CATUZZA, CHRISTOPHER v. RODRIGUEZ, ESQ., DAVID ( 2012 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    289
    CA 11-01929
    PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
    CHRISTOPHER CATUZZA, PLAINTIFF-RESPONDENT,
    V                             MEMORANDUM AND ORDER
    DAVID RODRIGUEZ, ESQ., NOEMI
    FERNANDEZ-HILTZ, ESQ., AND THE LAW
    OFFICES OF NOEMI FERNANDEZ, PLLC,
    DEFENDANTS-APPELLANTS.
    DAMON MOREY LLP, BUFFALO (KARA M. ADDELMAN OF COUNSEL), FOR
    DEFENDANT-APPELLANT DAVID RODRIGUEZ, ESQ.
    HURWITZ & FINE, P.C., BUFFALO (EARL K. CANTWELL OF COUNSEL), FOR
    DEFENDANTS-APPELLANTS NOEMI FERNANDEZ-HILTZ, ESQ., AND THE LAW OFFICES
    OF NOEMI FERNANDEZ, PLLC.
    KEVIN T. STOCKER, TONAWANDA, FOR PLAINTIFF-RESPONDENT.
    Appeals from an order of the Supreme Court, Erie County
    (Frederick J. Marshall, J.), entered April 4, 2011 in a legal
    malpractice action. The order denied the motions of defendants for
    summary judgment.
    It is hereby ORDERED that the order so appealed from is
    unanimously affirmed without costs.
    Memorandum: Plaintiff commenced this legal malpractice action
    seeking damages allegedly resulting from defendants’ negligence in
    their representation of him in an action against, inter alia, his
    former employer, the Erie County Water Authority (hereafter, ECWA
    action). The ECWA action was dismissed based upon plaintiff’s failure
    to comply with discovery demands. Supreme Court properly denied the
    motion of defendant David Rodriguez, Esq. and the motion of defendants
    Noemi Fernandez-Hiltz, Esq. and The Law Offices of Noemi Fernandez,
    PLLC seeking summary judgment dismissing the complaint. Defendants
    moved for such relief on the ground that plaintiff could not have
    prevailed in the ECWA action, inasmuch as he failed to exhaust his
    administrative remedies by appealing the determination of the Hearing
    Officer in the prior proceeding pursuant to Civil Service Law § 72.
    Defendants, however, failed to establish as a matter of law that the
    complaint in the ECWA action would have been dismissed on that ground
    (see generally Zuckerman v City of New York, 49 NY2d 557, 562).
    Failure to exhaust administrative remedies is a defense that may be
    waived if not timely raised (see Matter of Punis v Perales, 112 AD2d
    -2-                           289
    CA 11-01929
    236, 238), and the defendants in the ECWA action did not raise that
    defense in their answer. Further, inasmuch as “ ‘the grounds urged
    for relief’ and the remedies sought in [the ECWA action and the prior
    Civil Service Law § 72 proceeding] are separate and distinct,”
    plaintiff did not fail to exhaust his administrative remedies with
    respect to the conduct of the defendants in the ECWA action (Matter of
    Sokol v Granville Cent. School Dist. Bd. of Educ., 260 AD2d 692, 694).
    Entered:   March 16, 2012                      Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 11-01929

Filed Date: 3/16/2012

Precedential Status: Precedential

Modified Date: 10/8/2016