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Cynthia Millar v. Darren J. Del Sardo

April 27, 2012

CYNTHIA MILLAR, PLAINTIFF-APPELLANT,
v.
DARREN J. DEL SARDO, ESQ., AND DAMICO, DEL SARDO & MONTANARI, LLC, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1553-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2012 -

Before Judges Parrillo, Grall and Hoffman.

This is an appeal from a grant of summary judgment to the defendants in a legal malpractice case. We affirm.

Plaintiff Cynthia Millar retained defendant Darren J. Del Sardo and his firm*fn1 to file an action against her former employer Cablevision Systems Corp. Cablevision terminated her employment when she was unable to return to work and had exhausted all of her leave. She retained defendant just under two years after her termination.

Defendant filed a complaint against Cablevision on plaintiff's behalf asserting various claims relating to sexual harassment. Cablevision and plaintiff eventually settled that case, but prior to that settlement plaintiff retained new counsel and filed a compliant charging defendant with legal malpractice based on his failure to take additional action on her behalf. Pertinent here, she alleged that defendant failed to pursue a claim for workers' compensation and should have included counts in her complaint against Cablevision alleging wrongful, retaliatory termination and failure to accommodate her disability.

On defendant's motion, the court granted summary judgment on all allegations other than defendant's omission of a claim that Cablevision discharged plaintiff in retaliation for seeking workers' compensation benefits. On cross-motions for reconsideration, the judge dismissed that claim as well. The court determined that plaintiff could not establish professional error because the workers' compensation claim and the claim for failure to accommodate were time-barred before plaintiff retained defendant. Further, as to the remaining claims allegedly omitted, the court found plaintiff could not establish damages, as she was already disabled at the time of her termination. For those reasons, we agree that defendant was entitled to judgment as a matter of law.

I.

Plaintiff, who is now fifty years old, began working for Cablevision in 1997 as an account executive. In that capacity, plaintiff marketed and sold air time for television commercials.

In February 1999, plaintiff was diagnosed with Epstein-Barr virus, a condition characterized by symptoms such as fatigue, fever, weakness, swollen lymph nodes, pain in the joints and muscles, and throat soreness. In the same year, plaintiff was also diagnosed with Chronic Fatigue Syndrome and fibromyalgia. As a result of her diagnoses, plaintiff missed considerable time from work. Cablevision approved her request for medical leave from April 20, 2001 through July 12, 2001. Immediately following this leave, plaintiff began a subsequent leave under Cablevision's Non-Family/Medical Leave policy that extended her leave time through October 4, 2001.

Plaintiff began treatment for symptoms of stress and depression with Dr. Cheryl Kleefeld, a psychologist, on April 14, 2001. Plaintiff had been referred to her by plaintiff's physician, Dr. Marco Tartaglia, for symptoms of fatigue, malaise, and depression. Dr. Kleefeld initially diagnosed plaintiff with mood disorder due to Chronic Fatigue Syndrome, with depressive features; fibromyalgia; and "[o]verwork, stressors from work situation." In addition, Dr. Kleefeld noted, "[u]nfortunately, there have been ongoing stressors from work even when she is not there . . . . Ongoing stressors appear to have interfered with proper rest and treatment."

After her return to work in October 2001, plaintiff was subjected to inappropriate and sexually harassing behavior by one of her superiors. In July 2002, one of plaintiff's co-employees contacted the Human Resources Department at Cablevision and reported that plaintiff had been the subject of workplace harassment. Following this report, plaintiff claimed she was retaliated against, and that Cablevision was no longer willing to accommodate her physical ailments. For the balance of 2002 and into 2003, plaintiff had continuing health issues, requiring additional leaves of absence.

Even after plaintiff's extended absences, she continued to suffer from medical problems. The last leave of absence Cablevision granted plaintiff was from February 19, 2003 to April 16, 2003. Once this leave began, Dr. Kleefeld noted in a report: "As a psychologist and stress/pain/illness management specialist, I attributed much of her relapse to the stress she was experiencing at work." Plaintiff returned to work on April 17, 2003. Shortly after she returned, plaintiff missed an additional two weeks of work due to more health issues and the death of her father.

On May 23, 2003, plaintiff claims she slipped on a wet floor in a bathroom at work and suffered an injury to her leg. In addition, she complained of chest pains and stated that she was having a "nervous breakdown." As a result, plaintiff was taken by ambulance to the emergency room. Plaintiff never returned to work after this date.

By letter dated May 30, 2003, Cablevision informed plaintiff that all her available leave time had been fully expended, and requested additional medical information from her. Dr. Tartaglia responded by letter to Cablevision's request, indicating that plaintiff required further leave due to a "relapse of previous [Epstein-Barr virus] symptoms following the remission of fatigue symptoms."

On June 10, 2003, plaintiff completed an application for state-administered temporary disability benefits. Under the application heading, "Describe your disability (How, when, where it happened)," plaintiff wrote: "Working overtime, 4/17/03 - 5/23/03 . . . returned to work with medical restrictions - company did not respect them[,] sent to hospital in ambulance from work on 5/23/03." Significantly, plaintiff indicated that her claimed disability was caused by her job. Dr. Tartaglia, who completed a portion of the application, also indicated that plaintiff's disability was "[d]ue to a condition which developed because of the nature of [her] work."

In a report dated June 11, 2003 directed to Cablevision's independent medical examiner, Dr. Kleefeld stated:

[B]y Ms. Millar's account, the work environment has become even more punitive and threatening. She has been under more stress at work than ever before . . . .

It would be impossible for anybody to recover from illness in the present work environment as Ms. Millar is experiencing it. Ms. Millar has developed even deepening symptoms, including the following new symptoms: heart ...


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