissing the amended complaint against Gates & Adams, P.C.
and Douglas S. Gates (hereafter, defendants), we conclude that the
vast majority of the allegations of legal malpractice in the amended
complaint, as amplified by the bill of particulars and supplemental
bill of particulars, are lacking in merit. Indeed, defendants met
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                                                         CA 10-02291

their initial burden on the motion with respect thereto, and plaintiff
failed to raise an issue of fact in opposition (see Pignataro v Welsh,
38 AD3d 1320, lv denied 9 NY3d 849; see generally Zuckerman v City of
New York, 49 NY2d 557, 562). Although certain allegations of
malpractice have merit, they do not warrant the reinstatement of the
amended complaint with respect to them. Specifically, plaintiff is
correct that defendants erred in failing to contend in the matrimonial
action that the court in that action should not value the entire
contents of $54,725 in household goods as an asset of plaintiff and
should not double-count an assessment of moving expenses levied
against plaintiff. In addition, defendants failed to obtain a proper
valuation of certain Canadian real property owned by plaintiff.
Nevertheless, we conclude that the court did not err in granting
defendants’ motion concerning those alleged errors because they could
have been corrected on an appeal from the final judgment in the
matrimonial action, and plaintiff consented to the dismissal on the
merits of any appeal in the matrimonial action as part of the global
settlement resolving a bankruptcy proceeding in which he was involved.
In doing so, plaintiff precluded pursuit of the very means by which
defendants’ representation of plaintiff in the matrimonial action
could have been vindicated (see e.g. Rodriguez v Fredericks, 213 AD2d
176, 178, lv denied 85 NY2d 812; cf. N. A. Kerson Co. v Shayne, Dachs,
Weiss, Kolbrenner, Levy, 59 AD2d 551, affd 45 NY2d 730, rearg denied
45 NY2d 839). We therefore conclude that plaintiff, by virtue of his
global settlement, waived the right to raise those shortcomings in
this legal malpractice action.

     We further conclude, however, that the foregoing waiver analysis
does not apply with respect to plaintiff’s aforementioned claims that
defendants were negligent with respect to the investigation and
valuation of plaintiff’s separate property, their investigation of the
payment of the sum of $315,000 relative to a note held by plaintiff,
and their investigation of the deposit by plaintiff of approximately
$60,000 in pension monies into a joint account. Defendants failed to
meet their initial burden on those parts of the motion concerning
those claims (see Pignataro, 38 AD3d 1320; see generally Zuckerman, 49
NY2d at 562). The waiver analysis based on plaintiff’s global
settlement does not apply to those purported deficiencies in
defendants’ representation of plaintiff in the matrimonial action
because the appeal from the final judgment in the matrimonial action
would not have permitted defendants or substitute counsel for
plaintiff to address questions regarding the failure to trace
plaintiff’s separate property into the marriage and to locate evidence
both proving plaintiff’s payment of $315,000 on an outstanding note
and demonstrating that $60,000 of plaintiff’s pension monies had been
transferred to a joint account to be shared with plaintiff’s former
wife. Finally, defendants will not be heard to contend that
plaintiff’s involvement with the preparation of the matrimonial action
for trial bars him from raising those deficiencies. An attorney
generally is not permitted to shift to the client the legal
responsibility that the attorney was hired to undertake because of his
or her superior knowledge (see Northrop v Thorsen, 46 AD3d 780, 783).
Indeed, it is well settled that “[a]n attorney has the responsibility
to investigate and prepare every phase of his [or her] client’s case”
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                                                         CA 10-02291

(Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 453 [internal quotation
marks omitted]).

     Finally, we have reviewed plaintiff’s remaining contentions and
conclude that they are without merit.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
