New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

The Melcher Replica Kitchen

Posted in Legal Malpractice News

Sometimes a cigar is simply a cigar, and sometimes plaintiffs have to produce wildly expensive trial props.  In Melcher v Greenberg Traurig LLP
2015 NY Slip Op 30855(U)  May 18, 2015  Supreme Court, New York County  Docket Number: 650188/2007  Judge: O. Peter Sherwood a scene not unlike the Pumpkin Papers case unfolded.  Here is Judge Sherwood on the replica kitchen.

“On January 27, 2004, Melcher’s counsel, Jeffrey Jannuzzo, requested that the original Amendment be produced for forensic testing ofits authenticity (Jannuzzo letter to Corwin dated Jan. 27, 2004, Plaintiffs Exhibit 9). On February l, Fradd informed Corwin that the original Agreement had been damaged-in a tea-making incident (Fradd e-mail to Corwin dated Feb. 1, 2004, Plaintiffs Exhibit 1 I). The first page was destroyed and the second page, with Fradd’s signature, was singed (id.; Plaintiffs Exhibit 12). On February 2, 2004, Corwin was informed that no record of creating 3 [* 3] the Amendment was found in Governale’s files, and that the Amendment lacked the standard footer used by Govemale’s firm (Corwin notes dated Feb. 2, 2004, Plaintiffs Exhibit 13). 1 Nonetheless, an undamaged copy of the Amendment was attached to Fradd’s February 13, 2004, affidavit, which was filed and submitted to the court in support of a motion to dismiss the Apollo Action (Plaintiffs Exhibit 27).

Plaintiffs arson expert the Apollo Action created a replica of Fradd’s kitchen in order to test whether the damage to the Amendment could have been done in the manner claimed. Plaintiff stored the replica kitchen, so that the defendants in this case could inspect it. Fradd no longer lives in the same apartment, so the original kitchen is no longer available for inspection. Plaintiff offered the replica kitchen to defendants, and has advised defendants that he intends to discard it if they do not take it. Defendants argues that plaintiff must preserve this evidence. Accordingly, plaintiff seeks an order instructing defendants to take the replica kitchen or waive the right to inspect it. He asserts that his obligation to produce pursuant to CPLR 3120 can be “satisfied by telling the party seeking 17 [* 12] the discovery where the materials are and providing a reasonable opportunity” to view them (Memo at 4, quoting Zegarelli v Hughes, 3 NY3d 64, 69 [2004 ]). The parties dispute whether expert testimony regarding the feasability ofFradd’s version of how the Amendment came to be damaged will be relevant at trial, and expert discovery has not yet begun. As Melcher has not shown any undue burden, the court directs that he preserve the replica kitchen at least until expert discovery is concluded.”

An Interesting Insight into Judiciary Law 487 and Timing

Posted in Legal Malpractice News

As we started discussing yesterday, Melcher v Greenberg Traurig LLP  2015 NY Slip Op 30855(U)  May 18, 2015  Supreme Court, New York County  Docket Number: 650188/2007  Judge: O. Peter Sherwood is a historic case.  In the Court of Appeals, it was determined that this deceit statute is not really a statute at all; it is part of the common law.  There are a number of lesser issues that are addressed in this second visit to Supreme Court.

“This action was commenced on June 25, 2007, with a single cause of action pursuant to Judiciary Law Section 487, which provides: “[a]n attorney or counselor who: I. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … , 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.” Plaintiff James L. Melcher claims the defendants, Greenberg Traurig LLP (GT) and GT partner Leslie Corwin, deceived the court and the plaintiff in an earlier litigation. The defendants in this case represented defendants Apollo Medical Fund Management L.L.C. (Apollo) and Apollo principal Brandon Fradd in a suit brought by the plaintiff in 2003 (the Apollo Action).

The parties dispute whether Melcher may pursue this claim in a separate action, or is limited to bringing it in the underlying Apollo Action. Defendants argue that this action is barred by New York’s rule against claim splitting, citing Alliance Network LLC v Sidley Austin LLP, 43 Misc 3d 848 (Sup Ct, New York County 2014)(“The First Department has held that a party’s remedy for a violation of Section 487 stemming from an attorney’s actions in a litigation ‘lies exclusively in that lawsuit itself, … not a second plenary action”‘) quoting Yalkowsky v Century Apartments Assoc., 215 AD2d 214, 215 (1st Dept 1995). Melcher argues otherwise, relying on Amalfitano v Rosenberg, 12 NY3d 8 (2009) and Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 15 (2014)(allowing this litigation to proceed and reversing the First Department decision granting a motion to dismiss on statute of limitations grounds).

In a similarly positioned case, Zimmerman v Kohn (Index No. 652826/2013, 2014 WL 1490936 [Sup Ct, NY County, April 11, 2014]), the court determined that the plaintiff in an underlying action could not subsequently bring an action based on Judiciary Law§ 487 against the underlying defendants’ counsel when the plaintiff had raised the deceit allegations in that action and settled the matter before the evidentiary hearing. The underlying action was brought in the United States District Court for the Eastern District of New York against Poly-Prep Day School for the alleged cover-up of sexual abuse of students by a coach (id. at 1 )(the Poly-Prep Action). During the course oflitigating the Poly-Prep Action, Zimmerman sought “sanctions for fraud committed on the Court” by the defendants’ counsel (id). Those issues were held in abeyance pending an evidentiary hearing (id.). The parties subsequently entered into a settlement agreement and stipulated to dismiss the action with prejudice (id.). In the Judiciary Law§ 487 claim Zimmerman subsequently brought in New York State Supreme Court, the court noted that”[ o ]nee a claim for violation of Judiciary Law [Section] 487 is raised in another action, the remedy lies exclusively in that lawsuit regardless of whether the attorneys are parties to the action” (id. at 2). Upon review, the Appellate Division First Department affirmed but not on grounds of estoppel as the Supreme Court had found. Instead, the Appellate Division concluded that plaintiff had suffered no damages and affirmed on that basis (see Zimmerman, 125 AD3d at 414). The Appellate Division did not address the issue of estoppel. Accordingly, there is no estoppel issue to be decided by this court. The claim has not been waived because Melcher specifically declined to release any claims against Corwin and GT in the Apollo Action settlement agreement (Reply Memo at 4, n 3; January 14, 2014 Settlement Agreement, Plaintiff’s Exhibit I 08).”

Another Chapter in the Melcher Saga

Posted in Legal Malpractice News

Melcher v Greenberg Traurig LLP  2015 NY Slip Op 30855(U)  May 18, 2015  Supreme Court, New York County  Docket Number: 650188/2007  Judge: O. Peter Sherwood is a very (very) important case in the Judiciary Law § 487  world.  When the case went to the NY Court of Appeals, it led to the decision  that JL 487 arrives directly from the common law and not from statute, hence it has a 6 year statute of limitations.

Melcher is back in the news, as the underlying JL  487 litigation continues.  This week, summary judgment was denied, and the Court threw in a few interesting tidbits.

Must the 487 case be brought in the underlying case?

“The parties dispute whether Melcher may pursue this claim in a separate action, or is limited
to bringing it in the underlying Apollo Action. Defendants argue that this action is barred by New
York’s rule against claim splitting, citing Alliance Network LLC v Sidley Austin LLP, 43 Misc 3d
848 (Sup Ct, New York County 2014)(“The First Department has held that a party’s remedy for a
violation of Section 487 stemming from an attorney’s actions in a litigation ‘lies exclusively in that
lawsuit itself, … not a second plenary action”‘) quoting Yalkowsky v Century Apartments Assoc.,
215 AD2d 214, 215 (1st Dept 1995). Melcher argues otherwise, relying on Amalfitano v Rosenberg,
12 NY3d 8 (2009) and Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 15 (2014)(allowing this
litigation to proceed and reversing the First Department decision granting a motion to dismiss on
statute of limitations grounds). ”

“In a similarly positioned case, Zimmerman v Kohn (Index No. 652826/2013, 2014 WL
1490936 [Sup Ct, NY County, April 11, 2014]), the court determined that the plaintiff in an
underlying action could not subsequently bring an action based on Judiciary Law§ 487 against the
underlying defendants’ counsel when the plaintiff had raised the deceit allegations in that action and
settled the matter before the evidentiary hearing. The underlying action was brought in the United
States District Court for the Eastern District of New York against Poly-Prep Day School for the
alleged cover-up of sexual abuse of students by a coach (id. at 1 )(the Poly-Prep Action). During the
course oflitigating the Poly-Prep Action, Zimmerman sought “sanctions for fraud committed on the
Court” by the defendants’ counsel (id). Those issues were held in abeyance pending an evidentiary
hearing (id.). The parties subsequently entered into a settlement agreement and stipulated to dismiss
the action with prejudice (id.). In the Judiciary Law§ 487 claim Zimmerman subsequently brought
in New York State Supreme Court, the court noted that”[ o ]nee a claim for violation of Judiciary
Law [Section] 487 is raised in another action, the remedy lies exclusively in that lawsuit regardless
of whether the attorneys are parties to the action” (id. at 2). Upon review, the Appellate Division
First Department affirmed but not on grounds of estoppel as the Supreme Court had found. Instead,
the Appellate Division concluded that plaintiff had suffered no damages and affirmed on that basis
(see Zimmerman, 125 AD3d at 414). The Appellate Division did not address the issue of estoppel.
Accordingly, there is no estoppel issue to be decided by this court. The claim has not been
waived because Melcher specifically declined to release any claims against Corwin and GT in the
Apollo Action settlement agreement (Reply Memo at 4, n 3; January 14, 2014 Settlement
Agreement, Plaintiff’s Exhibit I 08).”

Serving Two Masters, When Neither May Be Insured

Posted in Legal Malpractice News

Legal malpractice insurance, which one might think is a subject reserved solely for the attorney, is truly a subject of interest to the plaintiff as well.  No insurance may lead to no settlement.  Hence…

Here the insurance company would like to disclaim on the basis that the attorney was actually doing business as an education maven while getting insurance as an attorney.  This is generally outside of the scope of legal malpractice insurance.  Now, the carrier and the attorney are battling over defense costs.

Law Offs. of Zachary R. Greenhill P.C. v Liberty Ins. Underwriters, Inc.  2015 NY Slip Op 04382  Decided on May 21, 2015  Appellate Division, First Department centers on an educational foray into China, which apparently did not go well.   “Plaintiffs, an attorney and his law firm, seek a declaration that defendants, which issued a lawyers professional liability insurance policy, were required to provide a defense and pay for all defense costs with respect to counterclaims asserted against Zachary Greenhill (Mr. Greenhill) in an underlying contract action (Zachary Greenhill and Judy Lee Greenhill v The Dwight School, The Dwight School in China LLC, Stephen H. Spahn and New York Preparatory School, Inc., Sup Ct, NY County, index No. 603653/09) (the underlying contract action). Before plaintiffs commenced this action, the underlying contract action settled and the counterclaims were dismissed. Accordingly, in this action, plaintiffs seek to recover defense costs incurred in connection with those counterclaims against them in the underlying action. Plaintiffs assert that they are entitled to such costs because defendants (the insurer) breached their duty to defend and the counterclaims do not fall within any policy exclusion.

Defendants contend that plaintiffs failed to establish any breach of the duty to defend, that plaintiffs’ motion is premature, and that they need discovery to determine whether the counterclaims fall within certain policy exclusions which apply to situations where an attorney is sued for legal malpractice, but the attorney has also engaged in certain outside business activities. We agree with defendants.”

“In the underlying contract action, the Greenhills sought to enforce a partially executed consulting agreement they claimed to have with Dwight China. Pursuant to that agreement, they were to receive semiannual consulting fees for the following services: “business development, sales and marketing appropriate to [Dwight China’s] business, legal services, contracting for legal services and government filings, contract negotiations, college and university guidance services and close and overall execution of the Company’s business plan” The consulting agreement was executed by Spahn on behalf of Dwight China and the Dwight School (Dwight entities), but neither of the Greenhills ever signed it.

In their answer to the second amended complaint in the underlying contract action, the Dwight entities and Spahn denied the enforceability of the consulting contract and alleged that Mr. Greenhill had enlisted the aid of outside counsel to structure the operating agreement in such a way that it personally benefitted the Greenhills’ interests. In addition to asserting a counterclaim against the Greenhills for repudiation of the consulting agreement, the Dwight entities and Spahn asserted a counterclaim against Mr. Greenhill for legal malpractice, alleging that “[Zachary] Greenhill had an attorney-client relationship” with them and that he breached his fiduciary duties to the Dwight entities by having them sign the consulting agreement “without fully informing [them] of his view of the possible consequences of such a signature absent the Greenhills’ signature, or advising them to seek independent counsel regarding the alleged Consulting Agreement.” The Dwight entities claimed further that Mr. Greenhill had engaged in self-dealing by using the consulting agreement as evidence of the operating agreement that had never been signed.”

“Mr. Greenhill, much like the attorneys in K2 and Lee & Amtzis, obtained a lawyer’s professional liability policy that specifically excludes coverage in where the attorney is serving two masters: his client and himself. Plaintiffs seek to distinguish K2 solely on the basis that it involved the issue of whether the insurer had to indemnify its insured as opposed to

providing a defense. If, however, coverage is excluded because of the hybrid nature of the legal representation, defense costs are also excluded (see Lee & Amtzis, 2015 NY Slip Opn 02919 *3). While the counterclaims are, in part, rooted in the legal services Mr. Greenhill provided, allegedly failed to provide, failed to provide, overall the counterclaims consist of intertwined allegations about Mr. Greenhill’s legal services to The Dwight School and Dwight China, the latter of which he appears to have had a financial interest in. Therefore, defendants have raised issues of fact whether Mr. Greenhill’s activities on behalf of the Dwight entities were of a hybrid nature, because of the allegations of self-dealing, the Greenhills’ alleged 49% ownership interest in Dwight China, and the Greenhills’ efforts in enforcing the consulting agreement, which personally benefitted them financially. At a minimum, discovery is necessary on the issue of Mr. Greenhill’s ownership interests and whether such interests come within the Equity Interests Exclusion.

Because plaintiffs have not established as a matter of law that defendants breached the policy or that the counterclaims do not fall within the policy exclusions and defendants seek discovery, the issue of whether plaintiffs are entitled to recover their defense costs from defendants is premature.”

Another Bulk Sales Legal Malpractice Case II

Posted in Legal Malpractice News

Yesterday, we started a discussion of Randazzo v Nelson  2015 NY Slip Op 04299  Decided on May 20, 2015  Appellate Division, Second   Department which arose from the sale of a deli in Staten Island.  Deli’s make retail sales, and buyer’s attorney must know that there can be an audit by the NYS Tax Department of the sales taxes which are due.  There will almost always be some sales taxes due (from the current quarter), and the savvy buyer’s attorney will either follow the rules set forth by the Tax department, or hold a large enough escrow to survive any problems.

Unfortunately for buyer, this was not done, and a legal malpractice case ensued.

“The plaintiffs retained the defendant attorney to represent them in the purchase of a delicatessen known as Gentile’s, Inc. (hereinafter Gentile’s), in Staten Island. The transaction was consummated through a stock purchase agreement dated December 10, 2009. Prior to the February 25, 2010, closing, Gentile’s was dissolved by proclamation. The defendant drafted an indemnification and escrow agreement, which was executed at the closing, in which the seller agreed to indemnify the plaintiffs for claims relating to the period prior to closing. Funds were to be held in escrow by the seller’s attorney for seven days for the payment of liens. After receipt of a March 2, 2010, statement of tax liabilities from the Department of Taxation and Finance (hereinafter the Department), the seller paid the known outstanding tax liabilities, and the defendant authorized the release to the seller of the funds held in escrow. Almost two months later, the plaintiffs received notice from the Department that Gentile’s had outstanding sales tax liabilities, which had attached to their successor delicatessen pursuant to Tax Law § 1141(c).

The plaintiffs commenced this action against the defendant alleging, inter alia, legal malpractice. The defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). The Supreme Court granted the motion, and the plaintiffs appeal.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit [*2]of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87; Thompson Bros. Pile Corp. v Rosenblum, 121 AD3d 672, 673). Where a party offers evidentiary proof on a motion pursuant to CPLR 3211(a)(7), “the criterion is whether the proponent of the pleading has a cause of action, not whether he [or she] has stated one” (Guggenheimer v Ginzburg, 43 NY2d 268, 275;see Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530). ” [A] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint'” (McGuire v Sterling Doubleday Enters., L.P.,19 AD3d 660, 661, quoting Leon v Martinez, 84 NY2d at 88; see Rovello v Orofino Realty Co.,40 NY2d 633, 635; Berman v Christ Apostolic Church Intl. Miracle Ctr., Inc., 87 AD3d 1094, 1096-1097).”

 

 

Another Bulk Sales Legal Malpractice Case

Posted in Legal Malpractice News

When a business that makes sales to the public, and collects sales tax is sold, the buyer may become liable for unpaid sales taxes of the seller.  There is a well-understood process by which the buyer can immunize himself.  Really, all it takes is following the rules.  Unfortunately, in Randazzo v Nelson  2015 NY Slip Op 04299  Decided on May 20, 2015  Appellate Division, Second Department the rules were not followed.

How does plaintiff defend against the CPLR 3211(a)(1) motion?  By showing that the documents submitted do not utterly refute the allegations of the complaint.  “Here, the complaint, as amplified by the affidavit of Richard Randazzo (see Leon v Martinez, 84 NY2d at 88), alleges that the defendant breached his duty of care, inter alia, by failing to ensure that certain tax liabilities of the seller did not attach to the plaintiffs’ successor delicatessen pursuant to Tax Law § 1141(c). It alleges that the defendant, inter alia, failed to await the final determination of the seller’s tax liabilities by the Department, and a notice by the Department that such tax liabilities had been wholly paid or satisfied, or no longer existed, before releasing the purchase funds to the seller. As a result, the outstanding tax liabilities of the seller attached to the plaintiffs, forcing them to close down the business.”

“Further, the documents submitted by the defendant did not conclusively establish a defense as a matter of law (see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589). Contrary to the defendant’s contention, in the absence of evidence that the plaintiffs were made whole in their separate action against the seller pursuant to the indemnification agreement executed at the closing, such indemnification is no defense to the plaintiffs’ claim that had they been properly advised, the tax assessment would have been obviated entirely (see Yiouti Rest. v Sotiriou, 151 AD2d at 745).”

How Can This Happen?

Posted in Legal Malpractice News

Commercial client hires a law firm to litigate its claims against a municipality.  The law firm fails to file a Notice of Claim and similarly fails to file a motion seeking leave to file a late notice of claim.  The worst is yet to come.  The law firm has allowed its malpractice insurance to lapse, and has no assets.  How can this happen?

Garrison Contr., Inc. v Medina, Torrey, Mamo & Camacho, P.C. 2015 NY Slip Op 30782(U) May 15, 2015 Supreme Court, Putnam County Docket Number: 603/13 Judge: Lewis J. Lubell is an example of just how badly a law firm can hurt its clients.

“Plaintiffs bring this action for legal malpractice against, among others, the Law Firm of Medina, Torrey, Mamo & Camacho, P.C. (the “Firm”) and one of its members in his individual capacity, By Decision & Order of February 17, 2015, the Court granted Torrey’s 1 motion to dismiss as unopposed. Thereafter, the Court was advised that the motion had in fact been adjourned. That decision is now vacated. [* 1] David Torrey (“Torrey”), who personally handled the underlying litigation in an action entitled Town of Philipstown v. Garrison Contracting Inc. (Putnam County Index No. 324/2008; [the “Underlying Action”]). The thrust of this legal malpractice 2 action is the failure of Defendants to have timely filed a notice of claim with the Town of Philipstown on behalf of Plaintiffs in connection with Plaintiffs’ allegations against Philipstown, by way of amended answer with counter-claims in the Underlying Action and, in any event, the failure of Defendants to have sought leave to file a late notice of claim in connection therewith. Plaintiffs note that it was the very absence of a notice of claim and failure to have sought leave to file a late notice of claim that ultimately lead to the dismissal of Plaintiffs’ counterclaim against Philipstown upon appeal (see Town of Philipstown v Garrison Contr., Inc., 85 AD3d 1014 [2d Dept 2011]).

“Plaintiffs failed to exercise due diligence in attempting to serve the summons and complaint upon Torrey within 120 days of the filing of the complaint, nor ever for that matter. It was only upon learning during the course of discovery that the Firm had allowed its malpractice insurance policy to lapse, had no assets and would not be able to satisfy any judgment, that Plaintiffs turned their attention to Torrey who had not yet been served with process. Despite Plaintiffs’ ongoing knowledge of Torrey’s whereabouts, availability and participation in the underlying lawsuit as a member of the Firm, Plaintiffs did not serve Torrey with process until November 20, 2014, some twenty months after the commencement of the action. “

Another Unsuccessful Criminal Legal Malpractice Case

Posted in Legal Malpractice News

Recently we told a mother that she had little likelihood of success in suing her son’s criminal defense attorney.  Questions of privity aside, the bar is extraordinarily high in trying to sue after a conviction.  Social policy and the Courts have set up a situation in which the lack of “actual innocence” acts as a bar to the legal malpractice claim.  Here is Justice Braun discussing the matter in Kaplan v Khanna     2015 NY Slip Op 25158  Decided on May 15, 2015  Supreme Court, New York County.

” Where a plaintiff pleads guilty in an underlying criminal prosecution, expressly admitting his or her guilt, and that plea remains undisturbed, it precludes a legal malpractice claim as a matter of law (see Carmel v Lunney, 70 NY2d 169, 173 [1987] [“To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense (citation omitted), for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. [*2]Here, because plaintiff’s conviction by plea of a misdemeanor violation of the Martin Act has not been successfully challenged, he can neither assert, nor establish, his innocence. He has thus failed to state a cause of action .”]; Alampi v Russo, 345 NJ Super 360, 371 [NJ Super AD 2001] [to permit the plaintiff in a legal malpractice action to “go behind a federal guilty plea … would undermine the integrity of the federal guilty plea in pursuit of a highly speculative thesis-that plaintiff would have achieved an optimum outcome’ of no prosecution if his first attorney had in retrospect used different tactics.”]). Moreover, in pleading guilty before the District Judge, plaintiff acknowledged the factual basis for the guilty plea, that he entered it willingly and voluntarily, and that he was satisfied with his attorney’s representation, and that court found that there was a factual basis for the plea of guilty (cf. Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757-758 [2nd Dept 2014] [“The plaintiff’s allegations that he was coerced into settling the litigation were utterly refuted by his own admissions during the settlement proceeding that he had discussed the terms of the settlement with his attorneys, that he understood the settlement terms and had no questions about them, that he was entering into the settlement freely, of his own volition, and without undue influence or coercion, and that he was satisfied with his legal representation.” Thus, the legal malpractice cause of action was dismissed, upon a CPLR 3211 (a) (7) motion]).”

There Can Be Danger When the Case Seems Too Good

Posted in Legal Malpractice News

Facebook is the Mount Everest of Intellectual Property litigation quests.  It’s just so big!  When the lawfirms in this case came across a potential client who just might own half of Facebook, all caution was forgotten.  Sure, the plaintiff resided in the poorest county in New York, where there are more cows then people.  Sure, he had a slightly deficient background or a cover story of how he might have owned a lot of facebook, but, gollly gee, It’s just so big!

Anyway, Facebook, Inc. v DLA Piper LLP (US)   2015 NY Slip Op 30764(U)  May 11, 2015  Supreme Court, New York County  Docket Number: 653183/2014  Judge: Eileen A. Rakower  is the result.

“This is an action for malicious prosecution and violation of New York Judiciary Law § 487 arising from various law firms and attorneys’ alleged participation in a fraudulent breach of contract lawsuit against plaintiffs, Facebook, Inc. (“Face book”) and Mark Elliot Zuckerberg (“Zuckerberg”) (collectively, “Plaintiffs”). Non-party Paul Ceglia (“Ceglia”) filed the underlying breach of contract action in June 2010 in the Supreme Court of Allegany County, New York, under the caption, Paul D. Ceglia v. Mark Elliot Zuckerberg and Facebook, Inc., No. 1 O-cv-00569-RJA (W.D.N.Y.) (the “Ceglia Action”). Plaintiffs claim that Ceglia forged the purported contract document in issue in that case, and that defendants, DLA Piper (US) (“DLA Piper”), Christopher P. Hall (“Hall”), John Allcock (“Allcock”), Robert W. Brownlie (“Brownlie”), Gerard A. Trippitelli (“Trippitelli”) (and together with DLA Piper, Hall, Allcock, and Brownlie, the  “DLA Defendants”), Paul Argentieri & Associates (“P A&A”), Paul A. Argentieri (“Argentieri”) (and together with PA&A, the “Argentieri Defendants”), Lippes Mathias Wexler Friedman LLP (“LMWF”), Dennis C. Vacco (“Vacco”), Kevin J. Cross (“Cross”) (and together with LMWF and Vacco, the “Lippes Defendants”), Milberg LLP (“Milberg”), Sanford P. Dumain (“Dumain”), and Jennifer L. Young (“Young”) (and together with Mil berg and Dumain, the “Mil berg Defendants”) (collectively, “Defendants”), are various law firms and attorneys who pursued the Ceglia Action, on Ceglia’s behalf, with knowledge that the subject document was forged.

Plaintiffs’ complaint alleges that DLA Defendants and Lippes Defendants entered appearances for Ceglia in the Ceglia Action, “[ o ]n April I I, 20 I I-after (on information and belief) Marks and the Kasowitz lawyers had notified their co-counsel that they had discovered [evidence of forgery] on Ceglia’s [hard drive] and that Ceglia’s claims were fraudulent”. (Compl. if 62). Plaintiffs’ complaint further asserts: Also on April I 1, 201 I, Ceglia’s new team oflawyers filed a 25-page amended complaint (the “Amended Complaint”) that repeated Ceglia’s false claims. The Amended Complaint was signed by Hall of DLA Piper and also listed as counsel Allcock, Brownlie, and Trippitelli otDLA Piper; Vacco and Cross of Lippes Mathias; and Argentieri. Like the original Complaint, the Amended Complaint attached a ‘copy of the forged [contract document] as an exhibit, represented that the [this document] was authentic, and claimed that Zuckerberg had breached the purported contract. (Compl. if 63).

Turning now to Plaintiffs’ second cause of action, for violation of New York Judiciary Law § 487, pursuant to Judiciary Law § 487, any attorney or counselor who “is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” 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.” (Jud. Law § 487). Section 487′ s “evident intent” is “to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function.” (Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14 [2009]). Thus, allegations that defendant deceived or attempted to deceive the court with fictitious documents may be sufficient to state a cause of action for violation of Judiciary Law § 487. (Maze! 315 W 35th LLC v. 315 W 35th Assoc. LLC, 120 A.D.3d 1106, 1107 [1st Dep’t 2014] 7 [* 7] [“Plaintiffs evidence showing that defendant presented false assignment documents for recordation in the City Register and sent a letter to the justice stating falsely that his client was the true owner of the notes and mortgages establishes an egregious act of intentional deceit of the court sufficient to support the cause of action.”]; Kur man v. Schnapp, 73 A.D.3d 435, 435 [1st Dep’t 2010] [“Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendant deceived or attempted to deceive the court with a fictitious letter addressed to him from the former licensing director of the City’s Taxi and Limousine Commission (TLC) that stated, inter alia, that plaintiff was under a lifetime ban on owning any licenses with the TLC.”]). Here, Plaintiffs’ complaint alleges that Moving Defendants maintained a breach of contract action as against Facebook and Zuckerberg even though Moving Defendants knew that the contract in issue in that action was a forgery. (Compl. ~~ 60-61, 67, 113 ). Plaintiffs’ complaint further alleges that Moving Defendants filed discovery motions and made arguments in court in reliance on the authenticity of a purported contract document that Moving Defendants knew to be forged. (Compl. irir 74-75; 95-96). Accepting Plaintiffs’ allegations as true and drawing all inferences in favor of the non-moving party, Plaintiffs’ complaint adequately alleges that Moving Defendants deceived or attempted to deceive the court presiding over the Ceglia Action with fictitious documents. Accordingly, viewing Plaintiffs’ complaint in the light most favorable to Plaintiffs, the four corners of Plaintiffs’ complaint are sufficient to state a cause of action for violation of Judiciary Law § 487 as against Moving Defendants, for purposes of surviving a motion to dismiss at this early stage of litigation.”

 

Doctor v. Lawyer in a Legal Malpractice Case

Posted in Legal Malpractice News

In this version of Dr. v. Lawyer, it’s a knock-out to the lawyer.  Doctor  joins a medical practice and comes under scrutiny for his advocacy of “pranic healing.”  “Pranic Healing® is a highly evolved and tested system of energy medicine developed by GrandMaster Choa Kok Sui that utilizes prana to balance, harmonize and transform the body’s energy processes. Prana is a Sanskrit word that means life-force. This invisible bio-energy or vital energy keeps the body alive and maintains a state of good health. In acupuncture, the Chinese refer to this subtle energy as Chi. It is also called Ruach or the Breath of Life in Hebrew”

So, anyway, back to the legal malpractice.  Doctor had the opportunity to review a series of corporate amendments, and did not go to see the changes when offered.  The changes might have been aimed at him, and he was let go. Litigation ensued in Mendoza v Akerman Senterfitt LLP   2015 NY Slip Op 04193  Decided on May 14, 2015  Appellate Division, First Department.

“Plaintiff is a doctor specializing in pediatric, prenatal, and neonatal medicine. In April 2000, he joined nonparty Children’s and Women’s Physicians of Westchester, LLP (CWPW). He signed both an Amended and Restated Partnership Agreement dated, January 29, 1999, and an employment agreement that was subsequently amended in April 2002.

During the negotiations between CWPW and plaintiff, CWPW was represented by defendant Eric W. Olson’s prior law firm, and plaintiff was represented by independent counsel.

On October 25, 2010, nonparty Dr. Leonard Newman, CWPW’s president, sent an email to CWPW’s managing partners, including plaintiff. Newman’s email forwarded an email from defendant Olson, now a member of defendant Akerman Senterfitt LLP, regarding certain amendments to the partnership agreement:

“I am forwarding to each of you the recommendation of our attorney, Eric Olson . . . in the development of a tiered structure for Managing Partners . . . .”Please review the explanation listed below from Eric Olson. Questions can be directed to Mr. Olson [at his office].”. . . You can come to [an office at CWPW’s principal place of business] to review the documents. However, due to the confidential nature of the documents, we need to limit their distribution beyond the Chairman’s Office. Please stop by before November 15th.”

Olson’s email stated, “This e-mail intends to summarize the two major changes to CWPW’s Partnership Agreement” — namely, “Implementation of a Tiered Managing Partner Structure” and “Entities as Partners” [to meet requirements in the agreement]. In addition to “the two major changes” that Olsen mentioned, the amendment also amended, as relevant here, the grounds for removal of managing partners and the grounds for dissociation of a partner.

On March 8, 2011, Olson sent plaintiff a notice that CWPW intended to terminate his employment based on breaches of the employment agreement — specifically, because of his “pranic healing” practice. Thereafter, plaintiff commenced the instant action asserting causes of[*2]action for aiding and abetting CWPW’s breach of its fiduciary duty to plaintiff, breach of defendants’ fiduciary duties to plaintiff, fraud, negligent misrepresentation, tortious interference with contract and/or prospective economic advantage, and legal malpractice. Plaintiff’s allegations are based on his contention that defendants drafted certain amendments, not mentioned in the email, to expedite and facilitate his termination from the partnership. Defendants moved to dismiss the complaint under CPLR 3211(a)(1) and (a)(7).

Contrary to plaintiff’s argument, the court applied the correct standards on this motion to dismiss and did not effectively convert the motion into one for summary judgment (see Zyskind v FaceCake Mktg. Tech., Inc., 110 AD3d 444 [1st Dept 2013]). The court properly deemed the above emails that were described and quoted in the complaint itself to be documentary evidence (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432-433 [1st Dept 2014]).

The legal malpractice claim was correctly dismissed because, as plaintiff acknowledged in his opening brief on appeal, defendants were CWPW’s attorneys, not his (see Waggoner v Caruso, 68 AD3d 1, 5 [1st Dept 2009], affd 14 NY3d 874 [2010]). Nor can plaintiff maintain a malpractice claim based on the fraud exception to the privity rule, since, as indicated, his fraud claim is not viable (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595 [2005]; Griffith v Medical Quadrangle, 5 AD3d 151, 152 [1st Dept 2004]).”

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