Court Dismisses Legal Malpractice Suit For Failure To Assert Unjust Enrichment Claim In Earlier Undue Influence Case

Vicinio v. Carluccio, Leone, Dimon, Doyle & Sacks, LLC is a legal malpractice action stemming from an underlying family dispute involving the Estate of Philomena Vicinio.

Philomena Vicinio’s health began to deteriorate after her husband’s death. Thereafter, Mrs. Vicinio attempted to reside with her daughter, Roseann, on several occasions, with each attempt short-lived because of their strained relationship. Mrs. Vicinio eventually began residing with her son, Peter, in 2002. Peter purchased a home for his family and his mother, and began to oversee, maintain, renovate and lease his mother’s Kenilworth property. During this time, the relationship between Mrs. Vicinio and Roseann continued to deteriorate.

In April 2003, Mrs. Vicinio executed a Last Will and Testament, in which she bequeathed her estate to Peter and Roseann equally. A month later, Mrs. Vicinio transferred all of her liquid assets to Peter. A month after the liquid assets were transferred, Mrs. Vicinio transferred her Kenilworth property to Peter, using a different attorney than the one who prepared her will.

In June 2004, Roseann filed litigation seeking visitation with Mrs. Vicinio, alleging that Peter was interfering with that visitation. A visitation order was entered later that month. Mrs. Vicinio died in 2007.

After their mother’s death, Roseann filed suit challenging the 2003 will and alleging breach of fiduciary duty, negligent misrepresentation, fraud and unjust enrichment against Peter. She sought to remove Peter as executor of the estate, and sought to void the inter vivos real and personal property transfers.

Peter was represented in the action by Carluccio, Leone, Dimon, Doyle & Sacks, LLC (“Carluccio”). Following a trial, the Court found that Peter had exerted undue influence over Mrs. Vicinio. He was ordered to return the real and personal property back to the estate.

The decision was affirmed on appeal. In that decision, the Appellate Division had rejected Peter’s claim based on unjust enrichment, concluding that Peter had failed to prove that he “expected remuneration for his labor and mileage at the time he performed the services” at the Kenilworth property.

In 2010, Peter filed a legal malpractice claim against Carluccio, claiming, inter alia, that Carluccio should have known that Peter had a claim for unjust enrichment based on the services Peter performed at his mother’s Kenilworth property. An expert opined on behalf of Peter that Carluccio’s failure to assert a quantum meruit claim was a deviation from the requisite standard of care.

Carluccio filed a motion for summary judgment, which was granted. Peter’s request for reconsideration was denied, and Peter appealed.

After agreeing with the trial court that Peter’s expert report was an inadmissible “net opinion,” the Appellate Division considered Peter’s claim that Carluccio negligently failed to assert a quantum meruit claim. The trial court had relied in part on the previous appellate court decision, which had held that Peter had failed to prove that he expected remuneration for the services he performed on Mrs. Vicinio’s Kenilworth property. There was insufficient evidence to establish that a failure to raise the quantum meruit claim was the proximate cause of damages. Instead, Peter undertook those services voluntarily, with no reasonable expectation of repayment. Moreover, Peter failed to submit proofs as to what benefit Roseann gained, or what loss he sustained, relating to the claim.

Consequently, the Appellate Division affirmed the summary judgment dismissal of Peter’s legal malpractice claims, concluding that,

Because [Peter] could not have recovered under a theory of quantum meruit, he cannot demonstrate that he suffered damages or that Carluccio’s alleged malpractice was a “substantial factor” contributing to any alleged damage.

 Read more: http://vanarellilaw.com/court-dismisses-legal-malpractice-suit-based-on-failure-to-assert-unjust-enrichment-claim-in-undue-influence-case/


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