Rogers v. Ciprian

OPINION OF THE COURT Tom, J.P. At issue in this cause of action for breach of contract is whether defendant Nora Lee, an immigration consultant, can be held liable for damages attributed to the initial rejection of an application filed with the Immigration and Naturalization Service (INS) by an attorney Lee referred to plaintiffs corporation, the applicant on the immigration petition. Absent any authority to control the attorney’s work, there is no basis for recovery against the consultant. In any event, plaintiff lacks standing to maintain an action to recover for the loss sustained by his corporation. Flaintiff alleges that he sought to hire Sergei E Laptev, a Russian national, to serve, variously, as a translator, guide and doc [3] ument researcher for film production. To employ Laptev, plaintiff hired defendant Lee to obtain labor certification from the Department of Labor (DOL) and to obtain counsel to file the “visa petition for alien worker” with the Immigration and Naturalization Service (INS) (8 USC § 1153 [b] [3]). On October 29, 1999, Lee filed the application for alien employment certification with DOL. The prospective employer on the application was listed as “Beeland Interests, Inc., D/B/A Jim B. Rogers.” Beeland was a corporation wholly owned by plaintiff. On July 19, 2000, DOL approved Beeland’s application. Lee then retained defendant Muriel Ciprian, an attorney, on behalf of Beeland to file the visa petition with INS. The petition necessarily listed Beeland as Laptev’s prospective employer. Submitted with the petition was Beeland’s 1999 tax return. On July 21, 2001, INS requested additional documentation, specifically the 2000 corporate tax return and the 1999 and 2000 W-2 forms. Beeland responded by submitting its 2000 tax return. INS denied the visa petition on October 31, 2001, finding that the information submitted did not demonstrate that Beeland had the requisite financial capability to pay Laptev’s proposed salary. Plaintiff then retained new counsel, who appealed the INS determination, submitting unspecified additional evidence. On July 11, 2002, INS approved the visa petition submitted on Beeland’s behalf, finding that it had the necessary funds at the time of filing of the petition. Plaintiff commenced the instant action, asserting a legal malpractice claim against Ciprian and a breach of contract claim against Lee. The complaint asserts that Lee and Ciprian erroneously listed Beeland as Laptev’s employer, rather than plaintiff individually, on the applications submitted to DOL and INS. In the single cause of action asserted against Lee for breach of contract, the complaint alleges that “Lee failed to retain competent counsel for plaintiff and thereby failed to arrange for the submission of a proper petition to the INS.” Plaintiff, proceeding in his individual capacity, seeks damages for legal expenses incurred as a result of having to appeal the denial of the petition and for lost profits caused by the attendant delay. Supreme Court granted Lee’s motion for summary judgment (CPLR 3212), concluding that her preparation of the application for labor certification could not have been a “proximate cause” of plaintiff’s asserted damages, and that plaintiff’s claim for breach of the agreement due to the failure to retain competent counsel is baseless. [4] As an initial consideration, the only claim asserted against Lee sounds in contract; proximate causation is an element of tort liability that is inapposite to a contract claim. Furthermore, plaintiff’s contract with Lee, as consultant, and his retainer agreement with Ciprian, as counsel, are wholly distinct legal relationships. Finally, the action is predicated on a verbal agreement, the terms of which plaintiff is obligated to plead and prove (Paz v Singer Co., 151 AD2d 234, 235 [1989], citing Fisch, Evidence § 1098 [2d ed]). Plaintiff s theory of recovery is untenable. He denies directing Lee to list Beeland as Laptev’s employer; rather, he maintains, it was always his intention to function as employer in his individual capacity. The documentary evidence does not support this contention, however. Plaintiff signed the DOL application, which he is presumed to have read (see Mariani v Dyer, 193 AD2d 456 [1993], lv denied 82 NY2d 658 [1993]) and which recites, immediately above the signature line, “I take full responsibility for accuracy and any representations made by my agent.” Furthermore, the employment certification application is signed in plaintiff’s capacity as president of Beeland, not individually. Had plaintiff genuinely intended to be Laptev’s employer, he would not have permitted an application to be filed in the name of his corporation. In any event, plaintiffs breach of contract claim against Lee is meritless. His only assertion is that “Lee failed to retain competent counsel for plaintiff and failed to arrange for the submission of a proper Petition to the INS.” Thus, plaintiff seeks contract damages from Lee for breach of an asserted duty not simply to retain counsel, but to retain “competent” counsel. By implication, he seeks to hold Lee accountable for Ciprian’s failure to timely obtain alien certification for Laptev from INS. This claim suffers from a variety of deficiencies. First, Lee has no control over the actions of counsel that might serve as a basis for a claim of breach of performance. It is fundamental that an attorney may not share a practice with a nonlawyer (Code of Professional Responsibility DR 1-107 [a] [22 NYCRR 1200.5- c (a)]); more specifically, an attorney may not take direction from a layperson in the exercise of the attorney’s professional judgment (Code of Professional Responsibility DR 1-106 [b] [22 NYCRR 1200.5-b (b)]; DR 1-107 [a] [2] [22 NYCRR 1200.5- c (a) (2)]). Thus, there is no legal basis for a finding that Lee assumed any duty of performance owed by Ciprian to plaintiff; plaintiff could not reasonably have relied on Lee to [5] supervise or control Ciprian’s work. Finally, Lee could not have expected to be held responsible for the failure of Ciprian to produce a particular result, and the claim of contract liability therefore offends the rule of Hadley v Baxendale (9 Exch 341, 156 Eng Rep 145 [1854]). In sum, it is uncontroverted that Lee, as an immigration consultant, is unqualified to practice before INS. Therefore, Lee cannot be held liable for any deficiency in the documentation submitted with Beeland’s original visa petition before INS. Plaintiff has provided no authority for holding a layperson liable for professional malpractice committed by an attorney, whether the basis of the action is denominated as breach of contract or malpractice, and none has been located. Thus, there is no legal basis for plaintiffs case against Lee. Plaintiffs claim also suffers from a lack of factual support. As noted, the documentary evidence, particularly the application for labor certification before DOL signed by plaintiff as president of Beeland, establishes that it was submitted on behalf of the corporation. Additionally, at the time the application was submitted (October 29, 1999), the corporation’s 1999 tax return had not yet been prepared. Thus, Lee could not have known what the return would contain or what effect it might have on the visa petition for alien worker, ultimately filed by Ciprian over a year later. Most significant, however, is documentary evidence conclusively establishing that Laptev was hired by the corporation to serve a corporate purpose. The INS determination that ultimately granted the petition states: “the petitioner has provided evidence which establishes that it had the amount of $138,110 with which to pay the beneficiary’s wage during 1999. This is the amount of the consulting fees paid to outside contractors that the beneficiary will replace upon obtaining lawful permanent residence. Counsel has also established that the petitioner continues to have the ability to pay the proffered wage of $48,101. For the year 2000, the petitioner possessed the amount of $153,624 with which to pay the beneficiary. Again, this is the amount of the consulting fees paid to outside contractors that the beneficiary will replace upon obtaining lawful permanent residence. It is noted that the position description provided by the petitioner for the outside contrac [6] tors match [szc] the position description as stated on the Form ETA-750.” It is clear that Laptev was hired by the corporation to replace outside consultants, whose job description matches that of the beneficiary, Laptev, and whose compensation is the source of the funds to be used to pay Laptev’s salary. Furthermore, having represented that Laptev was to be employed by Beeland and having obtained a favorable determination from INS as a result, plaintiff should not be permitted to “play[ ] ‘fast and loose with the courts’ ” by assuming a contrary position in this action (Scarano v Central Ry. Co. of N.J., 203 F2d 510, 513 [1953]; see Inter-Power of N.Y. v Niagara Mohawk Power Corp., 208 AD2d 1073, 1075 [1994]). As a final consideration, plaintiffs standing to bring this action has not been established. Plaintiff cannot legally employ Laptev; only his corporation has been granted that right. Permitting him to recover compensation for the loss of the purported opportunity to employ Laptev would overlook the illegality inherent in that employment relationship (see McConnell v Commonwealth Pictures Corp., 7 NY2d 465, 471 [1960]). Moreover, Beeland was granted approval to employ Laptev, and whatever damages were occasioned by delay in his hiring were sustained by the corporation, not by plaintiff. A plaintiff may not bring an action in his individual capacity “to recover for wrongdoing done to a corporation” (Matter of Spear, Leeds & Kellogg v Bullseye Sec., 291 AD2d 255, 256 [2002], citing Uribe v Merchants Bank of N.Y., 239 AD2d 128 [1997], affd 91 NY2d 336, 341 [1998]). Accordingly, the order of the Supreme Court, New York County (Leland DeGrasse, J.), entered January 9, 2004, which, inter alia, granted defendant Nora Lee’s cross motion for summary judgment dismissing the complaint as against her, should be affirmed, without costs.