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Safier v. Walder

June 22, 2007

DR. GARY SAFIER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
WALDER, SONDAK & BROGAN, P.C., JUSTIN WALDER, ESQ. AND JOHN BROGAN, ESQ., DEFENDANTS, AND AMBROSIO, KYREAKAKIS & DI LORENZO, ESQS., DEFENDANTS-RESPONDENTS, AND ANTHONY P. AMBROSIO, ESQ., DEFENDANT-RESPONDENT/CROSS-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Morris County, L-1135-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2007

Before Judges Weissbard, Payne and Graves.

In these consolidated matters, plaintiff, Dr. Gary Safier, appeals from orders dismissing his legal malpractice complaint against defendants, Anthony P. Ambrosio and the law firm of Ambrosio, Kyreakis & DiLorenzo (jointly, Ambrosio),*fn1 and from a subsequent order holding plaintiff and his attorney, Edward G. O'Byrne, jointly liable for counsel fees, pursuant to R. 1:4-8 and N.J.S.A. 2A:15-59.1, in the amount of $37,950 incurred by defendant Anthony Ambrosio. O'Byrne, also, has appealed from the counsel fee award. Additionally, Anthony Ambrosio has cross-appealed from that order, seeking recovery of an additional $7,500 from Dr. Safier.

I.

We briefly outline the facts of the matter. Dr. Safier, an osteopathic family physician, was represented by Justin Walder and John Brogan (along with their firm, Walder, Sondak & Brogan, the "Walder defendants") in a criminal action charging Dr. Safier with accepting money in exchange for drugs prescribed for his patient Dan Stull.*fn2 Eventually, it was determined that Stull, a prescription drug addict, had stolen prescription pads from multiple physicians and forged their signatures in an effort to obtain drugs and had lied in portions of his testimony to the grand jury. These and other facts were brought to the attention of the prosecutor in a lengthy memorandum from the Walder defendants upon which Dr. Safier's daughter, Regan, a recently-admitted attorney, had also worked extensively.

Following receipt of the memo, the prosecutor recommended that Dr. Safier be admitted into the county's pre-trial intervention (PTI) program. Dr. Safier agreed to participate in that program upon the Walder defendants' recommendation, and he completed it successfully. The criminal charges against him were then dismissed.

As a result of a complaint to the New Jersey State Board of Medical Examiners, Dr. Safier's medical practice was supervised during the pendency of the criminal charges. However, in a consent order dated December 22, 2000, the conditions imposed by the Board upon Dr. Safier's license to practice medicine were lifted, and his unrestricted license was restored. The order additionally contained a reprimand to Dr. Safier for improperly monitoring Stull's Schedule II prescription drug consumption prior to his entry into a drug rehabilitation program, in violation of N.J.A.C. 13:35-7.2(a), and assessed civil penalties and costs. Dr. Safier continues to practice medicine, with a full license to do so.

The Walder defendants charged $356,000 for their services from November 1997 to May 2000, of which Dr. Safier paid $139,000, ceasing his payments upon entry into PTI. Dr. Safier contested the fees, but was unable to obtain fee arbitration pursuant to R. 1:20A-3 because the amount in dispute exceeded $100,000. The Walder firm sued, and Regan filed an answer on her father's behalf, and she asserted a counterclaim alleging billing fraud by the Walder firm, unjust enrichment and breach of contract.

After Regan surrendered the defense of Dr. Safier at her firm's demand, in May 2001, Dr. Safier contacted attorney Anthony Ambrosio. An initial retainer agreement, drafted by Ambrosio, provided that Ambrosio would represent Dr. Safier in the defense of the fee action and in the prosecution of a legal malpractice action against the Walder defendants for failing to file malicious prosecution and defamation complaints against Stull and Thomas Fruzynski, M.D., the person who instituted the medical ethics complaint against Dr. Safier, or properly advising him of the statutes of limitations applicable to such actions. The retainer was not signed because it contained a contingency fee clause applicable to the fee dispute to which Dr. Safier objected. Instead, Dr. Safier signed a more restricted agreement for representation "in the matter of: Fee Arbitration between" Dr. Safier and the Walder defendants. Safier provided a $6,000 retainer.

Binding arbitration was arranged. However, discovery served by the Walder defendants was not answered, and the expert proposed by Ambrosio, Paul Jackson, was not retained. Ambrosio took the position that it was Dr. Safier's responsibility to provide initial answers to interrogatories and to retain the expert.*fn3 In October 2001, the complete file in the matter was delivered to Jackson. However, Jackson refused to provide a report, stating there was insufficient time prior to the arbitration and that his retainer had not been paid in full, Dr. Safier having remitted only $1,500 of the $6,000 required.

After Ambrosio, allegedly without Dr. Safier's knowledge or consent, informed the arbitrator that Dr. Safier did not intend to cooperate with the arbitration, a default award was entered in favor of the Walder defendants in the amount of $235,188 plus interest of $69,917, for a total of $305,105. In January 2002, the Walder defendants moved to have the arbitration award confirmed, and an order was entered on January 25, 2002.

Around the time that the order confirming the arbitration award was entered, Dr. Safier retained Edward O'Byrne, who filed a legal malpractice complaint in the present matter against the Walder and Ambrosio defendants. In counts one through three of the complaint, Dr. Safier claimed legal malpractice on the part of the Walder defendants as the result of their advice to him to enter PTI, thereby precluding suit for malicious prosecution against Stull, their failure to institute a malicious prosecution action or advise him of the statute of limitations applicable to an action against Dr. Fruzynski, and their unethical billing practices. In count four, Dr. Safier claimed legal malpractice on the part of the Ambrosio defendants in failing to prosecute his legal malpractice claims against the Walder defendants as set forth in the first three counts, in failing to conduct discovery on plaintiff's behalf in the fee dispute case, failing to obtain additional time to answer discovery, failing to retain an expert to ...


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