HECTOR SERULLE VS. DARIO, YACKER, SUAREZ & ALBERT, LLC (L-6805-14, BERGEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1899-16T3
HECTOR SERULLE,
Plaintiff-Appellant,
v.
DARIO, YACKER, SUAREZ & ALBERT, LLC,
RONALD DARIO, ESQ., and
BRIAN EYERMAN, ESQ.,
Defendants-Respondents.
______________________________________
Submitted July 31, 2018 – Decided August 6, 2018
Before Judges Mayer and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
6805-14.
Jae Lee Law, PC, attorneys for appellant
(Martin S. Cedzidlo, on the brief).
Hardin, Kundla, McKeon & Poletto, PA,
attorneys for respondent (James P. McBarron,
on the brief).
PER CURIAM
Plaintiff Hector Serulle appeals from a November 28, 2016
order, which denied reconsideration of a September 16, 2016 order
granting defendants Dario, Yacker, Suarez & Albert, LLC, Ronald
Dario, Esq., and Brian Eyerman, Esq., summary judgment dismissing
plaintiff's legal malpractice complaint. We affirm.
We take the following facts from the record. In October
2009, Serulle allegedly tripped and fell on a sidewalk abutting a
private home owned by Adrian Sosa in Cliffside Park. Serulle
filed a personal injury action against Sosa, wherein defendants
represented him. Serulle alleged he tripped on loose stone on top
of the sidewalk, which was the result of old concrete patchwork.
Serulle also alleged his fall was the result of a height
differential caused by a tree root beneath the sidewalk that pushed
a slab upwards.
Prior to the trial, defendants took Sosa's deposition. He
testified he owned the residence for ten years. He denied making
any repairs to the sidewalk or attempting to even the height
differential. As part of the pre-trial discovery, defendants also
attempted to pull permits evidencing repairs to the sidewalk, but
discovered none.
The matter was tried before a judge. Serulle offered
testimony, which was consistent with the allegations set forth in
his complaint. The trial judge found Sosa enjoyed immunity as a
homeowner for injuries occurring on a public sidewalk abutting his
property. The judge also found a lack of evidence "Sosa, actually
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did the repair, or [that] he, himself, made the property or the
sidewalk more dangerous than it was." The judge entered a directed
verdict in favor of Sosa.
Subsequently, Serulle filed a complaint in this legal
malpractice matter. The complaint alleged defendants "failed to
conduct a proper investigation and discovery, both prior to the
institution of litigation, and/or during the litigation, to
determine the construction, repairs, and remediation of the
hazardous condition of the sidewalk of the Sosa property." Serulle
also alleged defendants
failed to produce the adequate proofs and
evidence of the history of the construction,
repairs and remediation of the hazardous
condition of the property, due to their lack
of proper investigation and discovery [and]
also failed to adequately discuss or prepare
[him] for his appearance in court, or discuss
with him, the testimony which would be offered
to the court.
Serulle retained Vivian Goldblatt of Arch Forensics, LLC who
opined the repairs were improperly made to the sidewalk.
Specifically, Goldblatt's report and deposition testimony were
that the repairs to the sidewalk were made with Quikrete, which
was the wrong construction material to use, because it had broken
up into a jigsaw pattern and become a hazard.
Defendants filed a motion for summary judgment, which the
motion judge granted. The judge found in order to succeed in his
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legal malpractice claim, Serulle had to prove his underlying
negligence claim against Sosa. Specifically, the judge stated
"[Serulle] has to prove [Sosa,] or an identified predecessor in
title, made the improper repair . . . and prove that with effort
that could be made by any trial lawyer, that these defendants
should have been able to prove these facts in the underlying or
original action." The judge concluded Serulle's "present lawyers
ha[ve] not established these facts" and therefore, "[Serulle's]
present counsel [cannot] be heard to argue that [Serulle's] prior
counsel should have been able to do so[.]" This appeal followed.
Appellate courts "review the trial court's grant of summary
judgment de novo under the same standard as the trial court."
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016). The court considers all of
the evidence submitted "in the light most favorable to the non-
moving party," and determines if the moving party is entitled to
summary judgment as a matter of law. Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 523 (1995). The court may not weigh the
evidence and determine the truth of the matter; rather, the court's
role is to determine whether there is a genuine issue for trial.
Id. at 540. A party seeking summary judgment must show that there
is no genuine issue as to any material fact challenged, and that
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he or she is entitled to a judgment or order as a matter of law.
R. 4:46-2(c).
On appeal, Serulle argues defendants "failed to conduct basic
discovery until after the discovery end date, and only then
conducted a deposition of [Sosa]." Serulle asserts defendants
"produced no investigation or proofs as to the negligence of [Sosa]
due to [defendants'] lack of attention to the file." Serulle
argues Goldblatt's deposition testimony supported the inference
Sosa had negligently performed repairs on the sidewalk. Thus,
Serulle asserts there was enough of a dispute in fact to thwart
granting summary judgment to defendants.
A claim for "[l]egal malpractice is a variation on the tort
of negligence" relating to an attorney's representation of a
client. Garcia v. Kozlov, Seaton, Romanini & Brooks, PC, 179 N.J.
343, 357 (2004). To establish a prima facie case of legal
malpractice, a plaintiff must demonstrate: (1) the existence of
an attorney-client relationship creating a duty of care upon the
attorney to the plaintiff, (2) the breach of that duty by the
attorney, and (3) such breach was the proximate cause of the
damages sustained by the plaintiff. Jerista v. Murray, 185 N.J.
175, 190-91 (2005); Conklin v. Hannoch Weisman, PC, 145 N.J. 395,
416 (1996).
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With respect to the proximate cause element, "[t]he client
bears the burden of proving by a preponderance of competent
credible evidence that injuries were suffered as a proximate
consequence of the attorney's breach of duty." Sommers v.
McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996) (citing Lieberman
v. Emp'rs Ins. of Wausau, 84 N.J. 325, 342 (1980)). An attorney
who breaches his or her duty of care to a client is liable only
for the losses proximately caused by such a breach. 2175 Lemoine
Ave. v. Finco, Inc., 272 N.J. Super. 478, 487-88 (App. Div. 1994);
Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982). "To
establish the requisite causal connection between a defendant's
negligence and plaintiff's harm, plaintiff must present evidence
to support a finding that defendant's negligent conduct was a
'substantial factor' in bringing about plaintiff's injury, even
though there may be other concurrent causes of the harm." Froom
v. Perel, 377 N.J. Super. 298, 313 (App. Div. 2005) (quoting
Conklin, 145 N.J. at 419). The burden of proving a causal
relationship rests with the client and cannot be "satisfied by
mere conjecture, surmise or suspicion." Sommers, 287 N.J. Super.
at 10.
"The most common way to prove the harm inflicted by [legal]
malpractice is to proceed by way of a 'suit within a suit' in
which a plaintiff presents the evidence that would have been
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submitted at a trial had no malpractice occurred." Garcia, 179
N.J. at 358. "The 'suit within a suit' approach aims to clarify
what would have taken place but for the attorney's malpractice."
Ibid. (citing Gautam v. De Luca, 215 N.J. Super. 388, 397 (App.
Div. 1987)). "At such a trial, 'plaintiff has the burden of
proving by a preponderance of the evidence that (1) he would have
recovered a judgment in the action against the main defendant, (2)
the amount of that judgment, and (3) the degree of collectability
of such judgment.'" Ibid. (quoting Hoppe v. Ranzini, 158 N.J.
Super. 158, 165 (App. Div. 1978)).
Accordingly, Serulle must show he would have succeeded in his
negligence action against Sosa but for the defendants' negligent
handling of his case. To sustain a cause of action for negligence,
against Sosa, Serulle had to prove four core elements: (1) a duty
of care, (2) breach of that duty, (3) proximate cause, and (4)
actual damages. Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008).
The burden is on Serulle to establish these "elements by some
competent proof[.]" Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 406 (2014) (quoting Overby v. Union Laundry Co., 28 N.J.
Super. 100, 104 (App. Div. 1953)).
At the outset, we note Serulle does not argue the motion
judge misidentified the applicable law. Therefore, absent
Serulle's allegations of negligent repair, Sosa had no affirmative
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duty to maintain the sidewalk. Indeed, "[a]n abutting owner is
not liable for injuries suffered by a pedestrian on a defective
or dilapidated sidewalk even though it constitutes a nuisance,
unless the proofs show that that owner or his predecessor in title
participated in the creation or continuance of the nuisance."
Moskowitz v. Herman, 16 N.J. 223, 225 (1954). "The owner of
premises abutting a public sidewalk is not responsible for defects
therein caused by the action of the elements or by wear and tear
incident to public use, and not caused by his own wrongful act."
Ibid.
Instead, in an effort to prove the merits of the underlying
action, Serulle offered Goldblatt's expert report and deposition
testimony, which opined the improper repairs made were not old,
thereby implicating Sosa as the cause for the negligent repair.
Indeed, Goldblatt testified "[w]e did make a determination that
the rock, it didn't happen within a couple of weeks. It was most
likely at least a few months, because again, it wasn't a new
Quikrete patch work there." Based on this testimony, Serulle
argues
the active misconduct and negligence of . . .
Sosa was not merely in the construction of a
patch using substandard materials, but in
maintaining a condition that could be deemed
a nuisance, he was actively taking broken
pieces of concrete aggregate and periodically
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jigsawing loose pieces of concrete together
along his sidewalk.
We disagree. Neither the expert report nor the expert's
deposition testimony suggested Sosa participated in either the
construction or repair of the sidewalk. Goldblatt testified her
report did not attempt to determine the age of the repair work.
She also testified she did not make a determination of how long
the sidewalk was in the allegedly hazardous state. Moreover,
Goldblatt testified "we [Arch Forensics] . . . understand[] that
Mr. Sosa did not put that concrete patchwork in." Goldblatt
testified the age of the Quikrete repair could be a few months,
but also could be less than thirty years old. Sosa had only owned
the property for ten years. Therefore, Goldblatt's testimony did
not demonstrate the alleged repair was attributable to Sosa.
Thus, even if defendants failed to conduct an investigation
beyond Sosa's deposition, Goldblatt's inability to identify the
age of the original sidewalk, the age of the repair, and Sosa's
role in the making the alleged repair failed to prove the
underlying negligence case. The record lacks any other evidence
to demonstrate further investigation would have uncovered evidence
of Sosa's liability. Therefore, the duty, breach, and proximate
causation elements of the underlying negligence case were not
established. Without the ability to prove the "case within a
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case," Serulle lacked a cause of action for malpractice against
defendants, and summary judgment in their favor was appropriate.
Affirmed.
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