New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Be Ever So Careful Which Cases You Take

Posted in Legal Malpractice Cases

A person comes to the office.  He has had a car accident.  While at the office, the law firm decides that it will not take the case, but gives it to an attorney who might be an “of counsel”, or an employee who is going off on his own, or simply someone hanging around.  In any event new client pays $ 200 for the “of counsel’s” expenses, through the law firm’s credit card program, and signs a retainer agreement.  Somehow, against their wishes, the law firm’s name also appears on the retainer agreement.  Years of aggravation follow, along with a judgment of legal malpractice against the firm.

Tsang v Dong  2016 NY Slip Op 31575(U) August 18, 2016 Supreme Court, New York County  Docket Number: 150970/2016 Judge: Carol R. Edmead is a cautionary tale.  “Plaintiffs, managers of the Firm, allege that in July 2008, defendant contacted the Firm seeking an attorney to represent him in a personal injury matter. The Firm referred defendant to Michael Wiseberg (“Wiseberg”) and introduced defendant to Wiseberg on July 14, 2008 in the Firm’s oflice. Wiseberg and defendant signed a retainer agreement, and collected $200 from defendant for travel and parking expenses. Though the Firm did not practice personal injury law and did not consent to inclusion, Wiseberg added the Firm’s name to the retainer agreement. Wiseberg alone handled defendant’s matter. On two occasions, when defendant called the Firm to reach Wiscberg and was advised that the Firm was not involved in the matter, defendant came to the Firm and harassed and insulted plaintiffs. In particular, defendant stated, in front of the Firm’s clients, that the Firm was irresponsible, caused him to lose his case, and would not let him sec Wisebcrg; he also stated that he would not leave the office until he saw Wiseberg. As a result, the Firm’s clients were disturbed, which resulted in a loss of business of at least $87,000.00, as well as damage to the Firm’s reputation. ”

“Nevertheless, as defendant argues, plaintiffs’ defamation and trespass claims arc barred by resjudicata. Under New York’s transactional approach analyzing a defense based on res judicata, “[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357, 445 NYS2d 687, 429 NE2d 1158). And, as relevant herein, “res judicata bars not only those claims that were actually litigated previously, but also those which might have been raised in the former action” (Bernstein v State, 129 AD3d 135, 810 NYS3d 752 [3d Dept 2015] citing Moss v Medical Liab. Mut. Ins. Co., 224 AD2d 762, 763, 636 NYS2d 948 [ 1996] (finding that plaintiff attorney’s present claims against the State of New York, that he had a valid retaining lien on the subject funds, “stem from his previously adjudicated disbarment, for which a final judgment on the merits was rendered. As such claims could have been raised during plaintiff’s disbarment proceeding”)). Here, plaintiffs’ defamation and trespass claims stem from the same scope of legal representation that gave rise to defendant’s previous legal malpractice claim against plaintiffs. As such, plaintiffs could have raised the statements made and actions performed by defendant during the course of that same legal representation as a defense or counterclaim to the legal malpractice suit. Defamation is “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society” (Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 987 NYS2d 3 7; Foster v Churchill, 87 NY2d 744, 751, 642 NYS2d 583, 665 NE2d 153 [ 1996]). To prove a claim for defamation, a plaintiff must show: (I) a false statement that is (2) published to a third party (3) without privilege or authorization, and that ( 4) causes harm, unless the statement is one of the types of publications actionable regardless of harm (see Dillon v City of New York, 261 AD2d 34, 3 8, 704 NYS2d I [1st Dept 1999]). Defendant’s statements concerning the Firm’s mishandling of his matter also serve as a basis for defendant’s legal malpractice claim against plaintiff, meaning that the statements· falsity could have been litigated during the legal malpractice proceeding (see e.g. Af\·hari v Barer, I Misc3d 57, 769 NYS2d 687 [Sup Ct, App Term 2″d and l l 1h Jud Dist 2003] (former client, pro se, sued attorney to recover sum of money that attorney had allegedly retained as his fee while handing a real estate closing for said client, and attorney counterclaimed for libel based on defamatory letter sent to attorney and attorney’s former counsel); Williams v Varig Brazilian irlines, 169 AD2d 434, 564 NYS2d 328 (1st Dept 1991 )”

“Based on the foregoing, it is hereby ORDERED that the motion by defendant Yonghan Dong for summary judgment dismissing the complaint of the plaintiffs Bernice Tsang and Ivanka Wang as agents of Mertz, Bitelman & Associates Law Office, P.C., plus costs and disbursements. for payment of a money judgment issued against the Firm in favor of defendant in a separate matter. and an award on defendant’s counterclaims is granted to the extent that the complaint is severed and dismissed and to the extent that defendant’s counterclaim for $519.00 is severed and granted; “

So Often It’s Real Estate in Legal Malpractice Settings

Posted in Legal Malpractice Cases

Tai v Broche  2016 NY Slip Op 31586(U)  August 18, 2016  Supreme Court, New York County
Docket Number: 652769/2011  Judge: Joan M. Kenney is the story of some high-stakes Manhattan real estate, and the legal malpractice claims that accompany it.  The attorneys say that they warned their client not to close, but close it did.  Lots of money was lost in the transaction, so…

“These consolidated actions arise out of the purchase of the Premises by Property 215, a company owned by Tai, from the Estate. In a related action, Panasia Estate, Inc. (Panasia) obtained damages from Property 51, to which Property 215 assigned its contract, on a claim of tortious interference with Panasia’s prior contract to purchase the Premises from the Estate, and the contract for the sale of the Premises to Property 51 was held to be void ab initio. See Panasia Estate, Inc. v Broche, 122 AD3d 454 (1st Dept 2014). The Pour defendants represented the Tai plaintiffs in their purchase of the Premises. The Berko defendants were the broker in that transaction, and also in a subsequent unrelated transaction, in which Tai and third-party defendant NTD Building, LLC, as owner, sold a commercial condominium unit in the building located at 156-168 Bleeker Street in Manhattan. ”

“In motion sequence no. 003, the Pour defendants’ motion to dismiss Tai’s legal malpractice and breach of fiduciary duty claims is granted, and Tai’s cross motion for summary judgment is denied. Tai’s claims rest on her allegation that Pour failed timely to advise her of the Panasia action and the filing of the tis pendens. While Tai avers in her affidavit that Pour did not inform her of the action, or the tis pendens, until the day after the closing on the Premises, those statements are belied by Tai’s acknowledgment at her deposition that, as Pour states in his affidavit, he had multiple telephone conversations with Tai on the day of the closing, told her about both the Panasia action and the !is pend ens, and secured her agreement to enter into a joint defense to the Panasia action, with Broche. Moreover, Tai is collaterally estopped from denying that she knew about both the Panasia action and the lis pendens, prior to the closing on the Premises. S_ee Tai v Broche 115 AD3d 577, 579 (1st Dept 2014) (“[Tai’s] awareness of the pendency of [the ‘.anasia] action, the filing of a notice of pendency, and Panasia’s rejec~io~ o~ the Estat~’s atten~pt to term1~~te th~ Panasia contract defeats the justifiable reliance element of [plamt1ffs] fraud claim [aga~nst Broche ~ ). !at does not contest Pour’s avennent that he advised Tai not to proceed with the closing until the Panas ta action was resolved, but that she disregarded that advice, directed him to proceed with the c_losing, ~nd several days prior to the closing, retained litigation counsel to bring ~specific performance a~~ton agamst Broche. Finally, Tai’s allegation that Pour’s post-closmg request for an ad?1t10nal $20,000 payment constituted a “kickback,” or a “shakedown” is rejected, because Pour’s post-closmg request was based upon his additional services, including successfully persuading Broche that the Estate pay the entire mortgage recording tax, in the amount of $115,000, and negotiating, with Tai’s participation by telephone, a “Second Amendment” to the contract between Broche and Tai, that provided, among other terms, the extensive indemnification and hold harmless provision that Tai is now using to support her claims against Broche. Indeed, at the time, Tai agreed that Pour should receive additional compensation, but she persuaded Berko to contribute half of that additional payment, out of his fee, while paying nothing herself. “

A Bad Bulk Sale. Buyer Sues Seller’s Attorney. Case Dismissed

Posted in Legal Malpractice Cases

The headline is the story in a nutshell.  When a retail business is sold to a new owner, there will always be old sales taxes due to the State, even if only for the last quarter. A procedure exists so that the buyer can immunize itself from being responsible for the unpaid sales taxes of the seller, and if one adheres to the rule, there will be no problems.  Mission Cantina v Pan Asian Bistro Les, Inc.  2016 NY Slip Op 31570(U)  August 16, 2016  Supreme Court, New York County  Docket Number: 653581/2014 Judge: Debra A. James is an example.  One rule is that papers have to be filed prior to the sale of the business.  In this case, a bulk sales filing was made late, with a “backdated” type of filing.  Supreme Court does not seem to have picked up on this.  However, unless one can show malice, fraud or other unusual circumstances, one may not sue the opponent’s attorney.

“As to its complaint against Ahn, Buyer alleges that prior to the closing of the bulk sale transaction, which took place on July 8, 2013, Ahn, the attorney for the Seller, sent an e-mail message to defendant Elke E. Hofmann (“Hofmann”), the Buyer’s attorney, to which was attached a bulk sale notice that stated that the closing date was August 8, 2013. Buyer asserts that such date was a misstatement of the actual closing date, which took place a full month before such date. The complaint further alleges that after the closing, Ahn held $10,000 in her escrow account, which Ahn “finally paid on July 15, 2014” to the New York State Taxation and Finance Department (“Taxation Department”) toward the outstanding balance of sales taxes. Buyer also alleges that on October 3, 2013, eight months before remitting such payment, Ahn falsely advised Buyer’s counsel that the sale taxes for the restaurant that Seller, her client, collected prior to the bulk sale had been paid in full to the Tax Department and that Seller would provide a copy of the release that Seller received from the Taxation Department to Buyer. Such e-mail is attached to and incorporated by reference in the complaint.”

“The complaint does not contain any assertions as to the type of claim interposed against any of the defendants. The third cause of action, which is its only claim against Ahn, sounds in either legal malpractice, negligent representation and/or fraud against Ahn. As for any claims of legal malpractice or negligent representation, “[a]n attorney does not owe a duty of care to his adversary or one with whom he is not in privity” (Aglira v Julien & Schlesinger, PC, 214 AD2d 178, 183 [1st Dept 1995]). As in Aglira where the appellate court reversed the lower court’s denial of defendant law firm’s motion to dismiss the complaint of the underlying medical malpractice plaintiff against such attorneys who represented the medical doctors in that underlying action, here, there is no question that Ahn acted exclusively for her client, Seller, with respect to the bulk sale transaction, and therefore owed a duty of reasonable care only to Seller and owed no duty to Buyer, who was represented by attorney Hofmann. As to any fraud cause of action, as a matter of law, Buyer was not justified in relying upon the legal opinions or conclusions of his or her adversary counsel. Aglira, supra, at 185. Nor can Buyer claim to have consummated the bulk sale in justifiable reliance upon an e-mail message that Ahn sent months after the closing. Moreover, this court concurs with Ahn that the content of the e-mail from Ahn, which merely states that her client, Seller, advised Ahn both that the taxes were paid and that Seller received the release that Seller was trying to locate, disproves any alleged fraud or negligent representation on her part. ”

 

Accounting malpractice and Levels of Investigation

Posted in Legal Malpractice Cases

In the accounting malpractice world, defendants often try to distinguish between a “look-see” and a thorough audit.  The audit examines bank records, backup, bills, invoices, tax returns, etc.  Anything else is merely a “compilation” based upon provided records, and the usual disclaimer is that the client was unwilling to pay for the full audit.  Unwilling to pay, they get less.

Town of Kinderhook v Vona  2016 NY Slip Op 01232 [136 AD3d 1202]  February 18, 2016
Appellate Division, Third Department  is an example of this defense failing.

“Pegeen Mulligan-Moore served as plaintiff’s bookkeeper from 2002 until 2010. Douglas McGivney was plaintiff’s Supervisor during that period and, in 2008, learned that plaintiff was experiencing cash flow problems and that Mulligan-Moore had deposited a large personal check into plaintiff’s bank account. He accordingly contacted defendant Leonard W. Vona, a certified public accountant and certified fraud examiner, and asked Vona to look into the situation. No written agreement was reached as to the nature and extent of Vona’s services, but an accountant in his employ reviewed documents provided by plaintiff, and a December 2008 report found no cause for suspicion with regard to the check or any other payments made on plaintiff’s behalf by Mulligan-Moore from January 2007 to August 2008. Vona was compensated for having produced the report and subsequently did consulting work for plaintiff.

Mulligan-Moore was replaced after McGivney left office, after which it became clear that she had falsified the records provided to Vona and had embezzled over $400,000 from [*2]plaintiff from 2007 onward.[FN1] Plaintiff commenced this action in 2011, asserting that Vona and related entities breached the terms of their contract with plaintiff and were professionally negligent in failing to uncover the malfeasance of Mulligan-Moore. Vona and defendant Fraud Auditing, Inc. (hereinafter collectively referred to as defendants) served an answer and, following discovery, moved for summary judgment dismissing the complaint against them. Supreme Court denied the motion, and this appeal ensued.”

“Vona specifically testified that he was not engaged to perform an audit, as an audit of town finances was not within his practice area and plaintiff did not wish to expend the sums necessary for a thorough investigation. Vona was plainly engaged to do something, however, as he tasked a subordinate with examining records provided by plaintiff to determine if there were overt problems and he billed plaintiff for a “review of [plaintiff’s] checking account.” He ultimately issued a written report reflecting that he had been hired “to examine documents and records of [plaintiff] for the direct purpose of offering opinions regarding those documents,” finding that there was nothing suspicious in those documents, and making various recommendations as to improved procedures. Defendants submitted the affidavit of a certified public accountant who categorized this work as a limited assignment to make findings based on documents provided by plaintiff, and opined that defendants had no duty to obtain the original banking documents in this non-audit because they had no authority to do so. He further opined that the losses incurred by plaintiff stemmed from the absence of internal controls over finances rather than any failings on the part of defendants, although he notably failed to explain how defendants’ ”alleged failure to detect and report the [fraud] . . . was not a proximate cause of the damages allegedly sustained by plaintiff[ ]” (C.P. Ward, Inc. v Deloitte & Touche LLP, 74 AD3d 1828, 1830 [2010]; see Collins v Esserman & Pelter, 256 AD2d 754, 757 [1998]).

Even accepting that the foregoing made out a prima facie case for summary judgment, material questions of fact were raised by plaintiff with the affidavit of accounting professor Eric [*3]Lewis.[FN2] Lewis made the obvious point that it was impossible for an accountant to perform work for a client without being engaged in some manner, and stated that examining financial records to determine whether funds were being handled improperly was an “audit-level service.” He further opined that, regardless of whether defendants were hired to conduct an audit or a less intensive service, they deviated from professional standards by failing to conduct a thorough investigation or otherwise explaining to plaintiff that the original banking records were essential to performing one. The deceptions of Mulligan-Moore would have been discovered had defendants acted according to professional accounting standards and obtained the original, unaltered banking records, and Lewis opined that defendants’ departure from those standards allowed the embezzlement to continue. Accordingly, Supreme Court properly denied that part of the motion seeking summary judgment on the accounting malpractice claim (see C.P. Ward, Inc. v Deloitte & Touche LLP, 74 AD3d at 1830-1831; Cumis Ins. Socy. v Tooke, 293 AD2d at 798-799).”

Manhattan Real Estate Transactions Go Bad and Only the Notary Is Left

Posted in Legal Malpractice Cases

Ever since the founding of the Colony, Manhattan real estate has been a widely discussed and studied subject.  The sale of  549 Manhattan Avenue is no exception.  Was there fraud, duress, misconduct?

Jennings-Purnell v Donner  2016 NY Slip Op 31517(U)  August 10, 2016  Supreme Court, New York County  Docket Number: 110344/2006  Judge: Robert D. Kalish discusses what happens when the Appellate Division reverses, and what Plaintiff has against the notary.

“The underlying action arises from the closing for a sale of a property located at 549 Manhattan Avenue (the “Property”) that occurred on September 14, 2004. Plaintiff alleges that Adams is the principal of Adams & Associates, P.C. Plaintiff further alleges that the contract of sale for the Property she signed on September 14, 2004. violated a previous oral agreement between the former Defendant Jennings and herself. The Plaintiff alleges that Adams knew of said oral agreement and that the sale .was the result of fraud/misconduct/false representations by the former Defendants Jennings, Adams and Adams & Associates.”

” Notorial  misconduct can be for wilful, fraudulent or negligent actions of a notary. Further, New York Executive Law § 135 does not require a showing of detrimental reliance. ”Rather, a plaintiff seeking to recover under that section n~ed only show that the notary engaged in notarial misconduct and that such misconduct was a proximate cause of the plaintiffs injury” (Chicago Tit Ins. Co. v LaPierre, 104 AD3d ·720,720721 (NY App Div2d Dept 2013) citing Plemmenou v Aiminos, 12 AD3d 657 (NY App Div 2d Dept 2004); Wells Fargo Bank, N.A. v Sherwood, 82 AD3d 758 (NY App Div 2d Dept 2011); Maloney v Stone, 195 AD2d 1065 (NY App Div 4th Dept 1993 ); Amodei v New York State Chiropractic Ass’n, 160 AD2d 279 (NY App Div 1st Dept 1990) affd 77 NY2d 891(NY1991)).”

“Upon review of the submitted papers and having conducted oral argument of the motion and cross-motion,.the Court finds that the Defendant has established prima facie that he is entitled to summary judgment dismissing the Plaintiff’s action against him for notarial misconduct. Specifically, the Plaintiff has established prima facie that he fully performed his notarial duties at the September 14, 2004 closing by insuring the identities of the individuals signing the closil)g documents, witnessing said signatures and notarizing the signed documents accordingly. The Plaintiff does not allege that Adams in any way instructed Donner in the performance of his duties as notary at the September–14, 2004 . . Further, the Plaintiff does not allege that any of the signatures on’any of the closing documents were forged. ”

 

That All Important Notice to the Insurance Carrier

Posted in Legal Malpractice Cases

Whether the issue arises in an insurance coverage case for personal injury or in a legal malpractice coverage case, notice to the carrier is all important, and the failure to notify can gut coverage.  Cohen Bros. Realty Corp. v RLI Ins. Co.  2016 NY Slip Op 31493(U)  August 3, 2016 Supreme Court, New York County Docket Number: 652037/2011  Judge: Robert D. Kalish is an example that has implications for legal malpractice litigation.

“In the underlying aetion, the PlaintiffCohen Brothers Realty Corp. (“Cohen Brothers”) alleges in sum and substance that they are ·entitled to coverage under an insurance policy from the Defendant RLI Insurance Company (“RLI”). The Plaintiff alleges in sum and substance that it is the exclusive  ‘ managing agent for the property located at 622 Third Avenue, and that on October·3, 2008, David Vasquez was injured (and subsequently died) while working at said location. The Plaintiff alleges that at the time of the incident the Plaintiff had a general liability policy (the “Policy”) issued by RLI….”

“Where a policy of insurance requires that the insured give the insurer notice ‘as soon as practicable;’ notice must be afforded within a ‘reasonable time under the circumstances’. The notice requirement is a condition precedent to coverage and so, failure to provide such notice·vitiates the contract of insurance .”

“In Tesler v Paramount Ins Co (220 AD2d 334 (NY App Div 1st Dept 1995)), the First
Department held that an insured party demonstrated a good-faith reasonable belief in their nonliability, where said belief was based upon t.he specific incorrect advise of their insurance agent…”

 

 

Positioning the Legal Malpractice Case

Posted in Legal Malpractice Cases

Sometimes a legal malpractice case is brought and an answer is filed, and sometimes an attorney fee claim is made and a legal malpractice counterclaim is filed.  Litigants have varying feelings on whether playing defense puts them at a disadvantage.  Here in Bleakley Platt & Schmidt, LLP v Barbera  2016 NY Slip Op 00919 [136 AD3d 725]  February 10, 2016  Appellate Division, Second Department we see some of the behind the scenes jockeying for position.

“In January 2012, the plaintiff commenced this action seeking to recover unpaid legal fees, asserting causes of action to recover damages for breach of contract, unjust enrichment, in quantum meruit, on an account stated, and to enforce an attorney’s fee lien. Thereafter, the defendant commenced a separate action in the Supreme Court, Westchester County, under index No. 64986/12, against the plaintiff to recover damages for legal malpractice (hereinafter the legal malpractice action). Subsequent to the commencement of the legal malpractice action, in January 2013, the defendant served an answer in this action. As one of her affirmative defenses, the defendant asserted that the plaintiff’s claims were barred by acts of professional negligence.

In August 2014, the defendant moved, inter alia, to consolidate this action with the legal malpractice action. In an order dated October 6, 2014, the Supreme Court, inter alia, denied that branch of the defendant’s motion, without prejudice to renew the motion, due to the defendant’s record of delay with respect to discovery in this action and due to her prior violation of a discovery order. The court also noted that this action and the legal malpractice action were at completely different stages of discovery and that it had already directed that there be no further delay in this action.

By order to show cause dated October 23, 2014, the defendant then moved in this action for leave to amend her answer to add a proposed counterclaim which repeated the allegations and demand set forth in the legal malpractice action. The Supreme Court denied the defendant’s [*2]motion, and the defendant appeals.

“In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit” (Marcum, LLP v Silva, 117 AD3d 917, 917 [2014]; see CPLR 3025 [b]; Maldonado v Newport Gardens, Inc., 91 AD3d 731, 732 [2012]; Lucido v Mancuso, 49 AD3d 220, 222 [2008]). Since the claims asserted in the proposed counterclaim were duplicative of those set forth in the legal malpractice action, the Supreme Court providently exercised its discretion in denying the defendant’s motion for leave to amend her answer to assert a counterclaim alleging legal malpractice (see Feldman v Finkelstein & Partners, LLP, 76 AD3d 703, 704 [2010]). Leventhal, J.P., Austin, Roman, Miller and Barros, JJ., concur.”

Tolling the Statute of Limitations

Posted in Legal Malpractice Cases

For almost every professional endeavor, save medicine, the statute of limitations is 3 years.  For medicine because of “tort reform” intervention, it is 2.5 years.  But the mere length from the date of the mistake is only the first part of the calculation.  The statute of limitations is tolled while continuing representation goes on.

Bronstein v Omega Constr. Group, Inc.   2016 NY Slip Op 02951 [138 AD3d 906]  April 20, 2016  Appellate Division, Second Department is an example.  The Appellate Division found that “continuing communications between the parties” and “efforts by Cetera to remedy the alleged errors or deficiencies in the filed plans” tolled the statute.

“In 2006, the plaintiffs entered into a contract with the defendant architect, Michael T. Cetera, inter alia, to prepare and file plans for the construction of an extension to their residence. Cetera filed the plans, which were approved by the New York City Department of Buildings (hereinafter the DOB). Cetera subsequently advised the DOB in a letter dated May 28, 2008 that he was withdrawing responsibility for conducting controlled inspections for the project. Cetera allegedly had no further involvement with the project until the plaintiffs notified him in September 2010 that the DOB had audited the filed plans and had determined that certain errors had been made in the calculation of elevations and floor area. Cetera allegedly rendered additional services, including research and analysis of relevant zoning provisions, the performance of further calculations, and the proposal of possible solutions, in an effort to remedy the problems. There is no indication in the record that these alleged communications and corresponding efforts extended beyond November 2010. The plaintiffs subsequently commenced this action in connection with the project against various individuals and entities who had been involved in its construction. In August 2013, they moved for leave to amend their complaint to add Cetera as a defendant, alleging, inter alia, that he had committed professional negligence in the services he rendered under the parties’ contract. Following the granting of the motion for leave to amend, and the filing and service of the amended complaint, Cetera moved pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against him on the ground that it was time-barred under CPLR 214 (6). The Supreme Court denied the motion, finding that the parties’ submissions raised a question of fact regarding whether the applicable limitations period had been tolled pursuant to the doctrine of continuous representation.”

“Regardless of whether they are framed as claims sounding in contract or tort, [*2]allegations of professional malpractice, other than medical malpractice, are governed by a three-year statute of limitations (see CPLR 214 [6]; Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 542 [2004]; City School Dist. of City of Newburgh v Stubbins & Assoc., 85 NY2d 535, 538 [1995]; Town of Islip v H.T. Schneider Assoc., 73 AD3d 1029, 1029-1030 [2010]). Accrual of a claim to recover for professional malpractice occurs upon the completion of performance and the resulting termination of the professional relationship (see Vlahakis v Belcom Dev., LLC, 86 AD3d 567, 568 [2011]; Heritage Hills Socy., Ltd. v Heritage Dev. Group, Inc., 56 AD3d 426, 427 [2008]; Frank v Mazs Group, LLC, 30 AD3d 369, 370 [2006]). Where dismissal of a malpractice claim is sought pursuant to CPLR 3211 (a) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time within which to sue has expired, whereupon the burden shifts to the plaintiff to raise a question of fact as to whether the limitations period has been tolled or should not apply (see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 AD3d 901, 901-902 [2014]; Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674, 674 [2014]; Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978, 979 [2014]).”

“Contrary to Cetera’s contentions, in response to his prima facie showing that the action was commenced against him more than three years after his withdrawal, the plaintiffs succeeded in raising a question of fact as to whether the continuous representation doctrine is applicable so as to toll the running of the three-year statute of limitations. Under the circumstances, the evidence of continuing communications between the parties, and of efforts by Cetera to remedy the alleged errors or deficiencies in the filed plans, supported the denial of Cetera’s motion to dismiss the amended complaint insofar as asserted against him (see Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d 603, 607 [2013]; Pitta v William Leggio Architects, 259 AD2d 681 [1999]; Greater Johnstown City School Dist. v Cataldo & Waters, Architects, 159 AD2d 784, 786-787 [1990]).”

It’s said to be a “Modification” But …Wow!

Posted in Legal Malpractice Cases

Bison Capital Corp. v Hunton & Williams LLP  2016 NY Slip Op 31467(U)  July 28, 2016
Supreme Court, New York County  Docket Number: 153793/15  Judge: Saliann Scarpulla starts out as a $ 116 Million  legal malpractice case, brought by two uber law firms in the NY area, and ends as a breach of contract for the failure to use a specific attorney at trial. What damages might ensue from that breach remain to be seen.

“Hunton & Williams, a law firm, represented Bison in a litigation in which Bison brought suit against ATP Oil and Gas Corporation (“ATP”) for fees allegedly earned by Bison in procuring financing for ATP from Credit Suisse (the “Bison/ATP action”). The Bison/ ATP action was commenced in the United States District Court for the Southern District of New York. After a four day bench trial, United States District Judge Stanley H. Stein issued Findings of Fact & Conclusions of Law (“FFCL”) on or about March 8, 2011. In pertinent part, Judge Stein found that (1) the contract between ATP and Bison (“Agreement”) provided for Bison to be paid a fee based on “the value of the new funds made available to ATP in a Capital Transaction,” rather than “one percent of the entire face amount of each Capital Transaction,” as advocated by Bison; and (2) “Paragraph 7 of the Agreement only entitles Bison to fees if ATP ‘consummates or enters into an agreement or arrangement providing for a Capital Transaction’ prior to April 1, 2005.” FFCL at 10-11, 13 (quoting Agreement). In making the latter finding, Judge Stein discredited “[Bison’s President’s] in-court testimony that March 31, 2005 marks a cut-off for triggering Bison’s right to perpetual fees,” finding that it was at odds with the Bison’s President’s earlier interpretation of the Agreement, as expressed in an October 15, 2004 letter. Id. at 2, 12. The court found that “[Bison’s President’s] stated position in his October 15, 2004 letter reflects his understanding that in order to receive a fee for ‘financial arrangements’ (i.e., a Capital Transaction), these arrangements must be made ‘within the applicable time frame’ (i.e., prior to April 1, 2005).” Id.  Ultimately, Judge Stein awarded Bison $1.65 million, along with interest, and, on June 7, 2012, the Second Circuit affirmed the judgment. Following the affirmance, Bison allegedly terminated Hunton & Williams’ representation of Bison for cause, and retained separate counsel to pursue enforcement of the judgment. Bison alleges that through new counsel Bison requested an amended judgment and fees and costs. Bison further alleges that on August 15, 2012, the District Court issued an amended judgment, and, two days later, on August 17, 2012, ATP filed for bankruptcy. ”

“Bison’s allegations in support of the malpractice claim – that Hunton & Williams failed to call an expert witness, to introduce into evidence ATP’ s SEC reports, and to rebut attacks on the credibility of Bison’s President – are plainly disagreements with Hunton & Williams professional decisions related to trial strategy and are not actionable as a matter oflaw. See id.; Siracusa v Sager, 105 AD3d 937, 938-39 (2d Dept 2013); Brookwood Co., Inc. v Alston & Bird LLP, (Sup Ct, New York County, Sept. 17, 2015, Bransten, J., Index No. 653723/2014, at *9-11). 1 Further, Bison’s allegations fail to “meet the ‘case within a case’ requirement, that is, the allegations fail sufficiently to allege that ‘but for’ [Hunton & Williams’] conduct [Bison] would have prevailed in the underlying matter or would not have sustained any ascertainable damages.” Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 (1st Dept 2004); Rudolf, 8 NY3d at 442. Similarly, Hunton & Williams’ decision to wait to enforce the judgment against ATP during its appeal to the Second Circuit was a “reasonable course[] of action [which] does not constitute malpractice.” Rosner, 65 NY2d at 738. While'” [t]here is nothing inconsistent in a party’s accepting the benefit of a judgment .. . and appealing in an attempt to increase the award,”‘ id at 865 (citation omitted), when an appellate body has “authority … as broad as that of the Trial Judge” and can accordingly decrease a judgment, a party may not simultaneously accept the trial court’s judgment and appeal that award. Id at 866; see Williams v Hearburg, 245 AD2d 794, 794-95 (3d Dept 1997). Here, the Second Circuit, engaging in de novo review, could have found that ATP was entitled to a reduced judgment. See Rojfey, 217 AD2d at 866; Williams, 245 AD2d at 794-95; cf Cornell v TV Dev. Corp., 17 NY2d 69, 73 (1966). In addition, Bison has not alleged sufficient facts to show that Hunton & William’s alleged negligence in not immediately seeking to enforce the judgment proximately caused its injuries. See Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 is1 Dept 1999) (citation omitted) (“Contentions underlying a claim for legal malpractice which are ‘couched in terms of gross speculations on future events and point to the speculative nature of plaintiffs’ claim are insufficient as a matter oflaw to establish that defendants’ negligence, if any, was the proximate cause of plaintiffs’ injuries.”). While Bison conclusorily alleges that “[i]n March 2011, and through at least May 2012, ATP had more than enough resources to pay a District Court judgment against ATP of $112 million,” it also alleges that “[ o ]n August 17, 2012, while Bison was seeking to execute the August 15, 2012 judgment against an ATP bank account located in New York County, ATP filed a voluntary petition for Chapter 11 bankruptcy in the U.S. Bankruptcy Court in Houston, Texas” (complaint ilil 144, 161). Bison’s claims that it would have been able to collect on its judgment up until three months before ATP filed for bankruptcy protection “but for [Hunton & Williams’] negligence” in failing to immediately execute on the judgment, and assumption that ATP would not have filed for bankruptcy protection earlier if Bison had attempted to collect on the judgment earlier, is mere speculation, devoid of any evidentiary factual basis. Rudolf, 8 NY3d at 442.2 Bison’s breach of fiduciary duty, negligence and gross negligence, and negligent misrepresentation and fraud claims, all based upon Hunton & Williams’ failure to abide by general professional standards, must be dismissed, as they are all redundant of the legal malpractice claim.”

“Bison, nevertheless, has properly pled a breach of contract cause of action based
solely on its allegations that in the retainer agreement Hunton & Williams specifically
agreed that Marty Steinberg would conduct certain depositions and participate at trial but
he did not do so.”

 

Guessing at What A Court Might Do in Legal Malpractice

Posted in Legal Malpractice Cases

In all legal malpractice cases one compares the hypothetical better outcome to that of the actual.  Where there is a significant difference, it can be said that there is a proximately caused outcome.  That, however, is different from the “but for” causation which is unique to legal malpractice.  Here, one must show that there is no other cause, except for the attorney mistakes that led to the worse actual outcome.

So, litigants are often required to argue that if the attorney had taken a certain course of action, there would have been a better or more favorable outcome.  Heritage Partners, LLC v Stroock & Stroock & Lavan LLP   2015 NY Slip Op 08074 [133 AD3d 428]  November 5, 2015  Appellate Division, First Department is an example.  Plaintiffs were borrowers in a large condo development, were unable to meet their obligations, and went into a tail-spin.  Could a Chapter 11 filing have saved the day?  The Appellate Division thought there were too many assumptions necessary on how the Bankruptcy Court would rule to allow for a legal malpractice case.

“The court applied the correct standard and properly dismissed the complaint. Its unsupported factual allegations, speculation and conclusory statements failed to sufficiently show that but for defendant’s alleged failure to advise plaintiffs to pursue Chapter 11 bankruptcy upon their default on a $47 million loan, plaintiffs would not have lost approximately $80 million in equity in the underlying condominium project in Tribeca (Dweck Law Firm v Mann, 283 AD2d 292, 293 [1st Dept 2001]; see also David v Hack, 97 AD3d 437, 438 [1st Dept 2012]; O’Callaghan v Brunelle, 84 AD3d 581 [1st Dept 2011], lv denied 18 NY3d 804 [2012]).

Plaintiffs, who defaulted on the loan in May 2009, alleged damages of approximately $80 million in lost equity based on sales figures of units that sold after the lender assumed ownership of the underlying property in 2010. While plaintiffs argue that the amount was also based on an expert appraisal, no basis for the amount is apparent, other than later sales in 2010 and 2011, after the lender took over, and after the market had improved. Plaintiffs’ calculation also ignores that the Attorney General would not, as of December 2009, allow the sponsor, plaintiff 415 Greenwich LLC, to sell any units because it had failed to submit a plan that sufficiently stated how it would pay its arrears and other financial obligations in connection with the condominium units. Thus, plaintiffs’ speculative and conclusory allegations do not suffice to show actual ascertainable damages (Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]).

Among other things, plaintiffs speculate that the individual plaintiffs would agree to trigger the “bad boy” guarantees in the loan agreement, which would hold them personally liable for the debt if the borrowing company pursued the bankruptcy option. Plaintiffs further speculate that a bankruptcy court might agree to enjoin or stay any such proceeding to enforce those carveout guarantees. Plaintiffs also fail to allege facts sufficient to establish that they had funds to even initiate bankruptcy proceedings, and speculate that they would have obtained debtor-in-possession financing in a troubled economic climate. Plaintiffs argue that they would overcome these and other hurdles to obtaining Chapter 11 reorganization because their alleged $80 million “equity cushion” exceeded its roughly $63 million in total debt, but as noted above, this does not suffice. In light of the numerous obstacles to pursuing, let alone successfully achieving, Chapter 11 reorganization, plaintiffs’ allegations were “couched in terms of gross speculations on future events and point[ed] to the speculative [*2]nature of plaintiffs’ claim” “

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