The motion (seq. No. 1) by the attorney for the Third-Party Defendant County of Nassau (the County) for an order pursuant to CPLR 3212 granting Summary Judgment dismissing the Third-Party complaint and all cross-claims against the County of Nassau is granted. Cross-motion (seq. No. 2) by the attorneys for JEF for an order pursuant to CPLR §3212 granting Summary Judgment to the Defendant JEF and severing and dismissing the complaint and all cross-claims and counterclaims against said Defendant, on the ground that JEF is not individually liable for the torts or breach of contract, if any, of his co-Defendant F & F, P.C., of which Defendant JEF was at all relevant times president and sole shareholder is granted.
NS was born at Nassau County Medical Center on December 25, 1983. A medical malpractice action was commenced on her behalf against the County in 1984. JS, the mother of the Plaintiff who retained F & F, P.C. (F&F) to represent her daughter in the medical malpractice action died on April 1, 1992 during the pendency of the lawsuit. Letters of Administration were issued to JS’s daughter, MS, who was substituted as Plaintiff in the malpractice suit on behalf of the Estate of JS. The malpractice action was settled for $450,000 in 1993. Pursuant to the terms of the infant’s compromise orders (ICO) dated June 2, 1994 and modified January 31, 1995 the County was to issue a check payable to an officer of Defendant ML for the benefit of NS in the amount of $299,500.00 ($450,000.00 less attorney’s fees) and other disbursements. The funds ($299,500.00) were to be deposited by ML in investment accounts for the benefit of NS. Although the County timely issued the check in July 1994, sent it to F&F, who forwarded it to ML, the instrument was never cashed, and no account ever established. The original check was never negotiated or presented for payment. ML returned the original check to F&F with a request that an amended or modified ICO be obtained, to specify that the infant NS’s grandmother EMD (with whom the infant was living in Alabama) be identified as custodian of the infant’s account, and authorize ML to pay income taxes on behalf of the infant on the interest earned. F&F obtained a modified ICO in the malpractice action on January 31, 1995. An attorney working on an “of counsel” capacity for F&F on the malpractice action, forwarded a copy of the modified ICO to EMD, on February 5, 1999 and wrote to ML on February 6, 1999, enclosing the original and modified ICO’s and the check dated July 21, 1994 in the sum of $299,500. ML received the July 21, 1994 check in the sum of $299,500, but failed to open the infant account pursuant to the modified ICO or notify any of the parties that the check was missing.
Subsequent thereto, on or about February 26, 1996, ML engaged the services of the Locator Services Group, Ltd. (Locator) to recover the settlement check. Locator discovered that the original check was uncashed. Locator entered into an agreement with ML, dated February 6, 1996, to act on its behalf to recover the funds. In addition, ML granted Locator a Limited Power of Attorney. Locator then allegedly contacted F&F, P.C. to obtain information regarding NS and contracted with EMD the guardian of NS, to act on her behalf regarding the missing funds. Locator then allegedly contacted the County. After Locator and ML satisfied the County that the original check had not been cashed, the County issued a replacement check in the sum of $299,500.00 payable to ML for the benefit of NS. On June 24, 1996, Locator deposited $269,550 in a money market account, in trust for NS, after deducting a $29,950 service fee.