Papers considered: 1. Notice of Motion, dated May 18, 2021; Affidavit of David B. Cabaniss, Esq., sworn to May 13, 2021; with Exhibits A — HHH annexed; Affidavit of Lee C. Kindlon, Esq., sworn to May 17, 2021; with Exhibits A — D annexed; Memorandum of Law, dated May 18, 2021; Statement of Material Facts, dated May 18, 2021; 2. Affirmation in Opposition of Michael H. Sussman, Esq., dated June 16, 2021; with Exhibits 1-24 annexed; Affidavit of Salvatore Cascino, sworn to June 16, 2021; with Exhibits 1-10 annexed; Affidavit of David Wiener, sworn to June 16, 2021; Memorandum of Law, dated June 16, 2021; Counter-Statement of Material Facts; and 3. Memorandum of Law in Reply, dated June 24, 2021. AMENDED1 DECISION AND ORDER Plaintiffs Salvatore Cascino (“Cascino”), 13 Lackawanna Properties, LLC and Copake Valley Farms (collectively “plaintiffs”) commenced this action against The Kindlon Law Firm, PLLC (“Firm”) and Lee C. Kindlon (“Kindlon”), in his personal and professional capacity (collectively “defendants”), asserting claims for legal malpractice and breach of contract. The claims relate to representation of the plaintiffs by the defendants in relation to various actions regarding construction, demolition and other debris that the plaintiff Cascino brought to his property in Copake, New York from his company Bronx County Recycling, LLC and deposited at that property between 2003 and 2007 without a permit, as well as commencement of a potential civil rights claim related to those activities. The defendants move for summary judgment dismissing the complaint, as well as on their counterclaim for payment of legal fees that they assert are outstanding from such representation. The plaintiffs oppose the motion. BACKGROUND The legal matters relating to the deposit of the materials on the property without a permit have a long history. Plaintiff Cascino has been involved in litigation with the New York State Department of Environmental Conservation (“NYSDEC”), as well as the Town of Copake, for many years regarding these issues, as well as other issues regarding use of the property and certain structures on the property. The focus of the instant case alleging legal malpractice and breach of contract is three-fold. First, in July 2016, Cascino approached Lee Kindlon about representing him and bringing a malicious prosecution/civil rights violation lawsuit against the Town of Copake and the State of New York. In early August 2016, Lee Kindlon sent a proposed retainer agreement to Cascino which identified the scope of representation as “representation and handling of the research, drafting and filing of a lawsuit in either State or Federal Court concerning the abuse of process, malicious prosecution, denial of procedural and substantive due process claims regarding Salvatore Cascino, 13 Lackawanna Properties, LLC and Copake Valley Farm, LLC and the Town of Copake, Columbia County and the State of New York.” The proposed retainer agreement also set compensation for such representation at a rate of Ten Thousand Dollars ($10,000.00) per month. Cascino never signed the retainer agreement; however, he paid Kindlon Ten Thousand Dollars ($10,000.00) per month through March 2017. Second, Kindlon eventually became counsel of record representing Cascino in a contempt action in the Columbia County Supreme Court, which was pending before Judge Jonathan Nichols. Third, Kindlon assisted Cascino regarding an enforcement action brough by the New York State Department of Environmental Conservation in Columbia County Supreme Court before Judge Jonathan Nichols. Kindlon sent a letter to Cascino on August 29, 2016 indicating that his office would be able to take over representation of him in both matters pending in Columbia County Supreme Court. In that letter, he stated, “In order for us to substitute in as counsel on these matters, we must reconsider our original retainer agreement. Given the active litigation and the compressed time frame, I would ask for an additional $5,000 a month.” Cascino denies that this letter was received by him. No retainer agreement was ever signed by the parties. However, Kindlon commenced representation of Cascino in both matters, which both parties acknowledge. It is representation in these matters that also forms the basis for the claim of legal malpractice. The breach of contract claim is based upon Cascino’s contention that Kindlon never took the action he was supposed to regarding the filing of a civil lawsuit pursuant to the retainer agreement Kindlon sent to him. Kindlon concedes that he never filed the lawsuit and stated that representation of Cascino in the contempt action became the priority because Cascino was incarcerated for the contempt and Kindlon was attempting to get him out of jail. Many of the facts in this case are undisputed. However, the most significant factual dispute in this matter relates to the level of communication between Kindlon and Cascino. Kindlon contends that he and his associate, Martin Bonventre (“Bonventre”) were in consistent communication with Cascino, his son Peter and his employee, David Wiener regarding the efforts to get Cascino out of jail on the contempt and to deal with the NYSDEC enforcement action. The two cases in Supreme Court are related because they both deal with the deposit of unauthorized materials on the Copake property owned by Cascino. Multiple Orders to Show Cause were filed in the contempt matter in an attempt to secure Cascino’s release. The fundamental thrust of the actions taken by Kindlon revolved around attempting to work with the Town of Copake to resolve the litigation and secure Cascino’s release by obtaining the Town’s support that adequate measures had been taken to satisfy the Judge’s requirements, as well as simultaneously attempting to satisfy Judge Nichols that sufficient materials had been removed from the property that would have the effect of purging the contempt. All of these efforts were unsuccessful. Cascino does not generally dispute the factual recitation of the actions taken by Kindlon on his behalf, but instead is critical of the strategy which he claims he was not really part of planning nor were his son or employee. In addition, he claims that Kindlon largely ignored the strategies proposed by him, his son, his employee and some attorneys he knew who were discussing the case with Bonventre. With regard to the NYSDEC enforcement action, Judge Nichols granted the State’s motion for summary judgment regarding liability in a Decision and Order dated November 14, 2016;2 however, the motion was filed and the return date on the motion passed prior to Kindlon commencing his representation of Cascino in the Supreme Court matters. Previous counsel did not respond to the motion. Judge Nichols’ November 14, 2016 Decision and Order granted summary judgment but reserved on penalties and gave the defendants a period of time to submit mitigating evidence regarding the penalty to be imposed. Cascino claims that Kindlon never sent him the November 14, 2016 Decision and Order and never discussed mitigating evidence with him. Kindlon claims that he did speak to Cascino about the decision and the issues regarding the penalty. The Court imposed a penalty in the amount of One Hundred Thirty Thousand Five Hundred Dollars ($130,500.00), which Kindlon stated is the minimum the Court could have imposed, according to the position taken by the Attorney General’s Office in the NYSDEC action.3 In addition, Kindlon claims that under the circumstances of the case and the related matter involving the Town of Copake, there was no mitigating evidence that would have impacted the penalty imposed by the Court, and that the Court imposed the minimum penalty so no better outcome could have been reached in the NYSDEC matter. Kindlon also points out that in his deposition, Cascino stated, “I have no idea what evidence there was” when asked about the existence of mitigating evidence. Ultimately, Kindlon was discharged by Cascino as his attorney on May 15, 2017 and was replaced by attorney Greg D. Lubow, Esq. (“Lubow”). Additional efforts were undertaken by Lubow to secure Cascino’s release, similar to the efforts undertaken by Kindlon, however, Judge Nichols was never satisfied that the contempt was purged. Cascino was not released until January 2018 pursuant to an Order from the Appellate Division, Third Department. DISCUSSION Defendants contend that summary judgment should be granted regarding the claim of legal malpractice as well as the claim for breach of contract and that the complaint should be dismissed. In addition, defendants claim that they are entitled to summary judgment on their counterclaim for unpaid attorney’s fees. The moving party on a motion for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]). Evidence must be tendered in “admissible form” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). The failure to make such an affirmative showing requires denial of the motion, regardless of the sufficiency of any opposing papers (Winegrad, 64 N.Y.2d at 853; see also Torres v. Indus. Container, 305 A.D.2d 136, 136 [1st Dep't 2003] [holding that a party "cannot obtain summary judgment by pointing to gaps in [the opponent's] proof.”]). The court must view the alleged facts in the light most favorable to the non-moving party (Sosa v. 46th St. Dev. LLC, 101 A.D.3d 490, 492 [1st Dep't 2012]). Only if the moving party meets its initial burden will the burden shift to the opposing party, who must then produce sufficient admissible evidence to establish the existence of a triable issue of fact (Zuckerman, 49 N.Y.2d at 562). In doing so, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.” (id.). “To establish a prima facie case of legal malpractice, a plaintiff is required to show the existence of an attorney-client relationship at the time of the alleged malpractice, that the attorney was negligent, that the negligence was a proximate cause of the loss sustained and that the plaintiff suffered actual, ascertainable damages (citations omitted)” (Amodeo v. Gellert and Quartararo, P.C., 26 A.D. 3d 705, 707 [3d Dep't 2006]). In addition, the Court noted in Amodeo that “[t]o establish proximate cause, plaintiffs must ‘show that [they] would have been successful in the underlying action (citations omitted)” (Amodeo v. Gellert and Quartararo, P.C., 26 A.D. 3d 705, 707 [3d Dep't 2006]). Defendants contend that summary judgment is appropriate regarding each of plaintiffs’ causes of action because they can establish that plaintiffs are unable to prove at least one of the required elements. Turning first to the legal malpractice claim relating to Kindlon’s representation of Cascino in the NYSDEC enforcement action, the Court finds that defendants have met their burden of proof to establish the appropriateness of summary judgment and dismissal of that claim. It is unrefuted in the record that the initial failure to respond to the summary judgment motion was prior to Kindlon’s involvement in the case. It is also unrefuted that the penalties ultimately imposed by Judge Nichols, even in the absence of a response on behalf of Cascino, were the minimum that could be imposed. This fact was presented by Kindlon in his statement of material facts and admitted by Cascino in his response. It is worth noting that Cascino’s counsel attempted to argue in the memorandum of law submitted along with his response to the motion for summary judgment that is the subject of this Decision and Order that no such minimum exists, but he offered no support for that proposition. As a result, the Court accepts the agreed-upon statement that the penalties imposed were the minimum. In addition, Cascino admitted that he was not aware of any mitigating circumstances or information that could have been offered to the Judge in an attempt to reduce the penalties. On that point, the record is replete with information regarding the Court refusing to accept any of the remedial measures taken by the plaintiffs to try to purge the contempt and show the Town that the ongoing concerns had been remedied in the other Supreme Court action. Because these actions were interrelated, the same or similar proof would have to have been the basis for any mitigating evidence in the NYSDEC action, and as such, the record contains no information that such mitigating evidence existed. Because of this outcome, which was the best Cascino could have hoped for, the plaintiffs cannot establish proximate cause since they cannot demonstrate that they would have been successful in the underlying action but for the alleged negligence of the defendants. Therefore, the cause of action relating to legal malpractice in the context of the DEC enforcement action is dismissed. Plaintiffs also claim that Kindlon committed legal malpractice in the context of the contempt proceeding in Columbia County Supreme Court, and defendants have moved for summary judgment dismissing that claim as well. Defendants allege that they pursued a reasonable course of action in attempting to secure Cascino’s release from jail and a purging of the contempt. Defendants outline a three-pronged approach to dealing with the contempt. First, they attempted to obtain affidavits in support of the amount of material that had been removed from the site to try to establish to the Judge’s satisfaction that Cascino was in compliance and the contempt could be purged. Second, an environmental scientist was retained to test the materials in the fields on the property in an attempt to demonstrate to the Court that the “offending materials” had been removed. Third, upon the failures of these other two approaches, the decision was made, with Cascino’s input, as well as his son’s and David Wiener’s input, to “comb” the cornfield to remove any remaining debris. Following the “combing” of the field, an evidentiary hearing was scheduled where the defendants were going to present evidence to the Court to demonstrate all of the efforts that had been undertaken to remove the “offending materials” in order to purge the contempt and secure Cascino’s release from jail, and if that was denied, an appeal would be taken. Before the evidentiary hearing occurred, the defendants were discharged as Cascino’s counsel. Following the discharge of the defendants from the representation, attorney Lubow was counsel of record for Cascino in the contempt matter. It is undisputed that while Lubow was representing Cascino, during the summer of 2017, eight thousand yards of additional material was removed from the cornfield in a further attempt to satisfy the Town and purge the contempt. Hearings were held following the removal of this material and Judge Nichols still declined to purge the contempt. In an Order to Show Cause filed by Lubow and signed on November 17, 2017, a further attempt to secure Cascino’s release was made based upon the removal of the materials. Judge Nichols denied the application and that Decision and Order was appealed to the Appellate Division, Third Department. Cascino was released from jail by the Appellate Division. Defendants contend that the subsequent actions taken by successor counsel Lubow were similar in nature to the strategies they employed and were also unsuccessful. In addition, defendants note that the arguments made to the Appellate Division and ultimately adopted by the Appellate Division, namely that continued incarceration of Cascino would not be effective in ensuring compliance, was an argument made by Bonventre to Judge Nichols. Defendants further assert that all of these facts demonstrate that the plaintiffs cannot prove the element of negligence in their malpractice claim, nor can they prove proximate cause. Plaintiffs contend that because the appeal was ultimately successful in securing Cascino’s release, this demonstrates the defendants’ negligence because they followed the strategies they did and did not perfect an appeal that would have resulted in the release of Cascino sooner. The Court finds that the defendants have not met their prima facie burden on their motion for summary judgment as to the claim of legal malpractice in the context of the contempt proceeding for the reasons that follow. The differences in the level of discussion and communication between plaintiffs and defendants regarding the strategies employed in the context of the contempt matter that are presented by each side are significant. In addition, the differences presented in the record regarding the participation by the plaintiffs and representatives of the plaintiffs in the decision-making related to the actions they were taking to try to purge the contempt and get Cascino out of jail are also substantial. As a result of the contradictory recitations in the record on these points, and the Court’s inability to make credibility determinations when deciding a summary judgment motion, this Court is unable to determine what communication and discussion occurred and how the decision-making occurred. Thus, there is no established factual basis upon which to make a summary judgment determination. As such, the motion for summary judgment relating to the claims concerning allegations of legal malpractice in the context of the contempt proceeding is denied. Defendants also move for summary judgment dismissal of the legal malpractice claim concerning the potential civil rights claim that Cascino asked Kindlon to pursue on his behalf. It is undisputed that both parties understood that the initial basis for Cascino engaging Kindlon’s legal services was for Kindlon to pursue a civil rights case against the Town of Copake and the State of New York. It is also undisputed that while an initial review of that issue occurred, the nature of the representation quickly changed when Cascino was incarcerated for contempt and Kindlon got involved as counsel of record in the contempt and enforcement matters as described infra. The proof presented by the defendants establishes that the focus of the representation shifted at that point to working toward securing Cascino’s release from jail, purging the contempt and defending the enforcement action brough by NYSDEC. The record demonstrates that the defendants represented Cascino for a period of less than one year, and that the defendants were discharged from representing Cascino in a consent to change attorney signed by Cascino. In addition, it is undisputed that Cascino did not hire subsequent counsel to pursue a civil rights claim against the Town or the State. The Court finds that the defendants have met their prima facie burden to establish the appropriateness of summary judgment relating to the claim of legal malpractice concerning the failure to file the civil rights action. There is nothing in the record that would support the required elements of negligence and proximate cause in a legal malpractice case. As with the discussion noted above, plaintiffs cannot establish that they would have been successful in the underlying action since the only action that Cascino took in an effort to pursue such a claim was an early discussion with Kindlon when they discussed Kindlon assuming the representation of Cascino for that purpose. The record before the Court supports the contention that the focus of Kindlon’s representation of Cascino changed to make getting Cascino out of jail and purging the contempt the priority, not the filing of the civil rights lawsuit. Based upon the shift in focus, as well as the short time period in which the defendants represented Cascino, the defendants have established that there is nothing in this record that supports the element of negligence. In addition, there is no support in the record for the establishment of proximate cause since there is no evidence in the record that plaintiffs would have been successful in the underlying action. In fact, the record establishes that the plaintiff abandoned pursuing that case because he never retained another attorney to pursue it, nor did he pursue it on his own. As such, defendants’ motion for summary judgment relating to the claim of legal malpractice concerning the civil rights lawsuit is granted, and that claim is dismissed. Defendants have also moved for summary judgment dismissing the cause of action alleging breach of contract. Defendants contend that this claim should be dismissed because it alleges that defendants failed to provide the services that were required pursuant to a “contract,” namely, they failed to file the civil rights lawsuit, and this is duplicative of the legal malpractice claim. Defendants argue that in such circumstances, case law requires that the breach of contract claim be dismissed (see Cherry v. Decker, 280 A.D.2d 867 [3d Dep't 2001]). As noted above, this Court has dismissed the legal malpractice claim relating to the failure to file the civil rights lawsuit and, as such, the cause of action upon which defendants make their argument has been dismissed. Therefore, unlike the analysis in the underlying case law supporting the proposition that a duplicative cause of action exists when legal malpractice and breach of contract are alleged, the legal malpractice cause of action no longer exists, and the breach of contract cause of action is no longer duplicative of the remaining cause of action in the amended complaint. Defendants did not make any alternative arguments regarding summary judgment on the breach of contract claim. As a result, there is no basis for dismissing the breach of contract claim, and defendants’ motion is denied in that regard. Defendants further move for summary judgment on their counterclaim for unpaid legal fees. Defendants claim that they have established that Forty-Five Thousand Dollars ($45,000.00) is due under what they are calling the “modified retainer agreement.” The only fact clearly established by this record is that an attorney-client relationship existed between plaintiffs and defendants. However, the terms of that representation remain in question. The record shows that the defendants did perform legal services for plaintiffs as counsel of record in the contempt proceeding and with the actions, they took in the NYSDEC enforcement action. In addition, the record shows that Cascino paid the defendants Ten Thousand Dollars ($10,000.00) per month for a series of months. A formal consent to change attorney was also executed, which terminated the attorney-client relationship between the defendants and the plaintiffs. These facts clearly establish the existence of an attorney-client relationship between the parties. In addition, those facts are undisputed. In fact, Cascino admitted in his deposition that defendants represented him. The fact of the representation is also made clear in the legal malpractice claim, since there could be no basis for making a claim of legal malpractice if there was no representation in the first instance. However, despite the finding that there was an attorney-client relationship between the parties, the record does not establish the terms of that representation, whether there was an agreement between the parties, or the terms of that agreement, if it existed. As such, despite this Court’s determination that an attorney-client relationship existed between the parties, that is not sufficient to serve as a basis for finding summary judgment. The defendants have failed to establish their prima facie burden regarding the counterclaim. As such, that aspect of the motion is denied. The Court has considered all other arguments and found them to be without merit. Accordingly, it is hereby: ORDERED that the defendants’ motion for summary judgment is GRANTED with regard to the Second Cause of Action only to the extent that it relates to claims of legal malpractice concerning representation of plaintiffs by defendants in conjunction with the NYSDEC enforcement action as well as the potential civil rights lawsuit; and is DENIED as to the First Cause of Action as well as the Second Cause of Action only as it relates to the claim of legal malpractice concerning representation of plaintiffs by defendants in conjunction with the contempt proceeding; and it is also DENIED regarding the defendants’ counterclaim for legal fees; and it is further ORDERED, that a conference is scheduled for February 8, 2022 at 11:30 a.m. via Microsoft Teams. A separate invitation for the virtual conference will be emailed to the attorneys. This shall constitute the Decision and Order of the Court. SO ORDRED. Dated: February 14, 2022
