New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

No Harm, No Foul in a Legal Malpractice Setting

Posted in Legal Malpractice Cases

Here is a good example of a “no-damage” claim against an attorney.  The claim fails in this case for two reasons.  The first reason is that plaintiff has not been harmed.  No damages can be pled.  The second reason is that plaintiff cannot really say what the attorney might have done wrong.

Miami Capital, LLC v Hurwitz 2017 NY Slip Op 31925(U) September 12, 2017 Supreme Court, New York County Docket Number: 150310/2016 Judge: Saliann Scarpulla.

“In 2013, Miami Capital hired Hurwitz to provide legal services for its purchase of real property located at 218 West l l 6th Street, New York, New York (“the property”). The real estate transaction was consummated through two steps. First, the owner of the property, a non-for-profit corporation, Edith Pennamon Apartments Housing Development Fund Corporation (“Seller”), entered into a contract of sale for the property with 1111, Inc. Second, 1111, Inc. assigned all rights in the contract of sale and the property to Miami Capital. The purchase price of the property under the contract of sale was $1,400,000.

After the sale, West Harlem Community Organization, Inc. (“WHCO”) commenced an action against Miami Capital to rescind the purchase of the property and the deed. See West Harlem Communi_ty Organization, Inc. v. Miami Capital, LLC (Index No. 651003/2015). In that action, WHCO argued that the sale must be rescinded because the Seller’s officers failed to obtain approval from the New York State Supreme Court or the New York State Attorney General’s Office, as required under the New York Not-forProfit Corporation Law. In addition, WHCO alleged that Miami Capital knew or should have known that it was necessary to obtain approval for the purchase of the property. Shortly thereafter, Miami Capital commenced this legal malpractice action against Hurwitz. Miami Capital alleges that Hurwitz breached his duty of care by: (i) failing to obtain approval of the sale from New York Supreme Court; (ii) failing to obtain approval of the sale from the New York Attorney General; (iii) failing to comply with New York Not-for-Profit Corporation Law§ 510; (iv) failing to comply with New York Not-forProfit Corporation Law§ 511; and (v) failing to obtain clearance of title exceptions prior to the closing of the transaction. Miami Capital seeks $1,400,000 in damages, plus interest, costs, and attorney’s fees. Hurwitz now moves to dismiss the complaint because: (I) his representation did not fall below the standard of care for a New York attorney; (2) no proximate cause exists between the alleged negligence and damages; and (3) damages are not sufficiently alleged because Miami Capital remains the owner of the property and WHCO’s action against Miami Capital was discontinued.”

“Miami Capital does not plead that it suffered any damages from the WHCO action, which has been discontinued. Instead, the damages alleged by Miami Capital relate to a subpoena issued by the New York Attorney General’s Office. The subpoena seeks a deposition of “a person with knowledge concerning the title insurance for the sale of the Property” as well as documents related to Miami Capital’s purchase of the property. Although Miami Capital has received a subpoena frorn the Attorney General, Miami Capital does not plead any damages that it has suffered resulting from the subpoena or the Attorney General’s investigation. While Miami Capital anticipates that at some point in the future it could be subject to a rescission claim and could possibly lose the property because of the Attorney General’s investigation, at this point in time these alleged damages are purely speculative and not yet ripe. Accordingly, I find that Miami Capital failed to adequately plead damages to support a legal malpractice action. Moreover, Miami Capital does not adequately allege that Hurwitz breached his duty of care as a lawyer. NPCL § 510 requires a not-for-profit corporation to obtain . approval for the sale of substantially all its assets from the New York Supreme Court or Attorney General’s Office. The contract of sale for the property placed that burden on the Seller, requiring the Seller to obtain an order from the New York Supreme Court “[i]n the event that judicial consent is required in order for the Seller as a Not for profit Corporation to transfer and sell the Premises.” 1 . The Seller’s attorney informed Hurwitz by letter dated November 13, 2013 that the Seller “does not need [court] approval because the property is not ‘substantially all’ of our assets and/or real property.” The documents submitte.d thus show that the Seller, not Miami Capital was contractually obligated, to obtain court approval for the transaction if necessary, and that the Seller’s attorney represented to Miami Capital that court approval was not necessary under NPCL § 510. Under these circum~tances, Miami Capital has not adequately plead that Hurwitz breached his duty of care as its lawyer by not obtaining court approval for the sale. For the above stated reasons, Hurwitz’s motion to dismiss Miami Capital’s complaint is granted. “

A Primer on Fraud, Discovery and the Statute of Limitations

Posted in Legal Malpractice Cases

In a fact pattern that could have come from a bar exam, Justice Bannon dissects the fraud-discovery-statute of limitations issues arising from a real-estate fraud scheme which is said to have involved attorneys, lenders, borrowers and developers.

D. Penguin Bros., Ltd. v City Natl. Bank  2017 NY Slip Op 31926(U)  September 8, 2017
Supreme Court, New York County  Docket Number: 158949/2014 is about some lenders who lost a large amount of money.

“The plaintiffs served the complaint in Action No. 1 on January 20, 2016, and the complaint in Action No. 2 on May 26, 2015, alleging that the defendants improperly diverted approximately $10 million rightfully belonging to the plaintiffs from numerous real estate investment accounts and escrow accounts maintained for the plaintiffs’ benefit. The Williams defendants moved to dismiss the complaint as against them (Action No. 1, SEQ 002) and Spiegelman moved to dismiss the complaint against him (Action No. 2, SEQ 002) but, by orders dated July 26, 2016, and July 20, 2016, respectively, the defendants were permitted to withdraw the motions when the plaintiffs filed amended complaints in both actions during the pendency of the motions.

The amended complaint in Action No. 1 asserts 52 causes of action and the amended complaint in Action No. 2 asserts 78 causes of action alleging, inter alia, conversion, fraud, forgery, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, gross negligence, professional malpractice, and breach of contract, and also seeking an accounting.

The amended complaints allege that, in 2005 and 2008, the plaintiffs were induced to invest $4,500,000 with the defendants by false representations that the defendants were going to develop residential buildings for inclusion in federally subsidized housing programs, and that several of the defendants forged deeds and various approvals required from municipal agencies to falsely show the plaintiffs that closings on the sales of the buildings were effected in 2009, and that municipal approvals were acquired thereafter. The amended complaints further alleged that the Williams defendants and Spiegelman misappropriated the invested and escrowed funds without ever entering into actual development agreements or obtaining necessary governmental approvals. The plaintiffs also assert that Spiegelman, on behalf of the Williams defendants and himself, obtained unauthorized loans in the plaintiffs’ names in the sum of $2,200,000, and pocketed the loan proceeds, leaving the plaintiffs responsible for repayment. The plaintiffs aver that the defendants provided them with forged and fraudulent memoranda, thus concealing their scheme from the plaintiffs, and that the plaintiffs did not discover the thefts until February 3, 2011. ”

“”Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action.” Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 (1999); see Matter of Reilly v Reid, 45 NY2d 24 (1978). As a general rule, New York applies a “transactional approach” to analyzing the doctrine of res judicata, so that “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.” O’Brien v Syracuse, 54 NY2d 353, 357 (1981). ” “Since the prior federal court actions were dismissed for failure to state a claim under federal law, and the federal court declined to exercise supplemental jurisdiction over the pendent state-law causes of action, and thus not on the merits, the causes of action asserted here against the Williams defendants, save NBUF, as well as the causes of action asserted against Spiegelman, are not barred by res judicata. See Bielby v Middaugh, 120 AD3d 896 (4th Dept. 2014). The plaintiffs correctly contend that the dismissal of the state-court action against NBUF on the ground that it was time-barred does not have a res judicata effect upon the causes of action asserted against the remaining Williams defendants or Spiegelman because the statute of limitations defense was personal to NBUF and there was no privity between NBUF and the other Williams defendants. See Israel v Wood Dolson Co., 1 NY2d 116 (1956); see also John J. Kassner & Co., Inc. v City of New York, 46 NY2d 544 (1979). “

One Difference Between Tort and Contract

Posted in Legal Malpractice Cases

Professionals are often sued in both tort and contract.  So what is the difference?  One is a general wrong to the public and one is a specific wrong to a contracting party.  Judge Scarpulla discusses the issue in City of New York v Eastern Shipbuilding Group, Inc.
2017 NY Slip Op 31906(U)  September 7, 2017  Supreme Court, New York County  Docket Number: 452725/2014.  The case involves fireboats.

“This action arises out of the alleged defective design and construction of two fireboats, 343 and Firefighter II, for the Fire Department of New York (“FDNY”). In July 2005, FDNY contracted with RTL, an engineering firm, to design and oversee the construction of the fireboats, and selected ESG to complete the construction. Though no longer a defendant in this action, AMSEC, LLC (“AMSEC”) agreed with FDNY in May 2008 to act as the “owner’s representative.” The City formally accepted delivery of fireboats 343 and Firefighter II in 2010 after completing sea trials and final inspection. In 2014, both fireboats were taken from service and dry-docked for inspection and defect correction. The City alleges that the fireboats were a major investment for FDNY, and numerous design and construction flaws, including a lack of corrosion prevention measures, have caused severe and premature damage to the fireboats. To address the fireboats’ design and construction flaws, the City attests that it has spent nearly two million dollars in costs and repairs and expects to spend another million dollars in · additional necessary costs and repairs. ”

“Generally, “[ w ]here the plaintiff is merely seeking the benefit of its agreement, it is limited to a contract claim.” Dormitory Auth. Of State v. Samson Const. Co., 137 A.D.3d 433, 434 (1st Dep’t 2016). “Where, however, the particular project … is so affected with the public interest that the failure to perform competently can have catastrophic consequences; a professional may be subject to tort liability as well.” Id. (citations and quotations omitted). Here, there is a factual question whether the fireboats at issue were so affected with the public interest that RTL’s alleged failure to comply with the relevant standards could result in catastrophic consequences. RTL’s assertion that the fireboats merely failed to perform as anticipated does not eliminate the issue of fact of whether accessible fireboats to address an issue, e.g., a fire on the City waterfront, could have catastrophic consequences. “

No Damage, No Claim, No Case

Posted in Legal Malpractice Basics

Maroulis v Sari M. Friedman, P.C.  2017 NY Slip Op 06437  Decided on September 13, 2017
Appellate Division, Second Department is a textbook example of why approximately 40% of Judiciary Law § 487 cases are dismissed.  The Courts don’t really like them, and lack of damages proximately caused by the violation is the stated reason.  Here, the legal malpractice claims were dismissed on the theory after settlement, one must show that the attorneys effectively compelled that settlement.

“The defendants were also entitled to dismissal of the cause of action alleging a violation of Judiciary Law § 487, albeit on a ground different from that articulated by the Supreme Court. “[A]n injury to the plaintiff resulting from the alleged deceitful conduct of the defendant attorney is an essential element of a cause of action based on a violation” of Judiciary Law § 487 (Rozen v Russ & Russ, P.C., 76 AD3d 965, 968). Thus, to state a cause of action alleging a violation of Judiciary Law § 487 , the plaintiff must “plead allegations from which damages attributable to the defendants’ conduct might be reasonably inferred” (Mizuno v Nunberg, 122 AD3d 594, 595 [internal quotation marks and brackets omitted]; see Gumarova v Law Offs. of Paul A. Bornow, P.C., 129 AD3d 911, 912; Mizuno v Barak, 113 AD3d 825, 827). Here, the plaintiff failed to plead that he suffered any damages as a result of Friedman’s alleged misconduct.”


Direct and Derivitive Claims in Malpractice

Posted in Uncategorized

Privity is an essential element of standing to bring a legal or other professional malpractice claim.  Lack of privity reduces the ability to sue (some other person’s attorney) to fraud, malice or collusion.  So privity is ultra-important.  What happens when a stockholder wishes to sue the corporations attorney?  In that case the claim is either direct or derivative.

Judge Kornreich, in 1993 Trust of Joan Cohen v Baum   2017 NY Slip Op 30894(U)
May 2, 2017 Supreme Court, New York County Docket Number: 150058/2015 discusses how to determine whether the claim is direct or derivative.

“The First Department has adopted Delaware’s Tooley test for determining whether a claim is direct or derivative, which requires the court to examine “the nature of the wrong and to whom the relief should go.” Yudell v Gilbert, 99 AD3d I 08, 114 (I st Dept 2012), quoting TooleyvDonaldwn, Lufkin &.Jenrette, Inc., 845 A2d 1031, 1033 (Del 2004). For a claim to be direct, “[t]he stockholder’s claimed direct injury must be independent of any alleged injury to the corporation. The stockholder must demonstrate that the duty breached was owed to the stockholder and that he or she can prevail without showing an injury to the corporation.” Id. (emphasis added). “Thus, under Tooley, a court should consider ‘(I) who suffered the alleged harm (the corporation or the stockholders); and (2) who would receive the benefit of any recovery or other remedy (the corporation or the stockholders individually).”‘ Id.; see NAF Holdings, LLC i: Li & Fung (Trading) Ltd., 118 A3d 175, 180 (Del 2015) (an “important initial question has to be answered: does the plaintiff seek to bring a claim belonging to her personally or one belonging to the corporation itself?”). “[E]ven where an individual harm is claimed, if it is confused with or embedded in the harm to the corporation, it cannot separately stand.” Serino v Lipper, 123 AD3d 34, 40 (1st Dept 2014). The Baum Parties’ claims against Manocherian are derivative. They are all based on Manocherian’s duties to Langham as its “Tax Matters Partner”. While the precise meaning of “Tax Matters Partner” is somewhat unclear, there is no dispute (and the court assumes for the purpose of this motion) that Manocherian had contractual and fiduciary duties to Langham and the Trusts with respect to the tax matters he handled on their behalf. A successful claim for breach of such duties would result in recovery going to Langham or the Trusts. Baum, to be clear, was not a beneficiary, and thus a loss suffered by the Trusts is not a loss that affects Baum. Baum, personally, could not recover from Manocherian . ”


A Judiciary Law 487 Claim Not Dismissed

Posted in Legal Malpractice Cases

Kimbrook Rte. 31, L.L.C. v Bass  2017 NY Slip Op 01083 [147 AD3d 1508]  February 10, 2017
is the Appellate Division, Fourth Department’s latest JL §487 case.  It reversed Supreme Court’s dismissal of the complaint. It has two significant lessons.

“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 [2016]; Chevron Corp. v Donziger, 871 F Supp 2d 229, 261-262 [2012]; see generally Stewart v Citimortgage, Inc., 122 AD3d 721, 722 [2014]). 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 [2009]).

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 [1985]; see Ackman v Haberer, 111 AD3d 1378, 1379 [2013]). 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).”

Melcher To Be Appealed Once Again

Posted in Uncategorized

Last week we reported a stunning decision in the Melcher case which gutted its damage claim.  Today, Christine Simmons in the New York Law Journal reports that the trial is stayed pending an appeal.  It will be the third appeal in the case which has gone up to the AD, to the New York Court of Appeals, and back down.  She writes:

“Shortly after a Manhattan judge gutted a former hedge fund manager’s potential damages against Greenberg Traurig, the judge has stayed the upcoming trial to allow for an appeal.

The 2007 case is now on at least its third appeal, promising to prolong a legal battle that has spawned unwelcome headlines for the firm for a decade. Greenberg Traurig appealed twice before to the Appellate Division, First Department.

James Melcher, 77, was seeking about $16.5 million in damages from a Section 487 attorney deceit claim against Greenberg and its former shareholder, Leslie Corwin. Melcher claims Greenberg and Corwin helped their client deceive the court after the client claimed he accidentally burned a critical document while making tea.”


The Relation-Back Principle

Posted in Legal Malpractice Cases

The statute of limitations has a haunting presence in legal malpractice. It both generates and limits legal malpractice cases.  It is a source of many cases, i.e. where the underlying case was not started on time.  The Statute also plays a limiting role in legal malpractice when clients do not understand or learn of the effects of a mistake made by attorneys, or wait too long to sue.  They are then unable to seek remedy from attorneys who fell below the proper standard of practice.

One interesting twist in the analysis of the statute of limitations is the “relation-back” principle.  It is well discussed in O’Halloran v Metropolitan Transp. Auth.  2017 NY Slip Op 06237
Decided on August 22, 2017  Appellate Division, First Department Acosta, P.J.

“The relation-back doctrine, now codified in CPLR 203(f), provides that “[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions [or] occurrences . . . to be proved pursuant to the amended pleading” (CPLR 203[f]; see also Giambrone v Kings Harbor Multicare Ctr., 104 AD3d 546, 548 [1st Dept 2013] [making clear that the “salient inquiry” in deciding whether an otherwise untimely claim in an amended pleading relates back to a timely commenced action “is not whether defendant had notice of the claim, but whether, as the statute provides, the original pleading gives notice of the transactions [or] occurrences . . . to be proved pursuant to the amended pleading'”] [emphasis added]). The doctrine is “[a]imed at liberalizing the strict, formalistic pleading requirements of the [nineteenth] century, while at the same time respecting the important policies inherent in statutory repose,” and “enables a plaintiff to correct a pleading error—by adding either a new claim or a new party—after the statutory limitations period has expired” (Buran v Coupal, 87 NY2d 173, 177 [1995] [citations omitted]). It is within courts’ “sound judicial discretion to identify cases that justify relaxation of limitations strictures . . . to facilitate decisions on the merits if the correction will not cause undue prejudice to the plaintiff’s adversary” (id. at 178 [internal quotation marks and citation omitted]).

The Court of Appeals has recognized that a more relaxed standard applies where a plaintiff seeks to use the relation-back doctrine by adding a new claim against a defendant who is already a party to litigation as opposed to adding a new defendant (Buran, 87 NY2d at 178 [“allowing the relation back of amendments adding new defendants implicates more seriously the() policy concerns (underlying statutes of limitation) than simply the relation back of new causes of action since, in the latter situation, the defendant is already before the court”]; see also Duffy v Horton Mem. Hosp., 66 NY2d 473, 477 [1985] [“[A]n amendment which merely adds a new theory of recovery or defense arising out of a transaction or occurrence already in litigation clearly does not conflict with the() policies” underlying statutes of limitation – i.e., repose and the conservation of judicial resources – because “(a) party is likely to have collected and preserved available evidence relating to the entire transaction or occurrence and the defendant’s sense of security has already been disturbed by the pending action”]). Thus, although the Court of Appeals has adopted a three-part test for determining whether to apply relation back to an amended pleading that adds a new defendant, no such test applies where a plaintiff simply seeks the relation back of a new claim (see Buran, 87 NY2d at 178). In other words, where, as here, a proposed amended complaint contains an untimely claim against a defendant who is already a party to the litigation, the relevant considerations are simply (1) whether the original complaint gave the defendant notice of the transactions or occurrences at issue and (2) whether there would be undue prejudice to the defendant if the amendment and relation back are permitted (see CPLR 203[f]; CPLR 3025[b]; see Buran, 87 NY2d at 178; Caffaro v Trayna, 35 NY2d 245, 251 [1974]).

In accordance with these principles, we hold that the motion court providently exercised its discretion when it permitted plaintiff to amend her complaint to add her otherwise untimely claims of sexual orientation discrimination. All of plaintiff’s claims are based on the same occurrences — namely the underlying employment actions taken against her – and the original complaint put defendants on notice of those occurrences. To be sure, plaintiff’s original [*3]complaint did not allege the specific facts that she is a lesbian, that defendants were aware of her sexual orientation, that defendants discriminated against her on that basis, or that another lesbian colleague was demoted for supporting her internal dispute with Menduina. Nevertheless, the motion court correctly determined that the new claims are based on “the same subject matter alleged in the original complaint.” Defendants need not have been put on notice of every factual allegation on which the subsequent claims depend, because the original complaint put them on notice of the occurrences that underlie those claims (see Schneidman v Tollman, 279 AD2d 276, 276 [1st Dept 2001] [motion court “properly found that plaintiffs’ amended pleadings were not time-barred, since they relate back to the original complaint, merely adding additional factual detail”] [internal quotation marks omitted]).

Viewing “transactions [or] occurrences” through this broad lens for the purposes of relation back under CPLR 203(f) is especially important in the context of anti-discrimination actions – particularly those actions brought under the City HRL – in which it is frequently difficult for plaintiffs to articulate their employers’ motivations for treating them less well than other employees (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 37 [1st Dept 2011] [“discrimination rarely announces itself,” and “the defendant, by definition, is in a materially better position to provide evidence as to its actual motivation than the plaintiff”], lv denied 18 NY3d 811 [2012]). Of course, it is preferable that a plaintiff set forth every factual allegation on which her claims are based, but in these circumstances plaintiff should not be faulted for not previously raising her sexual orientation as a basis for defendants’ unfavorable treatment of her [FN3]. In this case, the occurrences underlying the new claim are defendants’ general treatment of plaintiff (e.g., denying her an opportunity to interview for advancement, giving her tighter deadlines than other employees, instituting disciplinary proceedings against her, and demoting her), all of which occurred on the same dates and in the same instances as alleged in the original complaint. That plaintiff now seeks to include another reason for those occurrences and another theory of liability cannot be fairly characterized as a failure to give notice of the occurrences she seeks to prove in her amended complaint.

Moreover, defendants will not be unduly prejudiced or surprised by allowing plaintiff to amend the complaint to add her new claims, because they have not been “hindered in the preparation of [their] case or . . . prevented from taking some measure in support of [their] position” (Jacobson v McNeil Consumer & Specialty Pharms., 68 AD3d 652, 654-655 [1st Dept 2009] [internal quotation marks omitted]; see also Buran, 87 NY2d at 178). “Prejudice does not occur simply because a defendant is exposed to greater liability or because a defendant has to [*4]expend additional time preparing its case” (Jacobson, 68 AD3d at 654 [citation omitted]). When defendants were first confronted with plaintiff’s original claims, it is likely that they conducted some kind of internal investigation into the entire series of alleged actions taken against plaintiff, to determine whether and on what grounds she was discriminated against (see Duffy, 66 NY2d at 477 [defendants are “likely to have collected and preserved available evidence relating to the entire transaction or occurrence” at the outset of the litigation]). Thus, they ought to know the discriminatory reasons for which plaintiff was treated unfavorably, if any such reasons exist. In any event, to the extent any prejudice against defendants exists, it is negligible and can be cured by further discovery (Jacobson, 68 AD3d at 654 [“(T)he need for additional discovery does not constitute prejudice sufficient to justify denial of an amendment”]).[FN4]

Some Lessons from Medical Malpractice Cases

Posted in Legal Malpractice Cases

Medical Malpractice preceeded legal malpractice (the ancient joke being that you could not have medical malpractice until a lawyer was around to harass a doctor) and continuous treatment begat continuous representation.  Here, in Lewis v Rutkovsky  2017 NY Slip Op 06342  Decided on August 29, 2017  Appellate Division, First Department we see both an well-written discussion of continuous treatment and an interesting split between the judges of a First Department bench.

“In this medical malpractice action, plaintiff claimed to have suffered injuries as a result of negligent care she received from defendant Frederick D. Rutkovsky, M.D., plaintiff’s primary care physician, and, vicariously, from defendant LHHN Medical P.C [FN1]. Specifically, plaintiff alleged that Dr. Rutkovsky failed to detect, diagnose, and treat a meningioma (that is, a benign brain tumor) from on or about April 3, 1998 until September 5, 2007. In support of her allegations, plaintiff asserted that Dr. Rutkovsky “ignored” her repeated complaints of migraine headaches, blurred vision, and other related symptoms. Plaintiff ultimately underwent a left frontal parasagittal craniotomy and suffered a loss of vision rendering her legally blind. By complaint dated March 5, 2010, plaintiff commenced this action against LHHN Medical, P.C., and Lenox Hill Community Medical Group, P.C. (together LHHN) and Dr. Rutkovsky, alleging medical malpractice and lack of informed consent.”

“Turning to the merits of defendants’ motions, the record presents issues of fact as to continuous treatment. As is well established, “the continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996] [internal quotation marks omitted]). In addition, “[w]here the malpractice claim is based on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition” (Wilson v Southhampton Urgent Med. Care, P.C., 112 AD3d 499, 500 [1st Dept 2013][internal quotation marks omitted]).

Here, read in the light most favorable to plaintiff, the record contains issues of fact as to whether from March 1999 until at least September 5, 2007 there was continuity of treatment for symptoms — namely, recurring and sometimes severe headaches — that were traceable to plaintiff’s meningioma (see id. at 500-501). If so, the course of treatment would render plaintiff’s action timely, as the statute of limitations would be tolled between March 1999 and September 2007.”

“Our dissenting colleague insists that the continuous treatment doctrine cannot apply, asserting that there was no evidence of regular appointments or ongoing treatment for plaintiff’s headache-related complaints. Putting aside the fact that the assertion mischaracterizes the record — in fact, plaintiff testified that once per month from January 2007 until June 2007 she complained of “extreme” headaches that were not helped by over-the-counter medication — it is a red herring, as it has no bearing on whether the record contains evidence that the continuous treatment doctrine may apply. On the contrary, the case law contains no requirement that a plaintiff have attended “regular” appointments in the sense that the appointments were scheduled for the sole purpose of treating the allegedly misdiagnosed condition. Rather, the inquiry centers on whether the treated symptoms indicated the presence of the condition that was not properly [*4]diagnosed — here, a meningioma that gave rise to plaintiff’s severe headaches and partial loss of vision, both of which Dr. Rutkovsky undertook to treat by, among other things, prescribing reading glasses (see Wilson, 112 AD3d at 500; see also Devadas v Niksarli, 120 AD3d 1000, 1006 [1st Dept 2014][“in determining whether continuous treatment exists, the focus is on whether the patient believed that further treatment was necessary, and whether he sought such treatment”], citing Rizk v Cohen, 73 NY2d 98, 104 [1989]; Simons v Bassett Health Care, 73 AD3d 1252, 1254 [3d Dept 2010]).

The dissent attempts to dismiss the record testimony of once-monthly visits over a six-month period by asserting that plaintiff gave “self-serving” deposition testimony about those visits. There is nothing “self-serving,” in a legal sense, about deposition testimony that favors the party giving it. Rather, testimony is said to be self-serving when it contradicts prior testimony — a situation that does not exist here (see e.g. Capuano v Tishman Const. Corp., 98 AD3d 848, 851 [1st Dept 2012] [an affidavit that does not contradict one’s prior deposition testimony and “provides additional details illuminating” the prior testimony is not considered self-serving]). Whether the testimony is “self-serving” in the sense that it is incredible on its face, and therefore creates no material issue of fact, is an issue for the factfinder to resolve.

Likewise, contrary to the dissent’s characterization, plaintiff’s deposition testimony does not amount to mere “[c]onclusory allegations” in any sense that that phrase is used to defeat a motion for summary judgment. Plaintiff’s deposition testimony was factual, simply reflecting her recollections of how often she visited Dr. Rutkovsky during a certain time period and what she recalled telling him at those times. Applying the word “conclusory” to such testimony is not meaningful in this context; plaintiff was not making a legal conclusion about continuing treatment, but merely testifying to her recollection of events (cf. McGahee v Kennedy, 48 NY2d 832, 834 [1979] [summary judgment not defeated by the defendant’s conclusory statements that he was coerced to sign amendment to separation agreement]). Whether this testimony is credible is a matter to be evaluated by the factfinder, not by the court on summary disposition.

In a similar vein, the dissent insists that “plaintiff does not connect these purported visits between January and June 2007 to her documented visit in September 2007, or otherwise raise an issue regarding a continuing course of treatment for headaches.” We disagree with this statement because, as noted above, plaintiff did, in fact, testify that she told Dr. Rutkovsky about her headaches during these once-monthly visits. Specifically, she testified that she was “at his office [once a month] telling him about [] headaches [that] were getting more and more extreme” such that she could not get out of bed, and were not alleviated by Ibuprofen. This testimony, read in the light most favorable to plaintiff, is quite sufficient to raise an issue of fact, which is all that the law requires at this stage (see e.g. Chestnut v Bobb-McKoy, 94 AD3d 659, 662 [1st Dept 2012]).”

Architects Are Somehow Different

Posted in Legal Malpractice Cases, Uncategorized

Sometimes flamboyant, often visionary, architects are different from the general masses.  Celebrity architects often have unique personal style, including unusual eyeglasses.  That all aside, architects are granted a higher standard of proof against them in negligence actions, as is described in New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng’g, P.C.2017 NY Slip Op 31790(U),  August 25, 2017,  Supreme Court, Kings County Docket Number: 295/2015-E,  Judge: Debra Silber.

“In or around March, 1991 , twenty-two years before the fire, defendant engineering firm was retained by Crockett Fuel Oil Co. (“Crockett”) on behalf of the prior owner of the premises to file for a permit with the New York City Department of Buildings (“DOB”) to install a new boiler. Defendant submitted , as part of the permit application, a drawing of the proposed boiler installation (“Drawing”; Exhibit D2). The drawing indicates where the new equipment was to be located in the boiler room. It also includes the specific model numbers of the equipment to be installed. It is an overhead view. It is drawn on a form clearly provided by the DOB, with extensive verbiage on the left side clearly not written by the defendant. The verbiage includes a provision that there is to be “a minimum of 18 inches clearance .. . provided around [the] boiler with 3′-0″ in front.” There is no place on the Drawing that indicates the height of the boiler room or the height of the boiler model number specified. If other drawings were filed , they were not included in the motion papers. On May 7, 1991 , the DOB issued a work permit for the installation of the boiler. In issuing the permit, the DOB stamped the Drawing as “Accepted under Directive 14 of 1975.”

On March 10, 2013 at around 5:00 P.M., approximately six months after the current owner bought the building from the prior owner, who had owned it since 1990, a fire broke out in the basement of the Premises, which caused significant damage. ”

“In support of its motion for summary judgment dismissing plaintiffs’ complaint, defendant first argues that there exists no triable issue of material fact. Defendant argues that a motion for summary judgment brought pursuant to CPLR 3212 must be analyzed under the substantial basis standard, which requires plaintiffs to demonstrate that a substantial basis in fact and law exists to believe that defendant’s conduct was the proximate cause of plaintiffs’ injuries. Defendant asserts that there is no genuine or material issue of fact regarding defendant’s lack of involvement in and responsibility for the design, installation, inspection, and servicing of the boiler. Defendant submits an affidavit of its President, Robert Perotto, who avers that defendant was retained by Crockett, who was hired by the prior owner of the Premises, solely to obtain a work permit, and that the Drawing was only to be used for the express purpose of obtaining a work permit to install a new boiler and burner. Mr. Perotto states that his firm did not install the boiler, supervise its installation or certify to the DOB that it was properly installed. Mr. Perotto also states that his firm never inspected the installation, nor did they prepare any annual inspection report for the premises. Second, defendant argues that it does not owe a duty of care to plaintiffs or their subrogors, because defendant was solely retained to obtain a work permit and was not responsible for the design, installation, inspection, or servicing of the boiler. Defendant asserts that because it did not owe any duty of care to the prior property owner or his assignees, it is not liable as a matter of law. Third , defendant argues that plaintiffs have failed to prove that defendant’s conduct was the proximate cause of the fire. ”

“The action insofar as asserted against the defendant arises under CPLR 214-d, which applies to certain actions against licensed engineers and architects. A motion to dismiss an action arising under CPLR 214-d is subjected to “heightened scrutiny” and “shall be granted unless the party responding to the motion demonstrates that a substantial basis in law exists to believe that the performance, conduct or omission complained of such licensed architect [or engineer] . .. was negligent and .. . a proximate cause of personal injury . . . complained of by the claimant” (CPLR 3211 [h]). “[A] court reviewing the sufficiency of a complaint under CPLR 3211 (h) must . .. determine whether the claim alleged is supported by such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (Castle Vil. Owners Corp. v Greater N. Y. Mut. Ins. Co., 58 AD3d 178, 183, 868 NYS2d 189 [1 st Dept 2008] [internal quotation marks omitted]). See Schmitt v Spector, 129 AD3d 1052, 1052-1053 [2nd Dept 2015); Kenny v Turner Constr. Co., 107 AD3d 412 [1st Dept 2013). The Court of Appeals has explained “[a]n interruption of the nexus between defendant’s negligence and plaintiffs injury by the act of a third party may affect defendant’s liability. An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act . . . so attenuates defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” (Kush by Marszalek v City of Buffalo, 59 NY2d 26, 33 [1983]). “If the intervening act is .. . independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).

Plaintiffs’ claims herein cannot withstand defendant’s summary judgment motion because plaintiffs fail to demonstrate that a substantial basis in fact and law exists to show that defendant’s alleged negligence, carelessness, or recklessness was the proximate cause of the March 10, 2013 fire. According to the DO B’s records, which are publicly available on the internet and which the court takes judicial notice of, the boiler was inspected approximately twenty times for the preparation and filing of the required annual boiler inspection reports between the time of its installation in 1991 and the date of the fire. In addition, the current owner had a professional inspect the premises before he purchased it. This report is EFile document 255 in the “main” action. The report is dated September 26, 2012 and states, at page 16, that the boiler was observed to be in average to fair condition, was twenty years old and would need to be replaced in approximately ten years. “