You Did Well Enough, Now Go Home

Courts do not apply legal malpractice law in a vacuum.  Far more than in other areas of the law, Courts engage in finding ways to explain the attorney's conduct, or in finding explanations.  Fielding v Kupferman  2013 NY Slip Op 02008 [104 AD3d 580]  March 26, 2013  Appellate Division, First Department is no exception.  Plaintiff points out mistakes by the attorney.  The Court then tells plaintiff that he did well enough in the case, please stop pointing out other mistakes and be happy with what he got.

"Defendants established their entitlement to judgment as a matter of law in this action alleging legal malpractice. Defendants submitted evidence showing that the divorce settlement, in which plaintiff achieved his goal of retaining the parties' marital residence, was advantageous to plaintiff, and resulted in his receiving consideration that more than compensated him for the allegedly unforeseen tax consequences of liquidating his Keogh account (see e.g. Kluczka v Lecci, 63 AD3d 796, 798 [2d Dept 2009]). Defendants also submitted evidence demonstrating that the subject tax consequences were discussed with plaintiff during the course of the settlement negotiations.

In opposition, plaintiff failed to raise a triable issue of fact. His argument that if he had been properly advised on the tax consequences, he would have reached a better settlement or outcome after trial, is speculative (see Kluczka at 798). Plaintiff failed to take into account the benefits he received in the actual settlement, including buying out his wife's share of the marital residence based on an outdated appraisal that assigned a value that was significantly lower than the actual value at the time the agreement was executed. Moreover, plaintiff failed to provide proof of any ascertainable actual damages sustained as a result of the alleged negligence (see Lavanant v General Acc. Ins. Co. of Am., 212 AD2d 450 [1st Dept 1995]). [*2]

Under the circumstances presented, plaintiff's claim for disgorgement of legal fees already paid was properly dismissed (see Reisner v Litman & Litman, P.C., 95 AD3d 858 [2d Dept 2012]; compare Boglia v Greenberg, 63 AD3d 973, 976 [2d Dept 2009]). Concur—Gonzalez, P.J., Sweeny, Renwick, Manzanet-Daniels and Román, JJ. [Prior Case History: 2011 NY Slip Op 31983(U).]


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Try to Determine Why This Legal Malparctice Case Was Dismissed

Sure, the Second Department is busy, and there is a constant and steady stream of cases coming before it, 20 every day.  Nevertheless, a couple of facts in the decision might help practitioners in their everyday legal lives.

Barker v Amorini  2014 NY Slip Op 06931  Decided on October 15, 2014  Appellate Division, Second Department is an example of a decision that fails to illuminate the path.  Case is dismissed in Supreme Court on a CPLR 3211 motion, and modified by the Second Department. Why?  We have no clue.

"The defendants, among other things, moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the causes of action alleging conversion and legal malpractice. The Supreme Court, upon renewal, inter alia, granted those branches of the defendants' motion, concluding that the plaintiff was judicially estopped from asserting the cause of action alleging conversion and that, in any event, she failed to state a cause of action in that regard. The court also directed the dismissal of the cause of action alleging legal malpractice for failure to state a cause of action.

"On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996; see Leon v Martinez, 84 NY2d 83, 87). However, on a motion to dismiss pursuant to CPLR 3211(a)(7), "bare legal conclusions are not presumed to be true" (Khan v MMCA Lease, Ltd., 100 AD3d 833, 833; see Goel v Ramachandran, 111 AD3d 783, 791-792). To prevail on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Parekh v Cain, 96 AD3d 812, 815).

The Supreme Court also properly directed the dismissal of the cause of action alleging legal malpractice. To recover damages in a legal malpractice action, a plaintiff must establish "that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession' and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301; see Benishai v Epstein, 116 AD3d 726, 727). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Benishai v Epstein, 116 AD3d at 727).

Here, affording the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the complaint was insufficient to state a cause of action alleging legal malpractice. The plaintiff failed to specifically allege facts supporting a claim that, but [*2]for the defendants' alleged negligence, the plaintiff would not have incurred any damages (see Benishai v Epstein, 116 AD3d at 728; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083). Accordingly, the Supreme Court, upon renewal, properly granted that branch of the defendants' motion which was to dismiss the cause of action alleging legal malpractice, which was asserted by the plaintiff both in her individual capacity and derivatively on behalf of the LLC."

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Decision To Dismiss Unloved Legal Malpractice Case Reversed

Plaintiff hires attorneys to file a disability claim.  Claim is denied.  Plaintiff sues attorneys on the theory that they failed to file important proofs of his disability.  Attorneys move to dismiss.  Outcome?  Motion granted and then reversed on appeal.  Is this just another reflexive dismissal of an unloved legal malpractice case?

Biro v Roth  2014 NY Slip Op 06790  Decided on October 8, 2014  Appellate Division, Second Department is another example of the AD applying the rules to pre-discovery motions to dismiss legal malpractice cases.

"The plaintiff commenced this action against the defendants, alleging a single cause of action sounding in legal malpractice. The defendants represented the plaintiff in connection with an application by which he sought disability retirement benefits in connection with his employment as a corrections officer with the New York State Department of Correctional Services (now known as the New York State Department of Corrections and Community Supervision). The complaint alleged, inter alia, that the defendants failed to incorporate certain documentary evidence of his disability into his application, and that their failure to do so was the proximate cause of his failing to secure the benefits he sought. Prior to answering the complaint, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). The Supreme Court denied that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7), determining that the plaintiff stated a cause of action, but granted that branch of the motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d 923; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587; Siracusa v Sager, 105 AD3d 937). Here, in their motion to dismiss, the defendants argued that they included all relevant documentation to support the plaintiff's application for disability retirement benefits. However, the evidence submitted by the defendants, including a doctor's report stating that the plaintiff was able to return to full duty, either did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) or failed to utterly [*2]refute the plaintiff's allegations of malpractice or conclusively establish a defense as a matter of law (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713; Fontanetta v John Doe 1, 73 AD3d 78, 84-85). A party seeking relief pursuant to CPLR 3211(a)(1) on the ground that its defense is founded upon documentary evidence " has the burden of submitting documentary evidence that resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim'" (Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807, 808, quoting Mazur Bros. Realty, LLC v State of New York, 59 AD3d 401, 402; see Leon v Martinez, 84 NY2d 83, 88; Camisa v Papaleo, 93 AD3d 623; Makris v Darus-Salaam Masjid, N.Y., Inc., 91 AD3d 729). Here, the defendants failed to meet their burden. Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was to dismiss the complaint pursuant CPLR 3211(a)(1)."


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A Professional Negligence Case Falls on Professional Negligence

Attorneys suing land surveyors and then getting sued by attorneys.  It's a circular story, which discusses contribution and indemnity.  In the end defendant cannot pass off the liability to a third-party, and must answer to the plaintiff. Alva v Gaines, Gruner, Ponzini & Novick, LLP  2014 NY Slip Op 06785  Decided on October 8, 2014  Appellate Division, Second Department is the story of finger-pointing gone bad.

"The plaintiffs, Geralyn Alva and James Alva (hereinafter together the Alvas), retained Atzl, Scatassa & Zigler, Land Surveyors, P.C. (hereinafter Atzl), to perform land surveying work on a vacant lot in Tomkins Cove, New York. The work was performed in November 2005. Due to an alleged error in the work, the Alvas withheld payment. Atzl returned to the Alvas' lot on April 13, 2006, and performed additional work. Atzl did not charge the Alvas for the work performed in April 2006, but continued to bill for the November 2005 work. In March 2008, the Alvas retained the defendant third-party plaintiff Gaines, Gruner, Ponzini & Novick, LLP, to represent them in connection with a claim to recover damages for injury to property that they allegedly sustained as a result of Atzl's negligence. On or about February 5, 2009, Gaines, Gruner, Ponzini & Novick, LLP, referred the Alvas' case to the third-party defendant Robert B. Marcus, P.C.

On February 20, 2009, the Alvas, represented by the third-party defendants Robert B. Marcus, P.C., and Robert Marcus (hereinafter together the Marcus attorneys), commenced an action against Atzl to recover damages for injury to property, based on professional malpractice (hereinafter the underlying action). The complaint alleged two separate causes of action, referable to the November 2005 work and the April 2006 work, respectively. Atzl moved to dismiss the first cause of action on the ground that it was barred by the applicable three-year statute of limitations. In opposing the motion, the Marcus attorneys argued on behalf of the Alvas that the parties engaged in a continuous professional relationship, and that continuous professional services were rendered in connection with the issue that was the subject of the underlying action. In an order dated August [*2]17, 2009, the Supreme Court granted Atzl's motion to dismiss the first cause of action in the underlying action.

Thereafter, the Alvas commenced the instant action against Gaines, Gruner, Ponzini & Novick, LLP, and Ted Alan Novick (hereinafter together the GGP & N defendants) to recover damages for legal malpractice, alleging that the GGP & N defendants failed to timely commence the underlying action against Atzl, and referred the case to outside counsel after the statute of limitations had already expired on the majority of the Alvas' claims. Subsequently, the GGP & N defendants commenced a third-party action against the Marcus attorneys for contribution and common-law indemnification. The Marcus attorneys moved to dismiss the third-party complaint pursuant to CPLR 3211(a)(1) and (7). The GGP & N defendants cross-moved for leave to amend the third-party complaint. The Supreme Court granted the Marcus attorneys' motion, and denied the cross motion. We affirm.

The Supreme Court properly determined that the GGP & N defendants failed to state a cause of action against the Marcus attorneys for contribution. The third-party complaint failed to allege sufficient facts which, if true, would establish that any legal malpractice committed by the Marcus attorneys proximately caused the Alvas to sustain actual damages, thus rendering the Marcus attorneys liable to the GGP & N defendants for contribution. The GGP & N defendants allegedly allowed the statute of limitations to run on the cause of action arising from Atzl's November 2005 work before referring the case to the Marcus attorneys. The GGP & N defendants alleged that the Marcus attorneys could have cured this error by including only one cause of action in the underlying action that would have encompassed all of Atzl's visits to the subject property in November 2005 and April 2006. The GGP & N defendants further asserted that such a cause of action would have been deemed timely and, thus, would have survived a motion to dismiss in the underlying action. However, this assertion is a bare legal conclusion, which we do not deem to be true on the instant motion pursuant to CPLR 3211(a) (see Aqua NY of Sea Cliff v Buckeye Pipeline Co., L.P., 119 AD3d 829)."

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A Reflexive Dismissal Reversed

We have noted in the past that legal malpractice cases are negatively viewed.  They are dismissed, either on a CPLR 3211 basis or a CPLR 3212 basis more often than other negligence cases, and often reflexively.  Harris Beach PLLC v Eber Bros. Wine & Liq. Corp.  2014 NY Slip Op 06704 
Decided on October 3, 2014  Appellate Division, Fourth Department is one example.  Here, Supreme Court granted summary judgment to the law firm for legal fees, dismissed all of the malpractice counterclaims, only to have the 4th Department summarily reverse.

"It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied in accordance with the following Memorandum: Plaintiff, the longtime general counsel for defendant, commenced this action seeking to recover approximately $750,000 in costs, disbursements, legal fees, and interest thereon for services rendered to defendant in the defense of a tort and breach of contract action in which defendant had been sued (underlying action). The underlying action was commenced on October 5, 2006, and, at that time, defendant was insured by Illinois National Insurance Company (Illinois National) pursuant to a policy of directors, officers and private company liability insurance (Illinois National policy) effective for the period from March 31, 2006 to March 31, 2007. The coverage under the Illinois National policy was limited to claims made and reported during the period in which that policy was effective, as was the coverage afforded defendant under a policy of directors, officers, and private company liability insurance issued by National Union Fire Insurance Company of Pittsburgh, Pa. (National Union) for the period from March 31, 2008 to March 31, 2009 (National Union policy). On August 7, 2008, i.e., approximately two years after the commencement of the underlying action, plaintiff wrote to M & T Insurance Agency, from which defendant had obtained the National Union policy, and, inter alia, tendered the defense of defendant in the underlying action pursuant to what the record reflects was the National Union policy. Both Illinois National and National Union are part of the AIG group of insurers, and by letter dated September 24, 2008, a claims analyst employed by AIG Domestic Claims, Inc. rejected plaintiff's tender on the ground that it was untimely.

In deciding this issue, we must examine the terms of the Illinois National policy, which was effective at the time of the commencement of the underlying action and pursuant to which plaintiff should have promptly tendered the defense and indemnification of defendant in the underlying action. That contract provides, inter alia, that Illinois National did not assume any duty to defend defendant, but that defendant had the option of either timely tendering its defense to Illinois National or seeking an advance of defense costs from Illinois National prior to the final disposition of the claim. If Illinois National advanced defense costs, it was entitled to recoupment of those costs to the extent that defendant was not entitled to payment of the loss in question under the terms of the Illinois National policy. The Illinois National policy also contains a clause requiring notice "as soon as practicable" and either "during the Policy Period or during the Discovery Period" as a condition precedent to coverage under that agreement.

In spite of that timely notice provision, plaintiff did not tender the defense of defendant to any insurer until August 7, 2008, and it appears from the record before us that plaintiff never tendered the defense of defendant or sought an advance of defense costs for defendant under the Illinois National policy. As a result of those omissions, plaintiff never asked Illinois National to take a position on coverage for defendant under the Illinois National policy, and thus the record is silent as to how Illinois National would have responded to such a tender. Indeed, this matter presents a question of claim handling, i.e., how Illinois National would have processed a request for coverage under the Illinois National policy. Consequently, we conclude that plaintiff did not meet its initial burden on the motion for partial summary judgment (see Utica Cutlery Co., 109 AD3d at 1162; see generally Zuckerman v City of New York, 49 NY2d 557, 562). We therefore reverse the order in its entirety, deny the motion for partial summary judgment, reinstate that part of defendant's counterclaim for professional negligence based on plaintiff's alleged failure to provide defendant's insurer with timely notice of the underlying claim, and reinstate defendant's fifth and sixth affirmative defenses. We decline to address defendant's remaining contention herein."

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Using the Correct Procedure Defeats a Judiciary Law 487 Claim

In the recent past, a claim that attorney lied in motion papers filed seeking to be relieved as attorney has survived motion practice. This decision likely prodded plaintiff to bring Brady v Friedlander  2014 NY Slip Op 06677  Decided on October 2, 2014  Appellate Division, First Department.  In this situation the First Department did not intervene, nor did it reverse.  The attorney made a proper motion to withdraw, and Civil Court's decision is not reviewable on a legal malpractice claim.

"On or about September 30, 2009, defendant moved in Civil Court, New York County (Samuels, J.), to withdraw as counsel in the underlying nonpayment proceedings (see IGS Realty Co., L.P. v James Catering, Inc., 99 AD3d 528 [1st Dept 2012]). Over plaintiffs' objection, the court granted the motion. Plaintiffs did not appeal from Civil Court's order. With respect to the cause of action for a violation of Judiciary Law § 487, the instant complaint alleges that defendant provided fabricated grounds in support of his motion, to wit, a conflict with plaintiffs regarding strategy and a lack of trust in defendant's representation, in order to conceal the true reason, which was an unfounded belief that plaintiffs could or would not pay future legal bills. However, while the parties' communications as quoted in the complaint reflect that defendant was remarkably concerned with billing, which may have informed his decision to withdraw, the complaint also reflects that plaintiff Brady expressed disagreement with defendant as to strategy and questioned defendant's honesty and competency, thus providing support for defendant's stated grounds for the motion (cf. Palmieri v Biggiani, 108 AD3d 604 [2d Dept 2013]).

In granting the motion, over plaintiffs' objection, Civil Court implicitly determined that defendant had shown "just cause" to be relieved. That issue may not be re-litigated via the instant misrepresentation claim (cf. Hass & Gottlieb v Sook Hi Lee, 11 AD3d 230 [1st Dept 2004])."

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Legal Malpractice and Surrogate's Court

Estate brings action against its attorneys, who successfully move to dismiss in Surrogate's Court on the basis that the action was not "brought during the administration of an estate."  Does this doom the legal malpractice and overbilling suit?  Is an overbilling suit duplicitive of the legal malpractice claims.  The answer is "no" in both instances.

Ullmann-Schneider v Lacher & Lovell-Taylor, P.C.  2014 NY Slip Op 06665  Decided on October 2, 2014  Appellate Division, First Department  tells us that when the case is timely brought in Surrogate's Court, it may be re-commenced in Supreme Court.

"In this action arising from defendants' legal representation of plaintiff's decedent, in connection with the estate accounting proceedings of decedent's deceased mother and a trust created under her will, the motion court properly found that, to the extent the claims herein are governed by a three-year statute of limitations, this action is timely, having been commenced within six months after termination of a timely commenced proceeding in Surrogate's Court (see CPLR 205[a]). Plaintiffs' commencement of the Surrogate's Court proceeding in connection with decedent's mother's estate, based on the same series of events involved here, was timely made within three years of decedent's death. We note that the prior proceeding was dismissed on the ground that it was not brought "during the administration of an estate" (SCPA 2110), "without prejudice to renewal in the appropriate forum." Since SCPA 2110 merely served as the attempted vehicle for plaintiffs to pursue their claims, and did not create those claims, the requirement that the petition be brought during an estate's administration was not a condition precedent affecting plaintiffs' right to bring the underlying claims in Supreme Court (see Matter of Morris Invs. v Commissioner of Fin. of City of N.Y., 69 NY2d 933, 935-936 [1987]).

As the motion court found, the breach of contract claim, which asserts, inter alia, that defendants overbilled them and performed unnecessary services, is not duplicative of the legal malpractice claim. The former claim, unlike the latter claim,does not speak to the quality of defendants' work (see Cherry Hill Mkt. Corp. v Cozen O'Connor P.C., 118 AD3d 514 [1st Dept 2014]). However, the claims for breach of the implied covenant [*2]of good faith and fair dealing, breach of fiduciary duty, and unjust enrichment, which are based on the same allegations and seek the same damages as the breach of contract and legal malpractice claims should have been dismissed as duplicative (see Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600 [1st Dept 2014])."

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Mismanaged Litigation and the Loss of a 6-Family Building

As is true of many other things, this story started with mismanaged money.  The original problem was exacerbated by mismanaged litigation.  in Gordon v Barrett  2014 NY Slip Op 51431(U)
Decided on September 30, 2014  Supreme Court, Kings County  Schmidt, J. plaintiff originally had money problems. 

"Plaintiff Gloria Gordon (plaintiff [FN1] ) maintains that, in 2002, she unwittingly and under false pretenses conveyed title to her six-family house at 646 East 96th Street in Brooklyn (Block 4755, Lot 69) (the property) to a Malco entity for a fraction of its value and became Malco's tenant under a lease which contained an option for her to buy back her property at a stated price, but that Malco refused to honor the option and sold her property in Oct. 2012 to defendant 646 East 96 Street Associates, LLC (Associates). As part of this action, she sought to file a notice of pendency, dated Oct. 3, 2013, against the property. The County Clerk initially declined to accept her notice for filing because of a previously expired and vacated notice of pendency (a lapsed notice of pendency) she filed in connection with her 2004 action against Malco under index No. 19828/04 for specific performance of the sale/leaseback agreement and for a declaration that she was the true owner of the property (the prior action). On Oct. 8, 2013, the County Clerk, in accordance with an unopposed order to show cause of the same date, accepted for filing plaintiff's notice of pendency, pending a hearing on plaintiff's motion in Seq. No. 2 to deem such notice valid and effective. In addition, presently before the Court are two pre-answer motions to dismiss, one in Seq. No. 4 served by Associates, and the other in Seq. No. 3 served by plaintiff's former counsel Clover Barrett, Esq. (Barrett [FN2] ) in the prior action.

Associates' fourth and final argument for dismissal is that plaintiff's complaint fails to state a cause of action against it under CPLR 3211 (a) (7). Associates posits that it is a bona fide purchaser for value because, when it recorded its deed to the property from Malco, the notice of pendency in the prior action had already lapsed and plaintiff's sale/leaseback agreement with Malco was never recorded. Associates' position raises a threshold question of whether, at the time of its purchase of the property, it was chargeable with constructive or inquiry notice of plaintiff's competing claim by virtue of her lapsed notice of pendency.

"At common law, the doctrine of lis pendens provided that any person who purchased real property that was the subject of litigation was presumed to have constructive notice of the dispute and was bound by the judgment in the action as if he or she were a party to it" (Kolel Damsek Eliezer, Inc. v Schlesinger, 90 AD3d 851, 855 [2d Dept 2011], lv dismissed 19 NY3d 919 [2012]). Thus, a search of all court records was required under the common-law lis pendens doctrine to determine whether real property in which a purchaser sought an interest was the subject of pending litigation (id.). Because this cumbersome process of searching through court records was seen as an intolerable burden effectively restraining alienation of real property, "the common-law lis pendens doctrine was replaced in most states by statutes requiring the filing of a notice of pendency before a would-be purchaser . . . would be charged with notice of the prior interest" (Matter of Sakow, 97 NY2d 436, 440-441 [2002] [internal citation omitted]).[FN3] This reduced the harshness of the former [*4]common-law rule because the notice of pendency is now filed with the records pertaining to the real property itself, and third persons are chargeable with knowledge only of what appears in the records filed in the central registry (see Kolel Damsek Eliezer, Inc., 90 AD3d at 855-856). The primary purpose of the notice of pendency procedure set forth in CPLR article 65 is to furnish a substitute for actual notice of pending litigation (see Da Silva, 76 NY2d at 442).

On the other hand, once a notice of pendency expires, or is vacated or canceled, it is considered to be a "nullity" — a "void" that cannot be filled (see Sakow, 97 NY2d at 442).[FN4] The authorities are nearly uniform in their conclusion that a lapsed notice of pendency in a subsisting action does not impart inquiry notice to a prospective purchaser despite his or her actual knowledge of the lapsed notice of pendency (see Polish Natl. Alliance of Brooklyn, U.S.A. v White Eagle Hall Co., 98 AD2d 400, 405 [2d Dept 1983] [a lapsed notice of pendency could not affect the rights of contract vendees who acquired their interest in the property after the notice lapsed]; Walter v State Bank of Albany, 73 AD2d 406, 408 [3d Dept 1980] [an expired notice of pendency had no effect as to the parties acquiring and/or perfecting an interest in real property after its expiration]; Bankers Trust Co. of Cal., N.A. v Bok, 26 Misc 3d 1203[A], 2009 NY Slip Op 52650[U] [Sup Ct, NY County] ["A Notice of Pendency . . . only serves as constructive notice while it is valid. . . . In the case at bar, there was only one Notice of Pendency, which . . . expired long before (the property buyer) obtained title."] [internal citations omitted]; but see Schoepp v State of NY, 69 AD2d 917, 917 [3d Dept 1979] [the defendant was responsible for determining the disposition of the action in which the lis pendens was filed but later expired]).


In conclusion, Barrett's motion can be quickly disposed. However denominated in the complaint, plaintiff's claims against Barrett sound in legal malpractice and, as such, are time-barred by the three-year statute of limitations, considering that Barrett's representation of plaintiff in the prior action ended no later than Feb. 27, 2009, when Barrett was relieved by court order entered on consent of plaintiff's successor counsel (see Biberaj v Acocella, 2014 NY Slip Op 06165 [2d Dept]).[FN10] Plaintiff's claims against Barrett are also barred by the doctrine of res judicata because in a separate action under index No. 4960/09 instituted by Barrett against her for unpaid legal fees arising from Barrett's representation of her in the prior action, the Appellate Division, Second Department (at 90 AD3d 973 [2011]), upheld Barrett's default judgment against her. "

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Buck Rogers and An Account Stated

Privity, schmivity.  The Appellate Division recently decided this legal malpractice case arising out of the intellectual property case involving the comic Buck Rogers.  Does it matter whether the Trust actually hired the law firm?  No.  The Trust is liable anyway.  Can the Trust sue for legal malpractice? No.  The claims are too speculative.

Fross, Zelnick, Lehrman & Zissu, P.C. v Geer  2014 NY Slip Op 06547  Decided on September 30, 2014  Appellate Division, First Department tells us that when a bill is sent, and no objection made, that's basically the end of the inquiry.

"The Dille Family Trust (the Trust), of which defendant is trustee, owned trademarks and copyrights for "Buck Rogers." Two of the Dille family members are beneficiaries of the trust; their grandfather's syndicate had obtained the Buck Rogers trademark and copyrights. The syndicate had hired Philip Nowlan to create comic strips based on the character, and his heirs started cancellation proceedings to terminate the syndicate's trademark rights and obtain the rights for themselves. The beneficiaries of the Trust retained plaintiff law firm to handle intellectual property matters, including the cancellation action.

Contrary to the motion court's conclusion, there was a valid fee agreement between plaintiff and the Trust. The better practice would have been to send the engagement letter to the trustee, rather than only to the beneficiaries. However, the record, including email exchanges between the trustee and plaintiff, shows that the trustee was well aware of and approved of the beneficiaries' authority to act on the Trust's behalf with regard to plaintiff's retainer and representation (see Granato v Granato, 75 AD3d 434 [1st Dept 2010]). It is irrelevant that the original engagement letter was not signed by the client (see 22 NYCRR 1215.1[a]).

Defendant's timely written objection to plaintiff's invoice dated August 25, 2009, for the period ending July 31, 2009, creates triable issues of fact as to the amount due under that invoice only. Defendant's oral and undocumented objections to the remaining bills do not suffice to create triable issues as to the remaining amount owed (see Brill & Meisel v Brown, 113 AD3d 435, 437 [1st Dept 2014]; see also Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]). Moreover, the Trust made partial payments to plaintiff throughout plaintiff's representation (see [*2]Levisohn, Lerner, Berger & Langsam v Gottlieb, 309 AD2d 668 [1st Dept 2003], lv denied 1 NY3d 509 [2004]).

Regarding the legal malpractice counterclaim, assuming that plaintiff's conduct, in failing to complete a chain-of-title report or failing to resolve the underlying intellectual property disputes before withdrawing, amounts to negligence, the Trust failed to demonstrate causation. The Trust failed to show how it would have successfully opposed the underlying trademark cancellation proceeding, or would otherwise have protected its intellectual property rights, but for plaintiff's omissions (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428 [2007]; Leder v Spiegel, 31 AD3d 266 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008])."

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Continuous Representation Despite Bumps and Gaps

Town of Amherst hires attorneys to represent them in the termination of an employee. Time goes by  Things go wrong.  Attorneys are hired again (rehired?) to continue to represent the Town. Time goes by.  Attorneys are once again hired.  When the case is finally lost, the Town sues the attorneys.  Continuous representation?

Town of Amherst v Weiss  2014 NY Slip Op 06411  Decided on September 26, 2014  Appellate Division, Fourth Department  says, Yep!. 

"It is well settled that a cause of action for legal malpractice accrues on the date when the malpractice was committed, regardless of the date on which the malpractice is actually discovered (see Shumsky v Eisenstein, 96 NY2d 164, 166; Ackerman v Price Waterhouse, 84 NY2d 535, 541; Glamm v Allen, 57 NY2d 87, 94). The parties agree that the alleged malpractice was committed on June 26, 2001, the date the hearing began before the improperly appointed Hearing Officer. The statute of limitations for legal malpractice is three years (see CPLR 214 [6]) and, therefore, the statute expired on June 26, 2004 unless it was tolled. We conclude that [*2]defendants met their initial burden of establishing that the action was commenced after the statute of limitations had expired (see International Electron Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1512). "The burden then shifted to [the Town] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine" (id.; see Priola v Fallon, 117 AD3d 1489, 1489-1490; but see 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704, 705).

We conclude that the Town raised a triable issue of fact whether there were "clear indicia of an ongoing, continuous, developing, and depend[e]nt relationship between the [Town] and [defendants,] which . . . include[d] an attempt by [defendants] to rectify an alleged act of malpractice" (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507; see International Electron Devices [USA], LLC, 71 AD3d at 1512-1513). Contrary to defendants' contentions, the Town raised triable issues of fact whether the continuing representation "pertain[ed] specifically to the matter in which [defendants] committed the alleged malpractice" (Shumsky, 96 NY2d at 168; see International Electron Devices [USA], LLC, 71 AD3d at 1512-1513), and whether there was "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (McCoy v Feinman, 99 NY2d 295, 306).

The Town first hired Weiss in early 2001 to investigate the possibility of Section 75 charges against one of the Town's employees. Weiss hired Gradl to assist him. From that point on, Weiss and Gradl performed legal work on behalf of the Town related to the Section 75 proceeding. They drafted the Section 75 charges and amended charges, presented evidence at the improperly commenced Section 75 hearing, prepared the resolution of the Town Board terminating the employee, and responded to the employee's legal challenge to the termination. When it appeared that a second hearing was required, the Town Board resolved to appoint Weiss "and associates . . . to prosecute" the Section 75 charges and amended charges against the employee, i.e., to correct the legal error resulting in the need to nullify the first hearing and the initial determination terminating the employee. Defendants performed legal work on behalf of the Town by prosecuting the Section 75 charges and amended charges at a second hearing and by preparing the second resolution of the Town Board terminating the employee. When the employee challenged that termination, the Town Board resolved to retain Weiss's firm to represent the Town at a potential hearing pursuant to General Municipal Law § 50-h and "to defend the Town Board's decision" in an anticipated CPLR article 78 proceeding to be brought by the terminated employee.

Although defendants contended that their representation was not continuous, as evidenced by the fact that there were three separate and distinct actions by the Town to retain them and numerous gaps in their representation of the Town, we conclude that the Town nevertheless raised triable issues of fact concerning continuous representation. It is well established that "[a]n attorney-client relationship may exist in the absence of a formal retainer agreement" (Swalg Dev. Corp. v Gaines, 274 AD2d 385, 386; see Terio v Spodek, 63 AD3d 719, 721). Instead, such a relationship is formed by "an explicit undertaking to perform a specific task" (Terio, 63 AD2d at 721). Here, while there were three separate and distinct retainer agreements, we conclude that there are triable issues of fact whether defendants were retained for separate and distinct legal proceedings or, rather, "ongoing and developing phases of the [same] litigation" (Muller v Sturman, 79 AD2d 482, 485, citing Siegel v Kranis, 29 AD2d 477, 480-481). We cannot say as a matter of law that all of defendants' acts "were not interrelated so that representation on [the second Section 75 hearing and the subsequent CPLR article 78 proceeding were] not part of a continuing, interconnected representation" to perform the specific task of terminating a Town employee (Deep v Boies, 53 AD3d 948, 952). Inasmuch as "[a] question of fact exists on this issue, . . . summary judgment is inappropriate" (id.).

We further conclude that there are triable issues of fact whether the gaps in the legal services that defendants performed for the Town were "merely . . . period[s] absent expectations, rather than . . . period[s] when representation formally ended" (Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 2013 NY Slip Op 23468, affd 118 AD3d 581, 582). Here, as in Red Zone, the Town "immediately return[ed] to [defendants] . . . once an issue arising from [the alleged] malpractice [was] detected" (id.; see N & S Supply v Simmons, 305 AD2d 648, 649-650)"

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