<b>Counsel Concerns</b>Singer Toni Basil's Malpractice Suit Was Filed Too Late

Singer Toni Basil's legal malpractice suit against the attorney and firm who, she argued, did not adequately protect her rights to her 1980s pop standard “Mickey,” must be dismissed as time barred, a New York appellate court ruled.

A unanimous panel of the New York Appellate Division, First Department, reversed a decision by Manhattan Supreme Court Justice Paul Wooten that had let the case proceed. The appellate court determined in Basilotta v. Warshavsky, 115524-2009, http://1.usa.gov/zlgxfD, that the limitations period for her action had expired at least more than one year before she filed her claim.

Basil's 1982 song “Mickey” achieved pop culture fame, with its lyrics “Oh Mickey, you're so fine/You're so fine you blow my mind/Hey Mickey, hey Mickey.” Seeking compensation for an alleged unauthorized use of the song by the Subway sandwich chain, Basil ' whose real name is Antonia Christina Basilotta ' retained attorney Oren J. Warshavsky, then of New York City's Gibbons, Del Deo, Dolan, Griffinger & Vecchione. Warshavsky began two suits in 2004 and relayed a $35,000 settlement offer to Basilotta, which she rejected. Warshavsky left the firm in late 2006 and is now with Baker Hostetler.

In 2009, Basilotta discovered she had lost the rights to the master recording of “Mickey” with the dissolution of Radialchoice, a record company with which she had a recording contract. In February 2010, Basilotta, a California resident, filed her legal malpractice action in Manhattan Supreme Court arguing that her interests had not been protected by Warshavsky and the Gibbons firm, which reorganized as Gibbons P.C. in 2007. Due to the defendants' actions, Basilotta argued, she lost millions of dollars when she was not able to invoke her rights to “Mickey” and other recordings between 2005 and 2010. During that time period, there was a “lucrative resurgence of the eighties,” her complaint stated.

The Gibbons firm responded to the malpractice allegation by arguing that Basilotta had terminated the firm as counsel by December 2006, with Warshavsky informing her, prior to the “Mickey” dispute settlement negotiations, that he could not prosecute the two cases in good faith. But Basilotta claimed she never fired Gibbons and that the firm never told her it intended to withdraw.

The malpractice defendants argued the case was controlled by California law, where Basilotta was allegedly injured. They contended that the one-year statute of limitations for a legal malpractice action under California law had begun to run in 2006, making the 2010 New York action untimely. But Justice Wooten had let Basilotta move ahead with her action, ruling the statute of limitations began to accrue from the October 2009 discovery of Radialchoice's dissolution.

The New York Appellate Division disagreed. Applying California law, it held that the malpractice action accrued at the latest in November 2007. At that time, the appellate panel said that Basilotta received a letter “unequivocally informing her that [the defendants] were no longer representing her or prosecuting her underlying actions.”

“Contrary to the motion court's finding,” the appellate court observed, “plaintiff's assertion that it was not until October 2009 that she discovered that Radialchoice, the record company with whom she had held a recording contract, was involuntarily liquidated, did not raise an issue of fact as to whether this action is time-barred.” The panel noted that the discovery of the record company's dissolution was not mentioned in Basilotta's pleadings or affidavit, but was only cited in a memorandum of law in opposition to the defendants' dismissal motion.

The panel found that Basilotta also could have surmised “alleged nonfeasance” more than a year before filing the 2010 action. “Indeed, since January 2007, when plaintiff obtained her case files and observed that defendants had performed very little work on her underlying cases, she should have discovered, through the use of reasonable diligence, the facts supporting liability, including the fact that Radialchoice had been involuntary liquidated,” the panel wrote.

Frederick B. Warder III of Patterson, Belknap Webb & Tyler represented the defendants. F. Edie Mermelstein of the Law Office of F. Edie Mermelstein in Huntington Beach, CA, represented Basilotta.

Singer Toni Basil's legal malpractice suit against the attorney and firm who, she argued, did not adequately protect her rights to her 1980s pop standard “Mickey,” must be dismissed as time barred, a New York appellate court ruled.

A unanimous panel of the New York Appellate Division, First Department, reversed a decision by Manhattan Supreme Court Justice Paul Wooten that had let the case proceed. The appellate court determined in Basilotta v. Warshavsky, 115524-2009, http://1.usa.gov/zlgxfD, that the limitations period for her action had expired at least more than one year before she filed her claim.

Basil's 1982 song “Mickey” achieved pop culture fame, with its lyrics “Oh Mickey, you're so fine/You're so fine you blow my mind/Hey Mickey, hey Mickey.” Seeking compensation for an alleged unauthorized use of the song by the Subway sandwich chain, Basil ' whose real name is Antonia Christina Basilotta ' retained attorney Oren J. Warshavsky, then of New York City's Gibbons, Del Deo, Dolan, Griffinger & Vecchione. Warshavsky began two suits in 2004 and relayed a $35,000 settlement offer to Basilotta, which she rejected. Warshavsky left the firm in late 2006 and is now with Baker Hostetler.

In 2009, Basilotta discovered she had lost the rights to the master recording of “Mickey” with the dissolution of Radialchoice, a record company with which she had a recording contract. In February 2010, Basilotta, a California resident, filed her legal malpractice action in Manhattan Supreme Court arguing that her interests had not been protected by Warshavsky and the Gibbons firm, which reorganized as Gibbons P.C. in 2007. Due to the defendants' actions, Basilotta argued, she lost millions of dollars when she was not able to invoke her rights to “Mickey” and other recordings between 2005 and 2010. During that time period, there was a “lucrative resurgence of the eighties,” her complaint stated.

The Gibbons firm responded to the malpractice allegation by arguing that Basilotta had terminated the firm as counsel by December 2006, with Warshavsky informing her, prior to the “Mickey” dispute settlement negotiations, that he could not prosecute the two cases in good faith. But Basilotta claimed she never fired Gibbons and that the firm never told her it intended to withdraw.

The malpractice defendants argued the case was controlled by California law, where Basilotta was allegedly injured. They contended that the one-year statute of limitations for a legal malpractice action under California law had begun to run in 2006, making the 2010 New York action untimely. But Justice Wooten had let Basilotta move ahead with her action, ruling the statute of limitations began to accrue from the October 2009 discovery of Radialchoice's dissolution.

The New York Appellate Division disagreed. Applying California law, it held that the malpractice action accrued at the latest in November 2007. At that time, the appellate panel said that Basilotta received a letter “unequivocally informing her that [the defendants] were no longer representing her or prosecuting her underlying actions.”

“Contrary to the motion court's finding,” the appellate court observed, “plaintiff's assertion that it was not until October 2009 that she discovered that Radialchoice, the record company with whom she had held a recording contract, was involuntarily liquidated, did not raise an issue of fact as to whether this action is time-barred.” The panel noted that the discovery of the record company's dissolution was not mentioned in Basilotta's pleadings or affidavit, but was only cited in a memorandum of law in opposition to the defendants' dismissal motion.

The panel found that Basilotta also could have surmised “alleged nonfeasance” more than a year before filing the 2010 action. “Indeed, since January 2007, when plaintiff obtained her case files and observed that defendants had performed very little work on her underlying cases, she should have discovered, through the use of reasonable diligence, the facts supporting liability, including the fact that Radialchoice had been involuntary liquidated,” the panel wrote.

Frederick B. Warder III of Patterson, Belknap Webb & Tyler represented the defendants. F. Edie Mermelstein of the Law Office of F. Edie Mermelstein in Huntington Beach, CA, represented Basilotta.