New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

One Legal Malpractice Case…Three Lessons in Legal Malpractice

Posted in Legal Malpractice Cases

Alphas v Smith 2017 NY Slip Op 01277  Decided on February 16, 2017 Appellate Division, First Department packs a semester’s worth of lecture into one short case.

Lesson 1:  Privity in a Small Corporate Setting.  “In opposition to defendants’ motion, plaintiff’s counsel submitted an affirmation citing Good Old Days Tavern v Zwirn (259 AD2d 300 [1st Dept 1999]) and averring that plaintiff was the president and sole shareholder of the Alphas Company of New York, Inc. (Alphas NY) and that running that corporation was the business from which plaintiff derived his livelihood. Thus, contrary to defendants’ contention, plaintiff is not claiming for the first time on appeal to have derived his livelihood from Alphas NY. In light of the similarity between this case and Good Old Days, and in light of the procedural posture of this case (a CPLR 3211 motion to dismiss), plaintiff should be allowed to assert an individual malpractice claim, even though defendants represented only Alphas NY in the federal action in which they allegedly committed malpractice. However, plaintiff’s damages are limited to those he suffered individually (e.g., the loss of $1.4 million in unsecured loans that he made to Alphas NY, the losses he incurred as a result of guaranteeing the company’s debt, lost income, loss of his Perishable Agricultural Commodities Act license, a lower personal credit score, legal fees for his personal liabilities, and the cancellation of an agreement for 30% of his interest in Alphas NY), as opposed to damages suffered by Alphas NY (e.g., the $1.2 million judgment entered against it in the federal action, its bankruptcy, the liquidation of its cooperative shares in the Hunts Point Terminal Produce Cooperative Association, and the legal fees incurred by it) (see generally Griffith v Medical Quadrangle, 5 AD3d 151, 152 [1st Dept 2004]).”

Lesson 2: Breach of Contract: “While the motion court did not discuss whether the second cause of action (breach of contract and fiduciary duties) was duplicative of the first (malpractice), defendants did make this argument below, as well as on appeal. Defendants are correct.

“Unless a plaintiff alleges that an attorney defendant breached a promise to achieve a specific result, a claim for breach of contract is insufficient and duplicative of the malpractice claim” (Mamoon v Dot Net Inc., 135 AD3d 656, 658 [1st Dept 2016] [internal citations and quotation marks omitted]). As in Mamoon, “[p]laintiff does not allege that . . . defendants breached a promise to achieve a specific result” (id.).”

Lesson 3: Breach of Fiduciary Duty: “Plaintiff argued below that the fiduciary duty claim was not “predicated on the same allegations” as the malpractice claim (Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 290 AD2d 399, 400 [1st Dept 2002]) because the former alleged that defendants acted willfully and intentionally due to a conflict of interest, whereas the latter merely alleged that they were negligent. However, we have found that a breach of fiduciary duty claim was “properly dismissed” as “redundant of the legal malpractice cause of action” (Waggoner v Caruso, 68 AD3d 1, 6 [1st Dept 2009], affd 14 NY3d 874 [2010]), even though the fiduciary duty claim was [*2]based on the defendants’ conflict of interest (id.).

Plaintiff also contended below that the relief sought in the fiduciary duty claim was not “identical to that sought in the malpractice cause of action” (Nevelson, 290 AD2d at 400). However, we have dismissed a fiduciary duty claim as duplicative of a malpractice claim where it “allege[d] similar damages” (InKine Pharm. Co. v Coleman, 305 AD2d 151, 152 [1st Dept 2003] [emphasis added]). Except for damages for emotional and mental distress — which cannot be recovered on a legal malpractice claim (see Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000]; see also Dombrowski v Bulson, 19 NY3d 347, 349, 351-352 [2012]) — and punitive damages — which are “awarded only in exceptional cases” (Marinaccio v Town of Clarence, 20 NY3d 506, 511 [2013]; see also Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 13 [1st Dept 2008]) — the damages sought in the first and second causes of action are the same.”

How Might A Legal Malpractice Case Play Out Here?

Posted in Uncategorized

The New York Law Journal reported a “drastic sanction” against a medical malpractice defense firm today in Lucas v Stam  2017 NY Slip Op 01190  Decided on February 15, 2017  Appellate Division, Second Department.

“This medical malpractice action arises from ophthalmological surgery performed on September 5, 2007, on the plaintiff’s decedent by the defendant William M. Schiff, a vitreoretinal surgeon, at the Harkness Eye Institute, which is owned and operated by the defendant New York Presbyterian Hospital Columbia University Medical Center (hereinafter the Hospital). The plaintiff alleges that prior to the surgery, a surgical booker working at the Hospital gave the decedent a history and physical form to provide to his internist, the defendant Lawrence Stam, in order to obtain medical clearance for the surgery. The form, which was partially completed by the surgical booker, indicated that the surgery was going to take place under local anesthesia. Stam wrote on the form that the decedent was a “moderate risk for surgery,” and under the preprinted portion of the form stating, “Patient is in satisfactory condition for local/standby anesthesia,” Stam wrote, “yes.” The plaintiff alleges that the surgery was performed on both eyes under general anesthesia, and that the surgery lasted approximately seven hours. As a result of the surgery having been performed under general anesthesia, the decedent allegedly suffered a major stroke and other injuries.”

“We agree with the plaintiff that, under the circumstances, the Supreme Court improvidently exercised its discretion by imposing monetary sanctions upon the defendants and Martin Clearwater instead of striking the defendants’ answers.

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders (see Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d 1133, 1134; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d 680, 681; Montemurro v Memorial Sloan-[*3]Kettering Cancer Ctr., 94 AD3d 1066, 1066). This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 207-208; see Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521; Kihl v Pfeffer, 94 NY2d 118, 123).”

“”The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court” (Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1133; see Wolf v Flowers, 122 AD3d 728, 728; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 209). Even so, the Appellate Division ” is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse'” (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 209, quoting Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845). In determining the appropriate sanction to impose, we are guided by CPLR 3126, which permits courts to, among other things, “order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order” (CPLR 3126[1]), issue a preclusion order (see CPLR 3126[2]), or strike a pleading (see CPLR 3126[3]). The striking of a pleading is a drastic remedy that may only be warranted upon a clear showing that the failure to comply with discovery demands or court-ordered discovery was willful and contumacious (see Lazar, Sanders, Thaler & Assoc. Inc. v Lazar, 131 AD3d at 1133; Brandenburg v County v Rockland Sewer Dist. #1, State of N.Y., 127 AD3d at 681; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210). Although not expressly set forth as a sanction under CPLR 3126, we have held that the imposition of a monetary sanction under CPLR 3126 may be appropriate to compensate counsel or a party for the time expended and costs incurred in connection with an offending party’s failure to fully and timely comply with court-ordered disclosure (see Knoch v City of New York, 109 AD3d 459; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 801; O’Neill v Ho, 28 AD3d 626, 627). Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Accordingly, the court should have granted that branch of the plaintiff’s motion which was to strike the defendants’ answers.”

A Legal Malpractice Verdict

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Jury verdicts in the Legal Malpractice field are rare.  Most cases are settled, and the balance are disposed of in motion practice.  We are proud to share a New York Law Journal news article with you about this Legal Malpractice Jury Verdict from Supreme Court, Westchester County.

“A jury awarded nearly $400,000 to a Westchester County municipality that claimed its counsel for a group of civil rights cases incorrectly advised that the city would not have to pay the plaintiffs’ legal fees.

In 2004, White Plains police officers arrested three people after they asked why their friend was getting arrested. After the three were cleared of resisting arrest and obstruction charges, they sued the city in federal court, alleging false arrest and malicious prosecution

Joseph Maria, a White Plains lawyer representing the city, offered $10,000 to each plaintiff to settle the case. But the city alleged Maria made a “crucial mistake” by failing to state that the award was intended to cover all costs, including attorney fees.

The plaintiffs accepted, and Southern District Judge Robert Patterson awarded nearly $291,000 in attorney fees. After the city lost its appeal in 2012, Patterson awarded the plaintiffs’ lawyers an additional $106,000 in fees.

In 2014, the city of White Plains sued Maria and his firm, Joseph A. Maria PC. Westchester County Judge David Everett granted White Plains’ partial motion for summary judgment that the defendants were negligent when they departed from the “good and accepted” practice of law.

From there, White Plains moved to prove the “case within the case,” or that it would have won the underlying case if not for Maria’s negligence, and a jury trial was held earlier this month before Westchester state Supreme Justice Lewis Lubell.

Andrew Lavoott Bluestone, who represented the city of White Plains, said the jury found the officers would have had probable cause to arrest the three plaintiffs.

Neither Maria nor Steven Coploff, of counsel to Steinberg & Cavaliere and Maria’s attorney in the malpractice action, returned calls requesting comment.


A Rare Judiciary Law 487 Case With Some Lessons

Posted in Legal Malpractice Cases

Judiciary Law § 487 cases that survive appeal are rare; more so when it is against opposing counsel.  Here, in Kimbrook Rte. 31, L.L.C. v Bass 2017 NY Slip Op 01083 Decided on February 10, 2017 the Appellate Division, Fourth Department states two principles of JL § 487:  no need to bring the claim in the underlying case, and little or no collateral estoppel will exist.

“Memorandum: Plaintiffs commenced this Judiciary Law § 487 action against defendant based on her conduct when representing plaintiffs’ adversary in a foreclosure action. We agree with plaintiffs that Supreme Court erred in granting defendant’s motion to dismiss the complaint. Although plaintiffs were aware of the alleged misconduct during the pendency of the prior foreclosure action, they are not precluded from bringing a plenary action alleging a violation of Judiciary Law § 487 provided that they are not collaterally attacking the judgment from the prior action (see Melcher v Greenberg Traurig LLP, 135 AD3d 547, 554; Chevron Corp. v Donzinger, 871 F Supp 2d 229, 261-262; see generally Stewart v Citimortgage, Inc., 122 AD3d 721, 722). Indeed, the language of the statute does not require the claim to be brought in a pending action (see § 487; Melcher, 135 AD3d at 554). Here, plaintiffs are seeking to recover damages for additional legal fees made necessary by defendant’s alleged misconduct in the foreclosure action, and they are not collaterally attacking the judgment of foreclosure (see generally Amalfitano v Rosenberg, 12 NY3d 8, 15).

We further agree with plaintiffs that the doctrine of collateral estoppel does not preclude their claim. The doctrine of collateral estoppel has two requirements: (1) “the identical issue necessarily must have been decided in the prior action and be decisive of the present action,” and (2) “the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455; see Ackman v Haberer, 111 AD3d 1378, 1379). In the foreclosure action, plaintiffs Kimbrook Route 31, L.L.C. (Kimbrook) and Philip J. Simao (Simao) moved before this Court to reduce the amount of the undertaking necessary to stay execution of the judgment of foreclosure pending the outcome of their appeal from that judgment. After we granted the motion in part, Kimbrook and Simao cross-moved for sanctions in this Court based on defendant’s conduct in procuring an affidavit from the receiver of the property in opposition to the motion to reduce the amount of the undertaking, and we denied the cross motion. A motion for sanctions for frivolous conduct (see 22 NYCRR 130-1.1 [c]) is not the same as a cause of action for attorney misconduct (see Judiciary Law § 487). We therefore conclude that collateral estoppel does not apply, inasmuch as the identical issue was not raised in the foreclosure action (see Melcher, 135 AD3d at 553-554).”

Could This Immigration Legal Malpractice Case Be More Timely?

Posted in Legal Malpractice Cases

Immigration and travel bans are the news this week, and Trapp-White v Fountain 
2017 NY Slip Op 00948  Decided on February 7, 2017 Appellate Division, First Department illustrates that what would normally be damages in the real world are simply waived away in the legal malpractice world.  Emotional distress?  Non-pecuniary loss?  Not in this world!

So, Plaintiff cannot collect for some real and definite damages that being deported definitely bring about.

“Order, Supreme Court, New York County (Donna M. Mills, J.), entered on or about October 1, 2015, which denied defendants’ motion to dismiss the complaint, unanimously modified, on the law, to grant the motion to the extent the complaint seeks damages for emotional distress or mental anguish, and otherwise affirmed, without costs.

Plaintiff, who ultimately was granted a green card and permitted to return to the United States, inter alia alleges that defendants’ failure to file a motion to reopen for over a year caused her to be deported and denied permission to return to the United States for almost two years, which caused her to lose her job. Accepting plaintiff’s allegations as true on this motion to dismiss pursuant to CPLR 3211 they sufficiently state a legal malpractice claim (see Lapin v Greenberg, 34 AD3d 277 [1st Dept 2006]).

However plaintiff failed to state a claim for emotional distress because the damages alleged are not pecuniary in nature (see Dombrowski v Bulson, 19 NY3d 347, 351, 352 [2012]), and the pleadings fail to allege the requisite extreme and outrageous conduct (see Hyman v Schwartz, 127 AD3d 1281, 1283-1284 [3d Dept 2015]; see also Wolkstein v Morgenstern, 275 AD2d 635, 636-637 [1st Dept 2000]).”


Summary Reversal in a Legal Malpractice Case…But What Lies Below?

Posted in Uncategorized

Salyamov v Lyhovsky  2017 NY Slip Op 00929  Decided on February 7, 2017  Appellate Division, First Department is a very short, very direct reversal of summary judgment in which the AD reverses the opinion of Justice Wright, who has since been transferred from Supreme Court to Family Court.  How could there have been such a divergence over such a simple fact?

“Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 25, 2016, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff asserts a legal malpractice claim based on defendant’s alleged failure to confirm that a sublessor of premises in which plaintiff wished to operate a business had the owner’s consent to assign the sublease at issue. However, there was no assignment of the sublease; the subtenant was a corporation whose stock plaintiff purchased in the transaction at issue. Further, it is undisputed that the master lease allowed the sublessor to sublet the premises without the owner’s consent.

Plaintiff’s additional theory of liability, that defendant failed to ascertain the status of the master lease, was improperly raised for the first time in opposition to defendant’s motion for summary judgment (see Atkins v Beth Abraham Health Servs., 133 AD3d 491 [1st Dept 2015]).”

A Couple of Interesting Doctrines In This Legal Malpractice Case

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Legal malpractice is an arcane and complicated body of law.  It has certain doctrines and principles that do not show up in other areas of the law.  Some are found in medical malpractice and some are found nowhere else.  The attorney-judgment rule is one doctrine that is shared with medical malpractice. The “but for ” causation principle is unique.

In Hickey v Steven E. Kaufman, P.C. 2017 NY Slip Op 30216(U) February 1, 2017 Supreme Court, New York County Docket Number: 153640/2013 Judge: Shlomo S. Hagler writes: “The Kaufman defendants argue that the judgment-call doctrine protects them from a claim of malpractice when they exercised their professional judgment by selecting “one among several reasonable courses of action” (Rosner v Paley, 65 NY2d 736, 738 [1985]); see Pere v St. Onge, 15 AD3d 465, 466 [2d Dept 2005]; Dweck Law Firm v Mann, 283 AD2d 292 [1st Dept 2001]). The Kaufman defendants contend that plaintiff was advised of the risks of failing to cooperate with the AG, and that the AG was unambiguously clear that his failure to cooperate expeditiously would result in his immediately having civil fraud charges brought against him. The Kaufman defendants maintain that plaintiff knowingly decided to enter into the agreement to avoid further investigation and indictment. The Kaufman defendants. rely heavily on Tantleff v Kestenbaum & Mark (131 AD3d 955 [2d Dept 2015]). However, Tantleff was before the court on a summary judgment motion, not a motion to dismiss pursuant to CPLR 3211. Therefore the standards for relief are different and the cases are not analogous. 3 Furthermore, there is no indication in Tantleff that the plaintiff had sought various protections that were initially provided in earlier drafts of an agreement but then omitted in later drafts. 4 Thus, at this stage of the litigation, it is premature to conclude that plaintiff has failed to state a cause of action based upon the judgment-call doctrine. ”

“In order to state a cause of action for legal malpractice, a plaintiff must set forth facts to support his assertion that the attorney’s negligence was a proximate cause of the loss sustained, that the attorney’s actions or inactions resulted directly in actual damages to the plaintiff and that the plaintiff would not have sustained the damages but for the attorney’s negligence (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 435-436 [1st Dept 2011]; Cannistra v O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314, 315-316 [2d Dept 2001]; Lavanant v General Acc. Ins. Co. of Am., 212 AD2d 450, 451 [1st Dept 1995] ) . According to the Kaufman defendants, “the proximate cause of any purported loss was (1) Hickey’s decision to execute the Escrow Agreement and avoid criminal and/or civil indictment by the AG; (2) Majestic’s decision to withhold payment from Hickey because of the AG’s investigation; (3) Plaintiff’s review, agreement, and execution of the Escrow Agreement[; and] (4) Hickey’s informed decision as a sophisticated businessperson to forego indictment” (Kaufman defendants’ Memorandum of Law at 10) . Notably absent from the Kaufman defendants’ recitation ·is plaintiff’s position that his loss was caused by the failure of his.attorneys to “make sure” that the Escrow Agreement was clear that the escrowed funds were plaintiff’s property, and that upon termination of the Escrow Agreement, the funds were to be distributed to him, not to CRM/Majestic. Further, according to plaintiff, his attorneys never made it clear to him that there was ambiguity in the Escrow Agreement itself which would enable CRM/Majestic to collect those funds (Amended Complaint, ¶ 32-33, 41, 56-57; Plaintiff’s Affidavit, ¶4-7).


Why Exactly Was She Arrested?

Posted in Legal Malpractice Cases

In a puzzling case, Mohyi v Karen G. Brand, P.C2017 NY Slip Op 30185(U) January 27, 2017
Supreme Court, New York County Docket Number: 157823/15 Judge: Debra A. James disposed of a Judiciary Law § 487 claim, allowing the case to continue on other claims.  In this electronic age of papers, and the sparsity of a “court file” we wonder what kind of papers could be “removed” by an attorney during a case?

“This action arises out of Brand’s alleged employment of plaintiff Diana T. Mohyi (Mohyi) as an attorney, of counsel, to Brand’s office in a matrimonial action, during the course of which Mohyi was arrested. Mohyi claims that, on January 24, 2014, in such matrimonial action, when she appeared before this court (Kaplan, J.), of counsel, to attorneys of record Brand’s office, she was arrested for improperly removing documents from the court file. Mohyi asserts that Brand had initially told her that she could remove the documents, but later denied that Mohyi had any connection with Brand’s office. As a result, Moyhi was charged with misdemeanor counts by the Manhattan District Attorney’s office, although those charges were eventually dismissed. ”

“Mohyi’s first cause of action alleges malicious prosecution. The Appellate Division, First Department, notes that: The tort of malicious prosecution requires proof of each of the following elements: ‘(1) the commencement or continuation of a . . . criminal proceeding by the defendant against the plaintiff, (2) the termination of the proceeding in favor of the [plaintiff], (3) the absence of probable cause for the . . . proceeding and (4) actual malice.’ Additionally, a plaintiff must also allege and prove ‘special injury’ [internal citations omitted]. Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 613 (1st Dept 2015). ”

“Mohyi’s final cause of action alleges violation of Judiciary Law§ 487. That statute provides that:

An attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, 2. Wilfully delays his client’s suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for, Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.

Brand again raises a number of arguments in favor of dismissal of this statutory claim. First, Brand argues that, “in order to be actionable, the alleged misconduct must occur in a court proceeding in which the plaintiff is a party,” and Mohyi was not a party to the matrimonial action, during the course of which she was arrested. Mohyi responds that this argument is misplaced, since Brand’s alleged misconduct took place during Mohyi’s criminal prosecution, an action to which she most certainly was a party. Since the complaint plainly alleges as much, the court agrees, and reject’s Brand’s first dismissal argument.

Next, Brand argues that Mohyi’s Judiciary Law§ 487 cause of action should be dismissed because it does not allege that she [Brand] engaged in misconduct during the course of representing a client in litigation and, in fact, she did not represent Mohyi in the criminal prosecution. Brand cites the decision of the Appellate Division, Second Department, in Crown Assoc., Inc. v Zot, LLC (83 AD3d 765 [2d Dept 2011]), which held that “the amended complaint failed to allege that [the defendant] was acting in his capacity as an attorney, and ‘the mere fact that a wrongdoer is an attorney is insufficient to impose liability [internal citations omitted].'” Id., at 768. Mohyi counters that “a successful claim for violation of Judiciary Law § 487 does not require that the attorney have represented the party bringing the claim,” and asserts that such a claim succeeds where “the attorney’s statements rose to the level of advice, as they did here.”

“The allegations of plaintiff’s complaint make it clear that Brand was acting merely as a witness, and not in her capacity as an attorney. In light of the fact that Brand was a witness who happened to be an attorney, her purportedly malicious actions were outside the ambit of Judiciary Law§ 487. Crown Assoc., Inc. v Zot, LLC, 83 AD3d at 768. Mohyi’s assertion that Brand’s purportedly fraudulent statements to the Manhattan District Attorney “rose to the level of advice,” in addition to being speculative, cannot overcome the fact of Brand’s status as a witness.”


What Makes A Sustainable Legal Malpractice Case?

Posted in Legal Malpractice Cases

A good legal malpractice case alleges that there were departures from good practice, which led to a bad result and that but for the departure from good practice there would have been a better result, with ascertainable damages.  This is exactly what plaintiff in Hall v Schrader, Israely, Deluca & Waters, LLP   2017 NY Slip Op 00871  Decided on February 3, 2017
Appellate Division, Fourth Department showed.  The Fourth Department found for plaintiff on this motion appeal.

“Addressing first plaintiff’s cross appeal, we note that, in an action to recover damages for legal malpractice, a plaintiff must demonstrate that the “attorney failed to exercise the ordinary reasonable skill and knowledge’ commonly possessed by a member of the legal profession” (Darby & Darby v VSI Intl., 95 NY2d 308, 313), and that “the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; see Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1327, lv dismissed 28 NY3d 942). We conclude that plaintiff’s cross motion was properly denied, inasmuch as she failed to establish that defendant’s alleged malpractice proximately caused her damages. In support of her cross motion, plaintiff submitted no evidence that she would have accepted the $60,000 offer if she had been properly advised, i.e., she failed to establish that, but for defendant’s deviation from the standard of care, she would not have been harmed (see Miazga v Assaf, 136 AD3d 1131, 1134-1135, lv dismissed 27 NY3d 1078; Kluczka v Lecci, 63 AD3d 796, 797-798).

We conclude with respect to defendant’s appeal that its motion also was properly denied. To establish its compliance with an attorney’s duty to keep his or her client reasonably informed, and to provide enough information to allow plaintiff to reasonably participate in settlement negotiations, defendant cited only to a single letter that was sent to plaintiff as a cover sheet with the original settlement offer in the underlying litigation. The letter stated that settlement “could be a quick way to resolve this case, without the need for spending a lot of money on a claim that [*2]the Plan may prevail on (despite our best efforts).” Even assuming, arguendo, that a reasonable factfinder could ultimately conclude that the letter satisfied defendant’s duty to “exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845, lv denied 20 NY3d 857; see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562, lv denied 100 NY2d 511), plaintiff raised a triable issue of fact by submitting an expert affirmation asserting, inter alia, that defendant failed to provide plaintiff with adequate advice (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Defendant also failed to establish as a matter of law that its conduct did not proximately cause plaintiff’s damages, inasmuch as it did not affirmatively eliminate every material issue of fact with respect to whether plaintiff would have accepted the settlement offer but for its deficient conduct (see generally Dempster v Liotti, 86 AD3d 169, 180-181).

Lastly, we reject defendant’s contention that it was entitled to summary judgment on the ground that plaintiff’s damages were not reasonably ascertainable. Plaintiff’s damages in this case were the $60,000 settlement offer that she lost, less the attorney’s fees and costs she incurred in pursuing the settlement. Thus, plaintiff’s damages were indeed ascertainable (see generally Plymouth Org., Inc. v Silverman, Collura & Chernis, P.C., 21 AD3d 464, 465).”


The 2016 Judiciary Law 487 Series

Posted in Legal Malpractice Cases

Continuing our review of JL 487 cases from 2016 we come across the ironic gem of a JL 487 case which ends in plaintiff’s attorney being sanctioned for bringing a case which (in essence) seeks a sanction for deceit.

Lawrence Ripak Co., Inc. v Gdanski  2016 NY Slip Op 06805 [143 AD3d 862]  October 19, 2016  Appellate Division, Second Department:

“The Supreme Court correctly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint in this action to recover damages for attorney misconduct pursuant to Judiciary Law § 487. The defendant demonstrated his prima facie entitlement to judgment as a matter of law by establishing that he did not “commit deceit or collusion” upon the court or any party (Judiciary Law § 487 [1]; see Tenore v Kantrowitz, Goldhamer & Graifman, P.C., 121 AD3d 775 [2014]; Pui Sang Lai v Shuk Yim Lau, 50 AD3d 758 [2008]; Knecht v Tusa, 15 AD3d 626 [2005]; O’Connell v Kerson, 291 AD2d 386 [2002]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

The Supreme Court also properly granted that branch of the defendant’s motion which was for an award of attorney’s fees and costs, and to impose sanctions upon the plaintiff’s counsel pursuant to 22 NYCRR 130-1.1. The court correctly concluded that the lawsuit against the defendant was “completely without merit in the law,” and that it was “undertaken primarily to . . . harass or maliciously injure another” (22 NYCRR 130-1.1 [c] [1], [2]). Under such circumstances, the plaintiff’s commencement and maintenance of the lawsuit constituted sanctionable “frivolous conduct” (22 NYCRR 130-1.1 [c]; see Miller v Cruise Fantasies, Ltd., 74 AD3d 919 [2010]; Astrada v Archer, 71 AD3d 803, 806 [2010]; Kamen v Diaz-Kamen, 40 AD3d 937, 938 [2007]).”