Schauer v. Joyce

Appeal (1) from an order of the Supreme Court at Special Term, entered January 14, 1980 in Chenango County, which granted a motion by the third-party defendant to dismiss the third-party complaint, and (2) from the judgment entered thereon. Vivian Schauer (plaintiff in main action) retained the services of attorney Joyce (defendant third-party plaintiff) in November, 1975 for the prosecution of a matrimonial action. In December, 1975 attorney Joyce successfully obtained an order granting Schauer $200 per week temporary alimony and shortly thereafter obtained a default judgment of divorce. No moneys were collected under this decree. Subsequently, plaintiff’s former husband, who had been residing in Michigan during the divorce proceeding and thereafter, obtained an order in Supreme Court at Special Term pursuant to CPLR 5015 vacating that part of the decree awarding alimony and support, counsel fees and possession of the marital residence and its furnishings. The divorce was allowed to stand. Special Term then transferred all such alimony, support and counsel fee matters to the Family Court of Delaware County. Plaintiff thereafter retained attorney Gent to represent her in the matrimonial action in place of attorney Joyce. In January, 1978 the plaintiff commenced this action against Joyce for malpractice. Joyce then instituted the third-party action against Gent alleging he negligently acted in representing plaintiff as to the matrimonial action and seeking contribution as to damages which may be payable to plaintiff (see Dole v Dow Chem. Co., 30 NY2d 143). Special Term dismissed the third-party complaint for failure to state a cause of action after thoroughly considering the question of whether or not there was any way . whereby Gent could have caused damages otherwise payable by Joyce. We find no error in that dismissal. The independent action or inaction of the. third-party defendant-respondent Gent could not in any way aggravate the damages payable by Joyce to plaintiff or be an injury to plaintiff the same as that caused by Joyce. The extent to which plaintiff either personally or through her agent Gent failed to mitigate damages is a matter of defense. Indeed, Gent had no duty to the plaintiff or to Joyce at the time plaintiff’s cause of action accrued and the injury to plaintiff was then complete. The point is that Gent is not a person who may be liable for damages for the same wrong to the rights of the plaintiff as is Joyce. Unlike the situation in Taft v Shaffer Trucking (52 AD2d 255, app dsmd 42 NY2d 974), Gent has not in any way contributed to the plaintiff’s injury by his conduct related to the plaintiff’s divorce decree and its provisions for alimony and support as well as counsel fees. There is nothing alleged to show a duty on the part of Gent to have reinstated the vacated provisions of the divorce decree or to have secured the payment of alimony and support on a nunc pro tunc basis (cf. McMahon v Butler, 73 AD2d 197; North Colonie Cent. School Dist. v MacFarland Constr. Co., 60 AD2d 685). As found by Special Term, there is nothing upon which one could premise a responsibility of Gent for the injuries sustained by plaintiff either in whole or in part. This is not the type of action for the invocation of the doctrine enunciated in Dole v Dow Chem. Co. (supra). Order and judgment affirmed, with costs. Sweeney, J. P., Main and Herlihy, JJ., concur.

Mikoll and Casey, JJ., dissent and vote to reverse in separate memoranda.