New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Second Attorney Out of a University Harrassment Legal Malpractice Case

Posted in Uncategorized

The first set of attorneys obtained dismissal in 2014. Hyman v. Schwartz, 2014 NY Slip Op 01362 [114 AD3d 1110].   “In August 2007, plaintiff—then a Cornell University graduate student—was charged with violating the University’s Campus Code of Conduct by allegedly harassing a professor. Following disciplinary proceedings, the University’s Hearing Board sustained the harassment charge and issued a penalty, which was, apart from a slight modification, affirmed by the University’s Review Board. Plaintiff then retained defendant Arthur Schwartz to represent her in a CPLR article 78 proceeding challenging the University’s determination. In addition, Schwartz represented plaintiff in a Title IX claim (see 20 USC § 1681 et seq.). After both of those matters were unsuccessful (Matter of Hyman v Cornell Univ., 82 AD3d 1309 [2011]; Hyman v Cornell Univ., 834 F Supp 2d 77 [2011]), plaintiff commenced the instant action against Schwartz, defendant Schwartz, Lichten & Bright, PC (hereinafter the law firm)—Schwartz’s former and now dissolved law firm—and defendants Stuart Lichten and Daniel Bright—his former partners—seeking damages for negligent and intentional infliction of emotional distress and legal malpractice. In the same complaint, plaintiff also challenged an arbitration award made in Schwartz’s favor in connection with a fee dispute between Schwartz and plaintiff.”

Now, the second (and last) attorneys have won dismissal. Hyman v Burgess  , 2015 NY Slip Op 01687, Decided on February 26, 2015 Appellate Division, Third Department.

“Plaintiff first asserts that Supreme Court erred in denying her motion to dismiss defendant’s counterclaims. A motion to dismiss for failure to state a cause of action can be granted only where the facts alleged do not “fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Lewis v DiMaggio, 115 AD3d 1042, 1043 [2014]; Brooks v Key Trust Co. N. A., 26 AD3d 628, 629-630 [2006], lv dismissed 6 NY3d 891 [2006])[FN2]. As to defendant’s breach of contract counterclaim, she alleged that the parties executed enforceable retainer agreements, defendant performed professional services under those agreements and plaintiff failed to perform, thereby causing defendant to sustain damages. Affording defendant’s counterclaims a liberal construction, accepting the allegations as true and giving defendant “the benefit of every possible inference,” we determine that she has stated a viable cause of action against plaintiff for breach of contract (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Torok v Moore’s Flatwork & Founds., LLC, 106 AD3d 1421, 1422 [2013]). However, with regard to defendant’s counterclaim that plaintiff was unjustly enriched by her refusal to remit necessary payments for the legal services and related expenses that defendant provided, the assertions raised in defendant’s breach of contract counterclaim echo this equitable claim and, therefore, it must be dismissed (see Corsello v Verizon N.Y., Inc., 18 NY3d 777, 790-791 [2012]; Samiento v World Yacht Inc., 10 NY3d 70, 81 [2008]).

Defendant’s counterclaim of quantum meruit “requires a showing of ‘a [party]’s performance of services in good faith, acceptance of those services by [the other party], an expectation of compensation and proof of the reasonable value of the services provided'” (Rafferty Sand & Gravel, LLC v Kalvaitis, 116 AD3d 1290, 1291-1292 [2014], quoting DerOhannesian v City of Albany, 110 AD3d 1288, 1292 [2013], lv denied 22 NY3d 862 [2014]). Accepting defendant’s allegations as true, namely that she provided plaintiff with legal services, in good faith and with the understanding that payment would be remitted, and that such services were accepted by plaintiff without the provision of due compensation, we find that defendant stated a cognizable equitable claim for quantum meruit (see Rafferty Sand & Gravel, LLC v Kalvaitis, 116 AD3d at 1291-1292; Venture Silicones, Inc. v General Elec. Co., 14 AD3d 924, 925 [2005]).

Turning our attention to defendant’s cross motion seeking dismissal of the amended complaint, we conclude that Supreme Court properly dismissed plaintiff’s legal malpractice cause of action on the merits. “‘In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action “‘but for'” the attorney’s negligence'” (Leder v Spiegel, 9 NY3d 836, 837 [2007] cert denied sub nom Spiegel v Rowland, 552 US 1257 [2008], quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]; accord Hyman v Schwartz, 114 AD3d at 1112; see [*2]Kaufman v Medical Liab. Mut. Ins. Co., 121 AD3d 1459, 1460 [2014]). Although plaintiff maintains that defendant’s professional competence was deficient and failed to conform with

the requirements of the parties’ retainer agreements, she does not allege, to any degree, that defendant’s purported shortcomings precluded her success in the litigation at issue or caused her to sustain ascertainable damages (see Arnold v Devane, 123 AD3d 1202, 1204 [2014]; MacDonald v Guttman, 72 AD3d 1452, 1455 [2010]; Tabner v Drake, 9 AD3d 606, 610 [2004]). Having failed to plead an essential element of a legal malpractice cause of action, Supreme Court properly granted defendant’s motion to dismiss this claim (see Hyman v Schwartz, 114 AD3d at 1112; compare Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1116-1117 [2014]; Alaimo v McGeorge, 69 AD3d 1032, 1034 [2010]). Likewise, the court’s dismissal of plaintiff’s claims sounding in, among other things, unjust enrichment, breach of contract and breach of fiduciary duty — all of which were encapsulated within and entirely duplicative of plaintiff’s legal malpractice cause of action — was correct (see Adamski vLama, 56 AD3d 1071, 1072-1073 [2008]; Guiles v Simser, 35 AD3d 1054, 1055 [2006]).

Summary Judgment Denied, More Discovery Permitted in a Legal Malpractice Case

Posted in Legal Malpractice News

We must say that we’re puzzled over the Appellate Division’s reference to a CPLR 3211(a) motion “to dismiss the complaint insofar as asserted against them, or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against them, or to compel additional discovery.”  Portilla v Law Offs. of Arcia & Flanagan  2015 NY Slip Op 01626
Decided on February 25, 2015  Appellate Division, Second Department, modifys the order of Supreme Court and allows discovery post-note of issue.

“The Supreme Court properly denied, as untimely, that branch of the appellants’ motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) insofar as asserted against them, as it was not made within the time period in which the appellants were required to serve an answer (see CPLR 3211[e]), and no extension of time to make the motion was requested by the appellants or granted by the court (see CPLR 2004; Lema v New York Cent. Mut. Fire Ins. Co., 112 AD3d 891; Clinkscale v Sampson, 74 AD3d 721; Bennett v Hucke, 64 AD3d 529; Bowes v Healy, 40 AD3d 566).

The Supreme Court also properly denied that branch of the appellants’ motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) insofar as asserted against them. “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v Liotti, 86 AD3d 169, 176 [internal quotation marks omitted]; see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812; Held v Seidenberg, 87 AD3d 616, 617). Here, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), [*2]the complaint alleged sufficient material facts giving rise to a cognizable cause of action to recover damages for legal malpractice.

Moreover, for a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements (see Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772; Goldberg v Lenihan, 38 AD3d 598). Here, the appellants contend that the alleged breach of duty did not cause the plaintiff damages. However, their submissions failed to eliminate all triable issues of fact with respect to whether the plaintiff sustained damages proximately caused by their alleged malpractice. Accordingly, the Supreme Court properly denied that branch of the appellants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the appellants.

However, the Supreme Court should have granted that branch of the appellants’ motion which was for additional discovery. A court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that “unusual or unanticipated circumstances” developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Lopez v Retail Prop. Trust, 84 AD3d 891; Audiovox Corp. v Benyamini, 265 AD2d 135, 140). Here, the appellants demonstrated the existence of unusual or unanticipated circumstances which warranted granting their request for post-note-of-issue discovery. Accordingly, the Supreme Court should have granted that branch of the appellants’ motion.”

What is the Requisite Pattern Necessary for a Good Judiciary Law 487 Case?

Posted in Uncategorized

USHA SOHA Terrace, LLC v Robinson Brog Leinwand Greene Genovese & Gluck, P.C. 2014 NY Slip Op 31813(U),  July 9, 2014,  Supreme Court, New York County , Judge: Melvin L. Schweitzer is a fairly typical Judiciary Law 487 case.  It is a legal malpractice and Judiciary Law 487 case in which plaintiffs assert direct and derivative claims against legal counsel for the owner and developer in a construction project in which plaintiff LLC was a minority investor.  On a motion to dismiss, the court dismissed.

“The motion to dismiss is granted. First, plaintiff Minority i\:’fember, as a member of a limited liability corporation, lacks standing to sue in its individual capacity for losses derived solely from injury to the limited liability company. See Yudell v Gilbert, 99 AD3d 108, 113-114 (1st Dept 2012]; Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258, 266 (2d Dept 2010); Baker v Andover Assoc. Mgt. Corp., 30 Misc 3d 1218 [A], 2009 NY Slip Op 52788[U], * 16-17 (Sup Ct Westchester County 2009). To determine if a claim is direct or derivative, the court must look at the source of the claim of right. If the harm is from the defendants to the corporation, the harm to the shareholders or investors flows through the corporation, and is derivative. On the other , ~ hand, if the right flows from a breach of a duty owed directly to the shareholder, then the suit is direct. See Weber v King, 110 F Supp 2d 124, 132 (ED NY 2000); Baker v Andover Assoc. Mgt. Corp., 30 Misc 3d 1218 [A], 2009 NY Slip Op 52788 [U], * 16-17., A claim for diminution in ‘ value of the shares is harm to the corporation, the shareholder’s injury flows through the corporation, and the claim is derivative even if the decrease in value derives from a breach of fiduciary duty. See Yudell v Gilbert, 99 AD3d at 113-144; O’Neill v Warburg Pincus & Co., 39 AD3d 281, 281-282 (1st Dept 2007). Here, in the amended complaint, plaintiff asserts losses as any “monies owed to [2280 FDB] and [Developer], which were in tum paid to [RGS Holdings and Futterman] resulted in actual monetary losses to [plaintiff Minority Member], in that [plaintiff Minority Member] retains a fourteen percent ( 14%) inter~st in assets of Developer” (amended complaint,~ 43). This claim for diminution in the value of plaintiff’s shares involves harm to the corporation, and may only be pursued derivatively. In addition, the only other injury alleged is the failure of 2280 FOB to recover any portion of its aw~d against Racanelli, which is a direct injury only to 2280 FDB. ”

“Finally, the third claim in the amended complaint fails to sufficiently plead a claim under Judiciary Law § 487. Under that statute, the plaintiff needs to allege an extreme and chronic pattern of legal delinquency in order to recover. Solow Mgt. Corp. v Seltzer, 18 AD3d 399, 400 (1st Dept 2005]; Pellegrino v File, 291 AD2d at 63). The amended complaint here fails to allege the requisite pattern of wrongdoing or deceit necessary to sustain that claim, and fails to allege that any loss suffered by 2280 FDB was the proximate result of Legal Counsel’s alleged . collusion or deceit. “

No Expert? Motion to Dismiss Denied

Posted in Legal Malpractice News

Issues that are beyond the "ken" of ordinary jurors require expert testimony says the First Department in Wadsworth Condos, LLC v Dollinger Gonski & Grossman 2014 NY Slip Op 00930 [114 AD3d 487] February 13, 2014 Appellate Division, First Department. 

"Plaintiff’s belatedly asserted grounds for alleging legal malpractice may be entertained since they involve no new factual allegations and no new theories of liability, and there is little or no basis on which defendants could claim surprise or prejudice (see generally Alarcon v UCAN White Plains Hous. Dev. Fund Corp., 100 AD3d 431 [1st Dept 2012]; Valenti v Camins, 95 AD3d 519 [1st Dept 2012]). The new claims raise issues of fact whether defendants were negligent in their legal representation of the tenants-in-common, and whether, but for the alleged negligent representation, the tenants-in-common would have been able to avoid the extensive delays in project construction that resulted in the loss of the construction loan, construction delay expenses, and increased attorneys’ fees. The tenants-in-common retained defendants initially to advise them with respect to a stop work order issued by the Department of Transportation (DOT) that prohibited further demolition until an appropriate permit was secured from DOT or the Department of Buildings. Rather than trying to secure a permit or obtain a definitive statement of the ownership of the retaining wall sought to be demolished, defendants reviewed a survey and deed and accepted DOT’s position that the wall was on city property, and entered into what became protracted negotiations with DOT. In moving for summary judgment, defendants did not submit an expert legal opinion as to the ownership of the wall (which is not clear from the record) or whether the failure to seek a demolition permit rather than engage in negotiations constituted negligence, issues that are beyond the ken of the ordinary person (see Nuzum v Field, [*2]106 AD3d 541 [1st Dept 2013]; Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134, 141 [1st Dept 2013], lv denied 22 NY3d 855 [2013])."

Judiciary Law 487 Relief “Not Lightly Given”

Posted in Legal Malpractice News

Judiciary Law 487, the attorney-deceit statute, part of the common law, is reserved by the Appellate Division for really really bad conduct.  It is not "lightly given."  While proof does not require "clear and convincing" evidence, in practice it is rarely granted, and overwhelmingly dismissed by the Courts.  So it is in Chowaiki & Co. Fine Art Ltd. v Lacher  2014 NY Slip Op 01992 [115 AD3d 600]
March 25, 2014  Appellate Division, First Department.

"In this action arising from defendant attorney and his law firm’s representation of plaintiffs in an action brought against them by a former employee, plaintiffs allege that they were excessively billed for services rendered, and that they were harassed, threatened and coerced into paying the excessive and overinflated fees. The motion court properly dismissed plaintiffs’ claim for breach of fiduciary duty as duplicative of the breach of contract claim, since the claims are premised upon the same facts and seek identical damages, return of the excessive fees paid (see CMMF, LLC v J.P. Morgan Inv. Mgt. Inc., 78 AD3d 562 [1st Dept 2010]; cf. Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]). Although plaintiffs sufficiently allege an independent duty owed to them, arising from the attorney-client relationship, the fraud claim is similarly redundant of the breach of contract claim, since it also seeks the same damages (see Coppola v Applied Elec. Corp., 288 AD2d 41, 42 [1st Dept 2001]; Makastchian v Oxford Health Plans, 270 AD2d 25, 27 [1st Dept 2000]).

However, we find that, as a dispute exists as to the application of the retainer agreement as to defendant, plaintiffs need not elect their remedies and may pursue a quasi-contractual claim for unjust enrichment, as an alternative claim (see Wilmoth v Sandor, 259 AD2d 252, 254 [1st Dept 1999]).

The cause of action based upon Judiciary Law § 487 was properly dismissed since relief under this statute is not lightly given and the conduct alleged does not establish the existence of a chronic and/or extreme pattern of legal delinquency which caused damages (see Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12 NY3d 715 [2009]; Nason v Fisher, 36 AD3d 486, 487 [1st Dept 2007]). [*2]"

A Legal Malpractice Case Lost on the “But For” Rule

Posted in Legal Malpractice News

As we discussed yesterday, courts are eager to dismiss legal malpractice cases, early in the case or late, on the question of whether Client can show that "but for" the attorney’s negligence there would have been a better economic outcome for the client. Mackey Reed Elec., Inc. v Morrone & Assoc., P.C.  2015 NY Slip Op 01426  Decided on February 18, 2015  Appellate Division, Second Department  is an example.  Read the decision as closely as you wish, but there is not a scintilla of explanation of why client could not show the "but for" causation.

"Here, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice. Accepting as true the facts alleged in the complaint, and according the plaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), it fails to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying proceedings or that the plaintiffs would not have incurred any damages (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; Holschauer v Fisher, 5 AD3d 553). Accordingly, the complaint fails to state a cause of action to recover damages for legal [*2]malpractice.

In addition, the causes of action alleging breach of fiduciary duty and fraud are duplicative of the legal malpractice cause of action, since they arise from the same facts as those underlying the legal malpractice cause of action, and do not allege distinct damages (see Biberaj v Acocella, 120 AD3d 1285, 1287; Palmieri v Biggiani, 108 AD3d 604, 608; Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the causes of action alleging breach of fiduciary duty and fraud."

Too Quick to Dismiss a Ledgal Malpractice Case

Posted in Legal Malpractice News

We believe that a higher percentage of legal malpractice cases suffer dismissal, either at the answer or at summary judgment than do other forms of litigation in negligence.  Admittedly, we have but anecdotal evidence.  Nevertheless, Facie Libre Assoc. I, L.L.C. v Littman Krooks, L.L.P.
2015 NY Slip Op 01389  Decided on February 17, 2015  Appellate Division, First Department is a prime example of an institutional bias towards the attorney over the client in dismissals.

"Order, Supreme Court, New York County (Joan M. Kenney, J.), entered September 11, 2013, which granted defendant’s motion to dismiss the complaint, unanimously modified, on the law, to deny the motion as to the legal malpractice cause of action, and otherwise affirmed, without costs.

The legal malpractice cause of action should not be dismissed because it cannot be concluded as a matter of law from the allegations in the complaint that defendant had no duty to monitor the transaction at issue for plaintiffs, including requesting copies of and ascertaining the status of documents required by the issuer for the stock sale to go forward (see Katz v Paul, Hastings, Janofsky & Walker LLP, 19 Misc 3d 1121(A), 2008 NY Slip Op 50796[U] [Sup Ct, NY County 2008]). In particular, plaintiffs allege that there were indications that the legal opinion necessary for the transaction had not been sent to the issuer and that those indications should have triggered an inquiry by defendant (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 115 AD3d 228, 240-241 [1st Dept 2014]). The complaint adequately alleges that but for defendant’s failure to make inquiry as to the status of the legal opinion, the opinion would have been delivered by the seller (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Plaintiffs’ claim for lost profits is not barred by the settlement with the seller for the return of the purchase price since no election of remedies against defendant is involved (see Rennie v Pierce Cards, 65 AD2d 527, 528 [1st Dept 1978])."

Continuous Representation and the “Nice Relationship”

Posted in Legal Malpractice News

Clients get the benefit of an extended statute of limitations under the principal of continuous representation.  It arose out of "continuing treatment" in the medical malpractice world.  In legal malpractice, there must be some evidence of a "continuing relationship of trust and confidence" between client and attorney.  Absent that, the statute begins on the day the mistake is made.  That’s what happened in Priola v Fallon  2014 NY Slip Op 03130 [117 AD3d 1489]  May 2, 2014
Appellate Division, Fourth Department. 

"Memorandum: In this legal malpractice action, plaintiff appeals from an order granting defendants’ motion for summary judgment dismissing the amended complaint on the ground that, inter alia, the action was time-barred. Plaintiff contends that Supreme Court erred in granting the motion because the statute of limitations was tolled by the continuous representation doctrine. We reject that contention. "A cause of action for legal malpractice accrues when the malpractice is committed" (Elstein v Phillips Lytle, LLP, 108 AD3d 1073, 1073 [2013] [internal quotation marks omitted]). Here, defendants established that any malpractice occurred, at the latest, in 2003 and thus made a prima facie showing that the action was time-barred (see International Electron Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1512 [2010]). "The burden then shifted to plaintiff[ ] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine" (id.; see Macaluso v Del Col, 95 AD3d 959, 960 [2012]), and plaintiff failed to meet that burden inasmuch as he failed to present the requisite " ’clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney’ " to toll the statute of limitations (Kanter v Pieri, 11 AD3d 912, 913 [2004]; see Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031, 1032-1033 [2005]). In light of our determination, we do not address plaintiff’s remaining contentions. Present—Smith, J.P., Peradotto, Sconiers and Valentino, JJ."

Real Estate and Legal Malpractice

Posted in Legal Malpractice News

It’s a well known meme that real estate is close to the heart of New Yorkers.   "Location, location, location" is a phrase bandied about even by schoolchildren.  So, it’s no surprise that real estate transactions may figure in a legal malpractice setting.  Here, in Rojas v Paine  2015 NY Slip Op 01258  Decided on February 11, 2015  Appellate Division, Second Department we see what happens when the attorney does not compare the description of a property in a deed with that of the property purported to be sold.

"In April 2005, the plaintiffs entered into a contract to purchase a one-family house in the Town of Greenburgh from the defendants Andrew Paine and Karen Paine (hereinafter together the Paines). The house was situated on property designated as Lot No. 8 on a subdivision map filed in the Westchester County Clerk’s office. The plaintiffs were represented in the transaction by the defendants Paul Herrick and Rabin, Panero & Herrick, LLP (hereinafter together the Herrick defendants). The Herrick defendants ordered a title report from the defendant Statewide Abstract Corp. (hereinafter Statewide). The title report was issued by Statewide as agent for the defendant Stewart Title Insurance Company (hereinafter Stewart Title), which issued a policy of title insurance.

At the closing on June 6, 2005, the Paines delivered to the plaintiffs a bargain and sale deed reciting that the subject property was "the same property" as had been transferred to the Paines by two separate deeds, both recorded in the Westchester County Clerk’s office on March 4, 2005. However, the description of the property contained in Schedule A of the deed delivered on June 6, 2005, which had also been annexed to the contract of sale, contained only the description of the [*2]portion of Lot No. 8 set forth in one of the two deeds previously recorded on March 4, 2005.

In the fall of 2007, when the plaintiffs sought to sell the property to a relocation company, a title search revealed that the plaintiffs owned only a portion of Lot No. 8. As a result, the relocation company refused to take title to the property. Thereafter, the plaintiffs commenced this action against several parties. With respect to the Herrick defendants, the plaintiffs alleged that they were negligent in failing to discover that the property had been illegally subdivided, permitting the delivery of the deed to only a portion of the parcel, and failing to discover the existence of the remaining parcel. In an order entered September 30, 2011, the Supreme Court, inter alia, denied the cross motion of the Herrick defendants for summary judgment dismissing the complaint insofar as asserted against them, and the case proceeded to trial. Following the trial, a judgment dated June 12, 2013, was entered in favor of the plaintiffs and against the Herrick defendants in the total sum of $349,247.47."

"ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the plaintiffs."

 

Venue in a Legal Malpractice Case

Posted in Legal Malpractice News

Where Plaintiff may sue the attorney is the question of venue.  Generally speaking, it is in the county where the plaintiff resides, or where the defendant resides.  PCs "reside" in the county where their principal place of business is.  However, the location of the attorney’s office need not be the county where the principal place of business is.  That county is designated by the corporate documents filed for the PC.

In Brion v Moreira   2015 NY Slip Op 30160(U)  February 3, 2015  Supreme Court, New York  County Docket Number: 155815/14  Judge: Donna M. Mills  we see Supreme Court analyze there the law firm may be sued.
 

Thereafter, it is defendant’s burden to establish that given the type of action, the venue chosen was improper. Id. Plaintiff must demonstrate that the venue chosen was proper. Id. A plaintiff forfeits the right to select the venue in an action if said plaintiff chooses an improper venue in the first instance. Kelson v. Nedicks Stores, Inc., 104 A.D.2d 315, 478 N.Y.S.2d 648 (1st Dept.1984).
Here, plaintiffs rely on defendant Moreira PLLC’s Articles of Organization that were filed with the New York Secretary of State on August 23, 2005 which designated New York County as is principal office. Additionally, a computer printout, dated May 21, 2014 from the New York State Department of State’s website also confirms that Moreira’s principal place of business is New York County. The law is clear that the sole residence of a limited liability company for venue purposes is the county where its principal office is located as designated in its articles of organization (see CPLR 503 (c); Limited Liability Company Law§§ 102 (s]; 203 [e) [2]; Graziuso v 2060 Hylan Blvd. Rest. Corp., 300 AD2d 627, 628 (2002); see also Mi/om v Marble Hall Apts., Inc., 37 AD3d 672 [2007]; Hamilton v Corona Ready Mix, Inc., 21 AD3d 448, 449 (2005)). Such office need not be a place where business activities are conducted by the limited liability company (see Limited Liability Company Law§ 102 [s)). Since the defendants failed to establish that the county designated by the plaintiffs in the first instance was improper, its motion to change the venue of the action from New York County to Queens County shall be denied.

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