New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

A Summer of Golden Oldie Judicary Law 487 Cases

Posted in Uncategorized

Last week we reported on the reappearance of Dupree v. Vorhees  in the Judiciary Law § 487 pantheon.  Today, we see that Melcher v Greenberg Traurig LLP   2017 NY Slip Op 31727(U)
August 15, 2017 Supreme Court, New York County  Docket Number: 650188/2007  Judge: O. Peter Sherwood has similarly bobbed up.

Melcher has a fascinating backstory, with documents disappearing  and then reappearing, only to be accidentally burnt.  Melcher v Greenberg Traurig, LLP  2014 NY Slip Op 02213 [23 NY3d 10] . The case set the statute of limitations at 6 years.
But, onto today.  Judge O. Peter Sherwood decided several interesting evidentiary points. The most important is that no expert  testimony is necessary to show deceit to a jury. The services of two of the most preeminent ethics attorneys was dispensed with by motion.  “The testimony sought to be admitted through the “expert” testimony of Patrick Conner and Roy Simon intrudes on areas reserved to the court (see id.) and it is also likely to confuse the jury. The jury is being called upon to determine whether Leslie Corwin, an attorney, engaged in deceit or colluded with an intent to deceive the court or a party. The jury is not being asked to resolve whether or not he violated the Code of Professional Responsibility (the Code) where the applicable standards are different than those involved here. Moreover, the concept of deceit is readily understandable and does not require interpretation by experts. “

Evidence of whether an attorneys’ conduct is deceitful is also not the fodder for experts. “Although evidence concerning the role of the lawyer in the adversary system may be useful background, issues as to whether and when a lawyer has an obligation to speak are legal questions reserved to the court. Expert testimony is neither helpful nor permitted. “

In a part of the decision less universal, the court precluded damages other than the cost of attorney work in the case.  No loss of value in the underlying settlement and non-payment due to deceit was permitted. “Regarding damages, the testimony plaintiff seeks to offer as to what he might have been able to collect in the Apollo action had he been able to obtain a judgment during the time that Apollo Medical Fund was in better financial health versus the amount be obtained in settlement years later but for the deceit, is entirely speculative.

“Plaintiff cannot show that defendant’s alleged deceits were the proximate cause of any injury, except perhaps “excess legal expenses” incurred in the Apollo action (see Melcher v Greenberg Traurig LLP, 135 AD3d 547, 554 [Pt Dept 2016]; see also Zimmerman v Kohn, 125 AD3d 413 [1st Dept 2015] [cited in Melcher]). ”

Finally, the judge cast doubt on how to prove those excess legal expenses. “Defendants’ fees expert, Beth Kaufman, proposes to opine on the standards for legal fees damages in a Section 487 action but relies on the standards applicable to statutory fee shifting cases were, unlike this case, there rarely is any direct evidence of the reasonableness of the fees being sought. Further in fee shifting cases, claimants are on notice prior to commencement of the action that they will be required to show the reasonableness of the fees being requested and therefore must keep time records with a level of detail that a paying client might not require. Here, there is direct evidence of the “reasonableness” of the fees, specifically the amount the client paid for the services performed. The rate plaintiff paid his lawyer in the underlying action cannot be met by purported “expert” testimony as to what a court might award in a fee shifting case. The rate which is reasonable here was fixed by the marketplace. Although courts routinely require lawyers in fee shifting cases to detail how time claimed was spent, paying clients often do not. To require plaintiff to break out their fees separating those earned on any given day between those associated with routine prosecution of the case and excess fees devoted to meeting alleged deceitful evidence is neither feasible nor required. Accordingly, the approach taken by Kaufman is unsupported and will not be permitted. ”

 

No Expert, No Win.

Posted in Legal Malpractice Cases

Sure, you avoided motions to dismiss.  Sure, you avoided a motion for summary judgment.  Sure, you got a jury verdict.  Enough already?  Nope.  In Michael v He Gin Lee Architect Planner, PLLC  2017 NY Slip Op 06177  Decided on August 16, 2017, the  Appellate Division, Second Department looks at plaintiff’s jury verdict and reverses, then dismissing the complaint. Plaintiff did not even get a new trial.

“ORDERED that the judgment is reversed, on the law, with costs, that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law is granted, and the complaint is dismissed.

A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499; Ross v Northern Westchester Hosp. Assn, 74 AD3d 1047).

Where, as here, the causes of action submitted to the jury hinge on allegations of professional malpractice against an architect, it is incumbent upon the plaintiff to present expert testimony to support them (see 530 E. 89 Corp. v Unger, 43 NY2d 776, 777). Specifically, the plaintiff in this case alleged that the defendants committed professional malpractice by submitting defective plans to the New York City Department of Buildings (hereinafter the DOB), and by failing to diligently pursue the approval process and timely deal with objections raised by the DOB. Such questions are not within the competence of untutored laypersons to evaluate, as “common experience and observation offer little guidance” (id. at 777).

The only expert proffered by the plaintiff conceded that he “didn’t see” the defendants’ plans, and when asked, for instance, to opine on whether the defendants’ plans “would have caused a problem” regarding the roof’s ability to bear the weight of certain HVAC equipment, [*2]he demurred, answering, “No, I only work for myself.” Moreover, the expert offered no opinion regarding the defendants’ alleged delay in getting their plans approved by the DOB. Given the absence of any expert testimony that the defendants departed from accepted architectural standards of practice (see Bruno v Trus Joist a Weyerhaeuser Bus., 87 AD3d 670, 672; Kung v Zheng, 73 AD3d 862, 863), the jury lacked any rational basis for its finding that the defendants committed professional malpractice (see 530 E. 89 Corp. v Unger, 43 NY2d at 777-778; Tucker v Elimelech, 184 AD2d 636, 637-638). Accordingly, that branch of the defendants’ motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law should have been granted, and the complaint dismissed.”

 

Proofs in Summary Judgment

Posted in Legal Malpractice Basics

Schmidt v One N.Y. Plaza Co. LLC 2017 NY Slip Op 06047 Decided on August 8, 2017
Appellate Division, First Department is not a legal malpractice case, but it is a well written decision setting forth how experts battle in a summary judgment case.  Plaintiff slips/falls from a ramp while at work.  His job is to lead a security dog in examining trucks.

“Defendants moved for summary judgment dismissing the complaint, arguing that plaintiff could not establish that his accident took place as the result of any negligence on the part of defendants in the design or maintenance of the service ramp. In support of their motion, defendants submitted an architect’s report from their expert which concluded that the design and construction of the ramp did not violate the New York City Building Code or any industry-wide standard.

In opposition, plaintiff averred that its expert would testify that the service ramp was defective and that the defects were in violation of “good, proper, and accepted building and engineering standards” for ramps in equivalent buildings and were in violation of the New York City Building Code and industry standards at the time of construction.

The motion court denied defendants’ motion for summary judgment and found that they failed to establish a prima facie entitlement in that defendants’ expert affidavit only addressed the Building Code and Occupational Safety and Health Administration (OSHA) regulations, and failed to address other types of industry-wide standards that might be applicable to determine whether defendants were negligent.

On a motion for summary judgment, the moving party has the initial burden of establishing its entitlement to judgment as a matter of law with evidence sufficient to eliminate any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v Varsity Holdings, LLC, [*2]18 NY3d 335, 339 [2011]). Summary judgment should not be granted where there is any doubt as to the existence of triable issues or there are any issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Here, defendants established prima facie entitlement to summary judgment by establishing that the ramp was not designed in a negligent manner and was not in violation of any rules, or standards applicable at the time of construction.

Defendants’ expert report stated that the Building Code applicable to the premises, which was enacted in 1968 (see 1968 Building Code of City of NY [Administrative Code of City of NY] tit 27), was silent concerning the components of a loading dock, delivery truck parking, material loading and unloading, and in regard to an access ramp between the truck parking floor and the top of the loading dock. As a result, the expert concluded, the ramp did not violate the Building Code. The expert also concluded that because the service ramp was not part of the required egress from the loading dock area, those parts of the Building Code applicable to “Means of Egress” did not apply.

Based on his conclusion that the Building Code did not contain sections specifically applicable to the instant facts, defendants’ expert reviewed the standards promulgated by OSHA. He concluded, however, that no section of OSHA applied to the instant facts. He also found that National Fire Protection Agency “Life Safety Code” did not apply to the instant facts. Defendants’ expert opined that the portion of the curb of the ramp where plaintiff was alleged to have tripped was not a foreseeable pedestrian path, since it runs parallel, not across the path of pedestrians walking up and down the ramp. He noted that the use of bright yellow paint to alert pedestrians to the presence of walkway conditions was proper and in compliance with the American Society for Testing and Materials. Overall, defendants’ expert concluded that plaintiff had not cited to any valid authority in support of his contention that the ramp caused the accident, and established that the ramp did not violate any standards referenced by plaintiff’s expert in his expert exchange.

In opposition, plaintiff failed to raise a triable issue of fact as to any negligence on the part of defendants (see Hotaling v City of New York, 55 AD3d 396, 398 [1st Dept 2008], affd 12 NY3d 862 [2009]).”

School Has Good Claims, but Late, Too Late

Posted in Legal Malpractice Cases

New York has no applicable statute of limitations longer than 6 years, and this case was brought too late.  That is the holding in Epiphany Community Nursery Sch. v Levey  August 7, 2017
Supreme Court, New York County  Docket Number: 654655/2016  Judge: Shirley Werner Kornreich.  This shocking story of monies siphoned off by an unfaithful husband from the wife’s New York school is one where a discovery statute of limitations in fraud does not work.

“The Gruppo Levey Defendants are currently before this court in an unrelated action, styled Pensmore Investments, LLC v Gruppo, Levey & Co., Index No. 650002/2014 (the Pensmore Action), concerning their default on a settlement agreement. The underlying case and settlement resulted in protracted litigation over their alleged financial improprieties. See Pensmore Action, Dkt. 495 (granting summary judgment on claim to pierce corporate veils of GLC, GLH and another related entity).3 An externality of the Pensmore Action was the public revelation that Hugh and Claire, longtime business partners, were having an affair. Predictably, the aftermath was an acrimonious divorce proceeding between Hugh and his now ex-wife, nonparty Wendy Levey (Wendy),4 which recently settled. Part of the fallout is the instant dispute over Hugh’s involvement with the School, a New York not-for-profit corporation that operates a kindergarten and nursery school on Manhattan’s Upper East Side.

The School’s complaint contains well pleaded allegations of serious financial improprieties committed by Hugh. Nonetheless, while this case would have survived a motion to dismiss had it been commenced years ago, at this juncture, the claims in this action are dismissed because they are time-barred. ”

“The first scheme occurred in 2002 and 2003, more than a decade before this action was commenced in 2016. There is no applicable New York statute of limitations longer than 6 years. See CPLR 213 (claims with 6-year statute of limitations, including breach of contract, fraud, and accounting) & 214 (claims with 3-year statute of limitations, including conversion and malpractice). 11 The School recognizes this, but relies on CPLR 213(8), which provides that in “an action based upon fraud[,] the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the_ person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it” (emphasis added). It is well settled that “[t]he inquiry as to whether a plaintiff could, with reasonable diligence, have discovered the fraud turns on whether the plaintiff was possessed of knowledge of facts from which [the fraud] could be reasonably inferred.” Sargiss v Magarelli, 12 NY3d 527, 532 (2009) (emphasis added; quotation marks omitted); see Aozora Bank. Ltd. v Deutsche Bank Secs. Inc., 13 7 AD3d 685, 689 (1st Dept 2016) (“Where the circumstances are such as to suggest to a person of ordinary intelligence the probabi,Iity that he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the fraud will be imputed to him.”) (emphasis added), quoting CIFG Assurance N. Am., Inc. v Credit Suisse Secs. (USA) LLC, 128 AD3d 607, 608 (!st Dept 2015), and citing Gutkin v Siegal, 85 AD3d 687, 688 (I st Dept 2011) (“The test as to when fraud should with reasonable diligence have been discovered is an objective one.”) (emphasis added).”

 

No Judiciary Law 487 Claim Here…But Why?

Posted in Legal Malpractice Cases

Dec v BFM Realty, LLC  2017 NY Slip Op 05936  Decided on August 2, 2017 Appellate Division, Second Department.  Summary judgment is granted below, and the AD affirms.  In a short opinion, little light is shed.

“The plaintiff commenced this action alleging two causes of action. The first cause of action, alleging fraud, was asserted against the defendants BFM Realty, LLC, and Abraham Lichtenstein. The second cause of action, alleging a violation of Judiciary Law § 487, was asserted against the defendants Goldberg & Rimberg, PLLC, Israel Goldberg, and Brad Coven (hereinafter collectively the attorney defendants). The defendants moved pursuant to CPLR 3211(a)(4) to dismiss the first cause of action and for summary judgment dismissing the second cause of action. In an order dated January 8, 2016, the Supreme Court granted the motion. The plaintiff appeals.

“Pursuant to CPLR 3211(a)(4), a court has broad discretion in determining whether an action should be dismissed based upon another pending action where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same. It is not necessary that the precise legal theories presented in the first action also be presented in the second action so long as the relief is the same or substantially the same” (Swartz v Swartz, 145 AD3d 818, 822 [citations omitted]; see Whitney v Whitney, 57 NY2d 731, 732). Here, the Supreme Court providently exercised its discretion in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(4) to dismiss the first cause of action alleging fraud on the ground that there was another action pending for substantially the same relief.

The Supreme Court also properly granted that branch of the defendants’ motion which was for summary judgment dismissing the second cause of action alleging a violation of Judiciary Law § 487. “Judiciary Law § 487 exposes an attorney who [i]s guilty of any deceit or collusion . . . with intent to deceive the court or any party’ to criminal (misdemeanor) liability and treble damages, to be recovered by the injured party in a civil action” (Melcher v Greenberg Traurig, LLP, [*2]23 NY3d 10, 12-13, quoting Judiciary Law § 487[1]). Here, the defendants established, prima facie, that the attorney defendants did not commit deceit or collusion upon the court or any party (see Lawrence Ripak Co., Inc. v Gdanski, 143 AD3d 862, 863; Klein v Rieff, 135 AD3d 910, 912; Specialized Indus. Servs. Corp. v Carter, 131 AD3d 1162). In opposition, the plaintiff failed to raise a triable issue of fact.

Many, Many Years Later, the Judiciary Law 487 Claim is Lost At Trial

Posted in Legal Malpractice Cases

Judiciary Law § 487 claims do not generally get to a jury.  In Dupree v Voorhees 
2017 NY Slip Op 06062  Decided on August 9, 2017  Appellate Division, Second Department a 12 year old case, which long ago raised new issues in Judiciary Law § 487 ended with a non-jury verdict.

In Dupree,  the 487 claims were dismissed, then re-instated on re-argument after the Court of Appeals decided Amalfitano v Rosenberg12 NY3d 8.  The Appellate Division took a look at the case and reinstated the 487 claim against a partner, on a vicarious liability analysis. Now, a verdict.

“The plaintiff commenced this action, inter alia, to recover damages for violation of Judiciary Law § 487 against, among others, Karyn A. Villar and Villar’s law partner, Dorothy A. Courten (hereinafter together the defendants). The plaintiff alleged that in an underlying divorce action, in which Villar represented the plaintiff’s former husband, Villar made misrepresentations in applying for a receivership order and that she intended to deceive the court in connection with that application. The plaintiff alleged that because the defendants were partners of the same law firm, Courten was vicariously liable for the damages she sustained as a result of Villar’s actions. After a nonjury trial, the Supreme Court determined, among other things, that the plaintiff failed to establish that Villar violated Judiciary Law § 487 and that the action should be dismissed.

“In reviewing a determination made after a nonjury trial, this Court’s power to review the evidence is as broad as that of the trial court, and this Court may render a judgment it finds warranted by the facts, bearing in mind that due regard must be given to the trial court, which was in a position to assess the evidence and the credibility of the witnesses” (L’Aquila Realty, LLC v Jalyng Food Corp., 148 AD3d 1004, 1005; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Broderson v Parsons, 106 AD3d 677, 679).

Judiciary Law § 487(1) provides that “[a]n attorney or counselor who . . . [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by [*2]the penal law, he [or she] forfeits to the party injured treble damages, to be recovered in a civil action.” “A violation of Judiciary Law § 487 requires an intent to deceive” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Judiciary Law § 487[1]; Ginsburg Dev. Cos., LLC v Carbone, 134 AD3d 890, 893; Dupree v Voorhees, 102 AD3d 912, 913). Here, the evidence adduced at trial, including the testimony of Villar, supports the trial court’s determination that Villar did not act with the requisite “intent to deceive the court or any party” in applying for the receivership (Judiciary Law § 487[1]).

In any event, to succeed on a cause of action to recover damages under Judiciary Law § 487, the plaintiff must demonstrate that he or she “suffered . . . damages which were proximately caused by the deceit allegedly perpetrated on him [or her] or on the court” (O’Connor v Dime Sav. Bank of N.Y., 265 AD2d 313, 314; see Manna v Ades, 237 AD2d 264, 265; Di Prima v Di Prima, 111 AD2d 901, 902). The evidence adduced at trial also supports the trial court’s conclusion that the plaintiff failed to establish that she suffered pecuniary damages as a result of the alleged deceit. Therefore, we decline to disturb the trial court’s determination.”

 

Such A Long Time!

Posted in Legal Malpractice Cases

World wide investor signs contracts for a number of Trump condos, and then loses it all. How could this happen?  The answer is that 10 years went by while the pre-case issues simmered.  In the end, none of the attorneys will be held responsible.

Soloway v Kane Kessler, PC  2017 NY Slip Op 50992(U) Decided on August 7, 2017 Supreme Court, New York County Bluth, J. gives the details:

“This case is about a series of failed real estate transactions involving the purchase of pre-construction residential and hotel condominium units in Trump International Hotel & Tower in Toronto, Canada. Plaintiff was the buyer and Talon International, Inc. (‘Talon”) was the seller. Plaintiff entered into five separate agreements to purchase units from July 2004 to May 2006 and made down payments totaling about $1.2 million. These transactions were never finalized.

Kane represented plaintiff in connection with numerous real estate transactions in Toronto, Chicago, Las Vegas and New York City. This case focuses on only the five transactions in Toronto and Kane’s role as the notice party for three (the three hotel units) of the five transactions— this meant that Kane, as the attorney for plaintiff (buyer), was designated in the contracts to receive written notices from Talon (seller), which included notices about the closing date. Plaintiff’s attorney at Kane was defendant Erwin Lontok. Mr. Lontok worked for Kane until he resigned in June 2006 and moved to Sonn & Associates, P.C., where he worked until the end of 2009. Mr. Lontok then worked at Lontok Chance LLP until April 2013 when he left to form Ebert Lontok LLC with Steven Ebert in April 2013. Mr. Lontok represented plaintiff throughout his employment at these various entities.

On October 11, 2006, a few months after Mr. Lontok left Kane, plaintiff fired Kane and requested that he be forwarded his files immediately. At the time of the termination, the real estate transactions in Toronto were still pending and awaiting closings. Kane insists that six months after Kane was terminated, plaintiff executed an amendment to the purchase agreements regarding the closing dates for the units. Kane contends that it did not represent plaintiff for those amendments. In October 2012, years after plaintiff fired Kane and several months after plaintiff executed amendments to the sales contracts, Talon’s counsel faxed three letters to Kane which identified a new closing date for the three units. While Kane argues that the seller’s attorneys, Harris Schaeffer, LLP, failed to use the fax number listed in the purchase agreement (which Kane says was plaintiff’s fax number), Kane did not ignore the fax. Defendant Berger, a Kane attorney, contends that despite never having any previous contact with plaintiff he called plaintiff and told him about the October 2012 notices. Plaintiff told Berger to call Lontok and Berger told Lontok about the notices as well.

Plaintiff contends that because Kane and Berger accepted notices from Talon, they are estopped from claiming they did not act as plaintiff’s counsel. Plaintiff insists he never knew about these notices and that all defendants in this action failed to properly represent him.

In 2014, Talon started an action in Canada against plaintiff seeking damages and a declaration that plaintiff breached the terms of the purchase agreements and forfeited his deposits. Talon claimed plaintiff ignored multiple notices for the closing dates and failed to close on the five units. Plaintiff filed his own action against Talon in Canada as well.”

“New York’s borrowing statue, CPLR 202, provides that “An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.” “[I]n actions brought by non-New York residents, the shorter of the New York Statute of Limitations or the limitations period of the jurisdiction where the cause of action accrued will apply” (Ackerman v Price Waterhouse, 252 AD2d 179, 195, 683 NYS2d 179 [1st Dept 1998]).

Here, plaintiff, a New Jersey resident, brings a legal malpractice claim against Kane and Berger. The applicable statute of limitations for a claim of legal malpractice is three years in New York (CPLR 214[6]) and six years in New Jersey (McGrogan v Till, 167 NJ 414, 426, 771 A2d 1187 [2001]). Therefore, New York’s three-year statute of limitations period applies.

The absolute latest date Kane or Berger (on behalf of Kane) could possibly have committed legal malpractice was February 7, 2013— the latest closing date referenced in the complaint (seecomplaint at 17 [alleging that Kane received two notices from Harris Schaefer on December 20, 2012 that closings for four separate units would occur on February 7, 2013]). Taking these facts as true, as the Court must on a motion to dismiss, this action was still commenced more than three years later – in October 2016. Therefore, this action is time barred against Kane and Berger.

Plaintiff’s reliance on a theory of a continuing duty of representation does not compel a different result. Plaintiff allegedly suffered damages because he was unaware of these notices and lost his down payments when he ignored the closing dates. That means the cause of action accrued at those closing dates— assuming arguendo that Kane and Berger had some continuous duty to represent plaintiff after plaintiff fired Kane in October 2006.”

Legal Malpractice and Patent Law

Posted in Legal Malpractice Cases

There are certain areas of the law which are reserved to the federal courts.  These areas of law arise because the relevant law is found in federal statutes, or because the area which was previously spread across both state and federal statute or common law has become preempted by later federal statutes or case law.  Patents and trademarks exist because of protections granted by the US Constitution.  These and other federal areas are known as “federal questions.”  Generally speaking litigation over patents must take place in US District Court, not in state courts.

A legal malpractice case concerning patents may be heard by state court because it is not a direct “federal question.” Economic Alchemy LLC v Byrne Poh LLP  2017 NY Slip Op 31640(U)
August 4, 2017  Supreme Court, New York County  Docket Number: 653632/2015  Judge: Manuel J. Mendez is an example.

“On March 31, 2016 Plaintiff Economic Alchemy LLC (“EA”) commenced this action against Defendants alleging that the Defendants- who, as a law firm, represented EA in certain patent applications before the United States Patent and Trademark Office (“USPTO”) beginning on October 11, 2012- were liable for damages because of legal malpractice and breach of contract. EA was formed in 2011 to employ social media and other real time data to quantify economic expectations and to forecast the United States economy. EA alleges that Defendants committed numerous errors in the process of filing five (5) separate “placeholder claim” patents created by EA and failing to amend them at a later date. Allegedly, this has caused substantial impairment to the value of EA’s patent portfolio and caused EA significant damages to mitigate the potential losses. The patents, if granted, would be breakthrough technology that would help track the United States economy in real-time and be a highly attractive software for market speculators.”

“The Defendants have not stated a basis for dismissal of the legal malpractice causes of action under CPLR §3211 [a][7]. To dismiss a complaint for failure to state a cause of action there can be no legally cognizable theory that could be drawn from the complaint. The test of the sufficiency of a complaint is whether liberally construed, it states in some recognizable form, a cause of action known to the law (Union Brokerage, Inc. v Dover Insurance Company, 97 AD2d 732, 468 NYS2d 885 [1st Dept. 1983)). The court must accept as true the facts alleged in the complaint as well as all reasonable inferences that may be extracted from those facts (Amaro v Gani Realty Corp., 60 AD3d 491, 876 NYS2d 1 [1st Dept. 2009)). The court is not permitted to assess the merits of the complaint or any of its factual allegations, but may only determine if, assuming the truth of the facts alleged, the complaint states the elements of a legally cognizable cause of action (Skillgames, LLC v Brody, 1AD3d247, 767 NYS2d 418 [1st Dept. 2003)). Deficiencies in the complaint may be remedied by affidavits submitted by the plaintiff (Amaro, supra).

“Recovery for professional malpractice against an attorney requires proof of three elements: (1) attorney negligence; (2) the negligence was the ‘proximate cause’ of the actual loss sustained; and (3) quantifiable damages (Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134, 960 NYS2d 388 [1st Dept. 2013)). It requires the plaintiff to establish that counsel failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that ‘but for’ the attorney’s negligence the plaintiff would have prevailed in the matter or would have avoided damages (Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 865 N.Y.S.2d 14, 15 [1st Dept. 2008)).

The Complaint sufficiently pleads attorney negligence. Plaintiff alleges that the Defendants “fail[ed] to provide competent representation to EA, repeatedly miss[ed] US PTO deadlines, [lied] about the status of patent applications and provid[ed] erroneous information” (Complaint). Importantly, Plaintiff plead that Defendants “filed ‘placeholder’ patents that were supposed to be used temporarily to meet the deadline, but never filing the legitimate claims” to amend them as they promised (id).

This court has jurisdiction to entertain lawsuits regarding contracts relating to patents regardless if the validity of the patent may somehow be involved (Am. Harley Corp. v Irvin Indus., Inc., 27 NY2d 168, 263 NE2d 552, 315 NYS2d 129 [1970)). It is not for this court to determine whether Plaintiff’s software is currently patentable under recent Supreme Court decisions and therefore, Plaintiff sufficiently plead that Defendants’ negligence was the “proximate cause” of its damages. Plaintiff alleges that “[h)ad Byrne Poh not committed malpractice, upon information and belief, EA would have received patent protection for all five patents by March of 2014” (id). “

A Second Bite of the Apple is Permitted…But not a Third

Posted in Legal Malpractice Cases

Yesterday, we reviewed the first go-round in Mrs. Weinberg’s litigation to undo the sale of two buildings, one of which was her family home for the past 50 years.  Today, in Weinberg v Kaminsky 2017 NY Slip Op 31628(U)  August 4, 2017  Supreme Court, New York County
Docket Number: 150869/2017 Judge: Manuel J. Mendez, we see that this attempt will fail as well.  Mrs. Weinberg is no longer lucid, and cannot make out fraud allegations in the case.

“Plaintiff is an elderly widow who allegedly suffers from Alzheimer’s disease. On May 10, 2013 Plaintiff sold two buildings including the “family home” she has resided in for the past fifty (50) years. Plaintiff commenced an action in Supreme Court, New York County, under Index No. 652273/2013 approximately one month after the sale of the properties. Plaintiff asserted causes of action for rescission and to set aside the sale and deed due to fraud, conversion, unjust enrichment and legal malpractice (“First Action”). The First Action was dismissed in the early stages of litigation and Plaintiff appealed. On September 1, 2016 the Appellate Division, despite concerns over Plaintiff’s representation, affirmed the dismissal finding that the complaint was “bare bones” and failed to allege any “material misrepresentation,” as required on claims of fraud and undue influence, or “proximate cause” needed for the legal malpractice claims (Weinberg v Sultan, 142 AD3d 767, 37 NYS3d 13 [1st Dept. 2016]). ”

“To plead a cause of action for fraud, a party must allege the elements of representation of a material existing fact, falsity, scienter, justifiable reliance and damages (Bramex Assocs., Inc. v CBI Agencies, Ltd, 149 AD2d 383, 540 NYS2d 243 [1st Dept. 1989]). Each of these essential elements must be supported by factual allegations sufficient to satisfy CPLR §3016[b], which requires that the circumstances constituting the wrong shall be stated in detail. CPLR §3016[b] imposes a more stringent standard of pleading than the generally applicable ‘notice of the transaction’ rule of CPLR §3013, and complaints based on fraud which fail in whole or in part to meet this special test of factual pleading will be dismissed (Megaris Furs v Gimbel Bros., 172 AD2d 209, 568 NYS2d 581 [1st Dept. 1991]). Actual knowledge of the fraud may be generally stated (Stanfield Offshore Leveraged Assets, Ltd. v Metro. Life Ins. Co., 64 AD3d 472, 883 NYS2d 486 [1st Dept. 2009]). However, statements made in pleadings upon information and belief are not sufficient to establish the necessary quantum of proof to sustain allegations of fraud (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 23 NYS3d 173 [1st Dept. 2015]). ”

“The court is constrained by the law in dismissing this case against the Moving Defendants. Had Ms. Weinberg been lucid, she may have been able to allege facts sufficient to state a viable claim. However, by Plaintiff’s own account she is not and her Verified Complaint against Moving Defendants alleged on “information and belief” must be dismissed. “

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