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Levine v. Grossman

October 15, 2009

BENJAMIN LEVINE, PLAINTIFF-APPELLANT,
v.
RICHARD GROSSMAN, ESQ. AND GROSSMAN & KRUTTSCHNITT, ESQS., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3832-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 23, 2009

Before Judges Lyons and J. N. Harris.

This is a legal malpractice action. Plaintiff Benjamin Levine (Levine) seeks remedies for putative wrongs that he asserts were committed against him by an attorney assigned to defend him by a medical malpractice insurer in the early 1990s. Defendants Richard Grossman (Grossman) and his law firm Grossman & Kruttschnitt, Esqs. (G&K) successfully moved for summary judgment dismissing Levine's claims on several grounds: 1) issue and claim preclusion, 2) the six-year statute of limitations, N.J.S.A. 2A:14-1, 3) the entire controversy doctrine, R. 4:30A, and 4) failure to comply with the affidavit of merit statute, N.J.S.A. 2A:53A-27. The motion judge also denied Levine's application for disqualification pursuant to R. 1:12-1(f) and -2. After judicious consideration of the record presented to us, we are fully in accord with the disposition in the Law Division. We affirm.

I.

A.

On August 10, 1990, the New Jersey State Board of Medical Examiners (Board) commenced proceedings against Levine that sought to either suspend or revoke his license to practice medicine and surgery. The Board's initial complaint alleged that Levine had engaged in acts of sexual contact upon ten female patients, once in 1978 and continuing from 1985 through May of 1990. A supplemental complaint was filed by the Board on September 7, 1990, which alleged eight additional counts of similar sexual contact upon female patients during the course of medical examination occurring from 1986 through July 24, 1990. Following a hearing before the Board on October 10, 1990, Levine's license was temporarily suspended.

On April 12, 1991, Princeton Insurance Company (Princeton), Levine's then-medical malpractice insurer, agreed to retain Grossman and G&K for the purpose of representing Levine at a plenary hearing before the Board. After months of interaction, on August 17, 1991, Levine and the Board resolved the licensure dispute. Upon Grossman's recommendation, Levine signed a Final Order that provided, among other things, for Levine to pay the Board $20,000 for its costs of investigation. The Final Order also contained a period of license suspension; a requirement that Levine undergo a mental health evaluation and therapy, if indicated; and outlined a procedure for the reinstatement of Levine's license.

Immediately above Levine's signature on the Final Order is the following statement:

I have read and understood the terms and conditions of the within Order and I agree to be bound by them. Consent to the entry of the Order by the Board is hereby given.

Notwithstanding the plain language of the Final Order and Levine's written acquiescence to it, Levine asserts that Grossman "coerced" him into agreeing to the arrangement and signing the Final Order.

Grossman and G&K's representation of Levine for the purposes of the Board's proceedings ended upon the entry of the Final Order, although they still continued to represent Levine - through the Princeton assignment - in other civil litigation. On August 26, 1992, Grossman wrote Levine:

Please be advised that I have completed my representation of you in connection with the Board of Medical Examiners pursuant to my instructions from the Princeton Insurance Company.

Although the record is somewhat murky, Levine asserts that he completed his period of suspension and subsequently returned to practice medicine in September 1992. He further argues that due to the license restrictions imposed by the Board, his income was severely limited and he was laboring under what he viewed as the punitive effects of the $20,000 repayment of investigation costs to the Board. Levine blames Grossman and G&K for this state of affairs due to Grossman's alleged neglectful and coercive conduct.

B.

On September 6, 1990, Levine was sued in the Law Division for alleged sexual contact during a physical examination. Two other similar civil actions were filed against Levine. Grossman and G&K were assigned by Princeton to defend Levine under a reservation of rights agreement.

On June 9, 1993, Princeton commenced a separate action against Levine seeking a declaratory judgment that it was not obliged to provide him a defense and indemnification because of the malpractice insurance policy's exclusion for criminal acts. This declaratory judgment action joined the plaintiffs who first sued Levine in September 1990. Princeton later commenced two more declaratory judgment actions against Levine and joined the other plaintiffs who had sued Levine for damages stemming from the alleged sexual contact. Grossman and G&K did not represent Princeton in any of the declaratory judgment actions.

C.

On November 6, 1991, Levine was indicted on a total of two counts of second degree sexual assault contrary to N.J.S.A. 2C:14-2(c) and twenty-two counts of fourth degree criminal sexual contact contrary to N.J.S.A. 2C:14-3(b). After a trial in May 1996, Levine was convicted of nine counts of fourth degree criminal sexual contact with female patients. Grossman and G&K did not represent Levine in the criminal proceedings.

The conviction was affirmed on direct appeal. The New Jersey Supreme Court denied Levine's petition for certification on June 27, 2000. Levine's motion for reconsideration of the petition for certification was denied on November 14, 2000. Levine was sentenced to a custodial term in the Middlesex County Correctional Center, which has been served.

D.

Once Levine's criminal travails were finalized, attention returned to Princeton's declaratory judgment actions. On February 5, 2001, Princeton prevailed on a consolidated motion for summary judgment whereby the court declared that the insurer had no obligation to defend or indemnify Levine in any of the three medical malpractice actions that Grossman and G&K were then defending under the reservation of rights agreement.

In April, 2001, Grossman and G&K were granted permission to be relieved as counsel in the three remaining medical malpractice actions that were pending against Levine.*fn1 Less than three months later, on July 17, 2001, while Levine was acting as attorney ...


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