New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Why Was This Legal Malpractice Case Brought?

Posted in Uncategorized

We’re having a little trouble understanding what went wrong in the transaction, and why the legal malpractice case was brought.  It looks like the sub-sub-lessor bought the sub-lessor’s stock and then encountered trouble with the landlord.  However, that theory emerged only on appeal.  So, in Salyamov v Lyhovsky  2017 NY Slip Op 00929  Decided on February 7, 2017  Appellate Division, First Department we see the total disconnect between fact and liability.

“Plaintiff asserts a legal malpractice claim based on defendant’s alleged failure to confirm that a sublessor of premises in which plaintiff wished to operate a business had the owner’s consent to assign the sublease at issue. However, there was no assignment of the sublease; the subtenant was a corporation whose stock plaintiff purchased in the transaction at issue. Further, it is undisputed that the master lease allowed the sublessor to sublet the premises without the owner’s consent.

Plaintiff’s additional theory of liability, that defendant failed to ascertain the status of the master lease, was improperly raised for the first time in opposition to defendant’s motion for summary judgment (see Atkins v Beth Abraham Health Servs., 133 AD3d 491 [1st Dept 2015]).”


This Is The Legal Malpractice Case Often Used As An Example

Posted in Legal Malpractice Cases

Oral argument sometimes drifts to the “analogy” stage, where an example must be used in order to show the simplest type of legal malpractice case.  It is often the particular fact pattern found in Detoni v McMinkens  2017 NY Slip Op 01334  Decided on February 22, 2017  Appellate Division, Second Department.

“On November 19, 2005, the plaintiff allegedly sustained serious injuries as a result of a motor vehicle accident in Queens. She allegedly retained the defendants on December 15, 2005, to represent her in a personal injury action against the owner and operator of the motor vehicle that struck her vehicle, but the defendants failed to commence an action before the expiration of the statute of limitations. The plaintiff commenced this action, inter alia, to recover damages for legal malpractice. ”  For the legal malpractice example one need only add that she was in the rear seat, and the car was stopped at a red light.  What is possibly left for defendant to argue?

“The defendants moved for summary judgment dismissing the complaint on the ground that, even if they were negligent in failing to timely commence the underlying personal injury action, the plaintiff would not have prevailed because she did not sustain a serious injury within the meaning [*2]of Insurance Law § 5102(d) as a result of the accident. In an order dated March 5, 2014, the Supreme Court granted the defendants’ motion for summary judgment dismissing the complaint.”

This issue bedeviled Supreme Court.  First it found for the attorneys on summary judgment and then it reversed itself and found against the attorneys on summary judgment.

“Upon reargument, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. The defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Cross v Labombard, 127 AD3d 1355, 1357; Poole v State of New York, 121 AD3d 1224, 1225). Among other things, the defendants submitted the plaintiff’s deposition testimony that, after the accident, she was confined to bed for two months and she was out of work for approximately 10 months (compare Lanzarone v Goldman, 80 AD3d 667, 669, with Bacon v Bostany, 104 AD3d 625, 628). Thus, the defendants failed to establish, prima facie, that, even if they were negligent in failing to timely commence the underlying personal injury action, the plaintiff would not have prevailed on the underlying cause of action. Since the defendants failed to meet their prima burden, it is unnecessary to consider whether the plaintiff’s opposition papers were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”

Sure, Things Went Wrong…But Was It This Guy?

Posted in Legal Malpractice Cases

Superior Tech. Solutions, Inc. v Rozenholc  2017 NY Slip Op 01136 Decided on February 10, 2017 Appellate Division, First Department is an example of trying anything to fix a deadly problem.  When this happens, anyone in the general vicinity becomes a target.

From what we can glean, longtime tenant gets into a problem with the landlord, and has to try to fix that problem.  It was a violation of some part of the lease, and the solution is a Yellowstone action, which gets the tenant a stay while it fixes the violation.  Defendant attorney was retained to do the Yellowstone litigation.  Apparently he did so successfully.  Then the tenant fails to renew the lease correctly.  Is there someone available to blame?

“Defendant has established that the malpractice claim fails for multiple reasons, and plaintiffs have failed to raise any triable issues (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sabalza v Salgado, 85 AD3d 436, 437 [1st Dept 2011]). There is no support for plaintiffs’ contention that defendant had a duty to renew the lease on their behalf, or to advise them of the need to do so (see Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 9 [1st Dept 2008], lv denied 12 NY3d 715 [2009]). The record demonstrates that defendant’s representation was limited to litigating and negotiating a settlement with respect to the Yellowstone action, which defendant brought on plaintiffs’ behalf, and that the scope of his services was not transactional. Defendant was not actively representing plaintiffs at the time the lease was negotiated or when the renewal option was to be exercised.

Defendant has also demonstrated that it cannot be shown that any alleged negligence by him was the proximate cause of plaintiffs’ damages (Stolmeier v Fields, 280 AD2d 342, 343 [1st Dept 2001], lv denied 96 NY2d 714 [2001]). Plaintiff Lee’s testimony establishes that he knew that notice for the renewal had to be in writing and sent by certified or registered mail to the landlord, and his own affidavits reflect his knowledge that the lease ran until January 31, 2011 with the option to renew.

In fact, Lee had renewed a prior lease, identical to the lease at issue, years before he even retained defendant to represent him in the Yellowstone litigation.”


A City Far From the Limelight and Professional Malpractice

Posted in Legal Malpractice Cases

Plattsburgh New York is a city far away from most other places in NY.  It is at the extreme upper right corner of New York, on Lake Champlain and at the Canadian border.  Its so far away from everything else that the story in Plattsburgh Hous. Auth. v Cantwell  2017 NY Slip Op 50184(U) Decided on February 10, 2017  Supreme Court, Clinton County  Muller, J. does not really surprise.  An attorney works her way up in the Plattsburgh Housing Authority, eventually takes both the Executive Director and General Counsel positions, and works a salary over $ 160,000.  That had to put her in the top 1% of all upstate earners.  Here is the court decision:


The PHA is entitled to a judgment in its favor on its cause of action for Ms. Cantwell’s breach of her fiduciary duties as the PHA’s attorney. To succeed on its claim for breach of fiduciary duty, the PHA was required to prove: (1) the existence of a fiduciary relationship between it and Ms. Cantwell; (2) misconduct by Ms. Cantwell; and (3) damages that were directly caused by Ms. Cantwell’s misconduct (see East Schodack Fire Co., Inc. v Milkewicz, 140 AD3d 1255, 1256 [2016]; see also Fitzpatrick House III, LLC v Neighborhood Youth & Family Servs., 55 AD3d 664, 664 [2008]).

A. A Fiduciary Relationship Existed Between the PHA and Ms. Cantwell.

Attorneys stand in a fiduciary relationship to their clients (see Graubard Mollen Dannett & Horowitz v Moskovitz 86 NY2d 112, 118 [1995]). The attorney-client relationship “imposes on the attorney [t]he duty to deal fairly, honestly and with undivided loyalty . . . including maintaining confidentiality, avoiding conflicts of interest, operating competently, safeguarding client property and honoring the clients’ interests over the lawyer’s” (Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391 [2010], quoting Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9 [2008] [internal quotation marks and citations omitted]). “Any doubts [about the existence of an attorney-client relationship] should readily [be] resolved against the [attorney], absent proof of a clear and forthright statement to his [or her] clients that he [or she] was no longer their attorney and that they should obtain outside counsel before continuing any negotiations” (Howard v Murray, 43 NY2d 417, 422 [1977]).

Ms. Cantwell was first retained by the PHA as its attorney in 1997 (Trial Tr. 418:22-23). On March 1, 2003 she became an employee of the PHA and began serving as its General Counsel pursuant to the GC Agreement (Trial Tr. 413:8-11, Plaintiff’s Exhibit 2). As the PHA’s General Counsel, Ms. Cantwell worked for the PHA full time, attending PHA Board meetings and providing legal advice to both the PHA Board and the Executive Director (Trial Tr. 64:10-14, 65:18-22, 65:8-17, 237:3-24). Ms. Cantwell continued to serve as General Counsel until she was asked to resign on May 3, 2013. Therefore, at all relevant times, Ms. Cantwell had a duty to deal with the PHA fairly, honestly and with undivided loyalty.”

“Ms. Cantwell also breached her fiduciary duty to the PHA by advising the PHA that she [*19]was entitled to an increase in her salary of over $30,000. At the time the parties signed the ED Agreement, Ms. Cantwell understood that her base salary as Executive Director was $85,000 per year (Trial Tr. 469:24-25, 473:3-7, 727:1-6). Ms. Cantwell even sent an e-mail to the PHA accountant that her Executive Director salary should be reported to HUD as $85,000 (Trial Tr. 345:8-10, Plaintiff’s Exhibit 85).

Nonetheless, less than one year after she became Executive Director, Ms. Cantwell managed to increase her salary as Executive Director by over $30,000. First, Ms. Cantwell invited Ms. Etesse — the PHA accountant — to a meeting and suggested to her that she should be paid as an employee on step 11 of the PHA salary schedule for both her Executive Director and General Counsel salary rather than step two for her Executive Director salary and step four for her General Counsel salary (Trial Tr. 353:19-25, 354:1-5, 359:4-25, Plaintiff’s Exhibit 7, Plaintiff’s Exhibit 1).

The basis for this increase was the language in the “Other Benefits” section of the ED Agreement, which stated that Ms. Cantwell “should be considered to have 14 years of service with the [PHA] as of 12/30/11″ (Plaintiff’s Exhibit 1). Ms. Cantwell interpreted this language to mean that she should have started at an Executive Director salary of $98,378 (based upon the 2011 PHA salary schedule and 14 years of service) and that, by the time she met with Ms. Etesse, her salary should have been $108,807 (based upon the 2012 PHA salary schedule and 14.5 to 18.5 years of service) — rather than $87,125 (based upon the 2012 PHA salary schedule and 6 to 18 months of service). Notably, Ms. Cantwell’s salary at step eleven (14.5 to 18.5 years of service) of the 2012 PHA salary schedule was higher than what the 2011 PHA Salary Schedule provided for an Executive Director with over 18.5 years of service, the maximum salary that the Executive Director could reach in 2011 (Defendant’s Exhibit 78 p. 4). The 2012 PHA Salary Schedule set a higher maximum figure for the Executive Director because it started, in accordance with Ms. Cantwell’s ED Agreement, at a beginning salary of $85,000 effective January 1, 2012, approximately the time Ms. Cantwell became sole Executive Director (Defendant’s Exhibit 78 p. 5).”

“For the reasons set forth herein, the Court hereby awards judgment to the PHA on its causes of action for breach of fiduciary and rescission and directs that the $261,871.79 in funds paid by the PHA to Ms. Cantwell from October 1, 2011 to May 13, 2013 be returned by Ms. Cantwell forthwith, together with interest at 3% per annum from October 1, 2011 to the date of this Decision and Order.[FN6] The Court expressly declines to award attorneys’ fees to the PHA.

Ms. Cantwell’s counterclaims for breach of the ED Agreement and breach of the GC Agreement are dismissed in their entirety.

The Court has given consideration to each cause of action alleged in the complaint and, to the extent that they are not specifically addressed, each has been ruled upon in a manner not inconsistent with the findings of fact and conclusions of law herein.

The parties are directed to submit a jointly agreed upon Judgment consistent with the foregoing within fifteen (15) days of the date of service of this Decision and Order with notice of entry thereon.

The original of this Decision and Order has been filed by the Court. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with [*25]notice of entry in accordance with CPLR 5513.”


One Legal Malpractice Case…Three Lessons in Legal Malpractice

Posted in Legal Malpractice Cases

Alphas v Smith 2017 NY Slip Op 01277  Decided on February 16, 2017 Appellate Division, First Department packs a semester’s worth of lecture into one short case.

Lesson 1:  Privity in a Small Corporate Setting.  “In opposition to defendants’ motion, plaintiff’s counsel submitted an affirmation citing Good Old Days Tavern v Zwirn (259 AD2d 300 [1st Dept 1999]) and averring that plaintiff was the president and sole shareholder of the Alphas Company of New York, Inc. (Alphas NY) and that running that corporation was the business from which plaintiff derived his livelihood. Thus, contrary to defendants’ contention, plaintiff is not claiming for the first time on appeal to have derived his livelihood from Alphas NY. In light of the similarity between this case and Good Old Days, and in light of the procedural posture of this case (a CPLR 3211 motion to dismiss), plaintiff should be allowed to assert an individual malpractice claim, even though defendants represented only Alphas NY in the federal action in which they allegedly committed malpractice. However, plaintiff’s damages are limited to those he suffered individually (e.g., the loss of $1.4 million in unsecured loans that he made to Alphas NY, the losses he incurred as a result of guaranteeing the company’s debt, lost income, loss of his Perishable Agricultural Commodities Act license, a lower personal credit score, legal fees for his personal liabilities, and the cancellation of an agreement for 30% of his interest in Alphas NY), as opposed to damages suffered by Alphas NY (e.g., the $1.2 million judgment entered against it in the federal action, its bankruptcy, the liquidation of its cooperative shares in the Hunts Point Terminal Produce Cooperative Association, and the legal fees incurred by it) (see generally Griffith v Medical Quadrangle, 5 AD3d 151, 152 [1st Dept 2004]).”

Lesson 2: Breach of Contract: “While the motion court did not discuss whether the second cause of action (breach of contract and fiduciary duties) was duplicative of the first (malpractice), defendants did make this argument below, as well as on appeal. Defendants are correct.

“Unless a plaintiff alleges that an attorney defendant breached a promise to achieve a specific result, a claim for breach of contract is insufficient and duplicative of the malpractice claim” (Mamoon v Dot Net Inc., 135 AD3d 656, 658 [1st Dept 2016] [internal citations and quotation marks omitted]). As in Mamoon, “[p]laintiff does not allege that . . . defendants breached a promise to achieve a specific result” (id.).”

Lesson 3: Breach of Fiduciary Duty: “Plaintiff argued below that the fiduciary duty claim was not “predicated on the same allegations” as the malpractice claim (Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 290 AD2d 399, 400 [1st Dept 2002]) because the former alleged that defendants acted willfully and intentionally due to a conflict of interest, whereas the latter merely alleged that they were negligent. However, we have found that a breach of fiduciary duty claim was “properly dismissed” as “redundant of the legal malpractice cause of action” (Waggoner v Caruso, 68 AD3d 1, 6 [1st Dept 2009], affd 14 NY3d 874 [2010]), even though the fiduciary duty claim was [*2]based on the defendants’ conflict of interest (id.).

Plaintiff also contended below that the relief sought in the fiduciary duty claim was not “identical to that sought in the malpractice cause of action” (Nevelson, 290 AD2d at 400). However, we have dismissed a fiduciary duty claim as duplicative of a malpractice claim where it “allege[d] similar damages” (InKine Pharm. Co. v Coleman, 305 AD2d 151, 152 [1st Dept 2003] [emphasis added]). Except for damages for emotional and mental distress — which cannot be recovered on a legal malpractice claim (see Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000]; see also Dombrowski v Bulson, 19 NY3d 347, 349, 351-352 [2012]) — and punitive damages — which are “awarded only in exceptional cases” (Marinaccio v Town of Clarence, 20 NY3d 506, 511 [2013]; see also Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 13 [1st Dept 2008]) — the damages sought in the first and second causes of action are the same.”

How Might A Legal Malpractice Case Play Out Here?

Posted in Uncategorized

The New York Law Journal reported a “drastic sanction” against a medical malpractice defense firm today in Lucas v Stam  2017 NY Slip Op 01190  Decided on February 15, 2017  Appellate Division, Second Department.

“This medical malpractice action arises from ophthalmological surgery performed on September 5, 2007, on the plaintiff’s decedent by the defendant William M. Schiff, a vitreoretinal surgeon, at the Harkness Eye Institute, which is owned and operated by the defendant New York Presbyterian Hospital Columbia University Medical Center (hereinafter the Hospital). The plaintiff alleges that prior to the surgery, a surgical booker working at the Hospital gave the decedent a history and physical form to provide to his internist, the defendant Lawrence Stam, in order to obtain medical clearance for the surgery. The form, which was partially completed by the surgical booker, indicated that the surgery was going to take place under local anesthesia. Stam wrote on the form that the decedent was a “moderate risk for surgery,” and under the preprinted portion of the form stating, “Patient is in satisfactory condition for local/standby anesthesia,” Stam wrote, “yes.” The plaintiff alleges that the surgery was performed on both eyes under general anesthesia, and that the surgery lasted approximately seven hours. As a result of the surgery having been performed under general anesthesia, the decedent allegedly suffered a major stroke and other injuries.”

“We agree with the plaintiff that, under the circumstances, the Supreme Court improvidently exercised its discretion by imposing monetary sanctions upon the defendants and Martin Clearwater instead of striking the defendants’ answers.

The Supreme Court properly inferred the willful and contumacious character of the defendants’ conduct from their repeated failures over an extended period of time, without an adequate excuse, to comply with the plaintiff’s discovery demands and the court’s discovery orders (see Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d 1133, 1134; Brandenburg v County of Rockland Sewer Dist. #1, State of N.Y., 127 AD3d 680, 681; Montemurro v Memorial Sloan-[*3]Kettering Cancer Ctr., 94 AD3d 1066, 1066). This conduct included: (1) misrepresenting that the surgical booker Marcia Barnaby was no longer employed by the Hospital; (2) failing to disclose Anthony Pastor as a surgical booker; and (3) failing to timely and fully comply with the court’s order to produce an affidavit from Schiff in the form required by the court. “[P]arties, where necessary, will be held responsible for the failure of their lawyers to meet court-ordered deadlines and provide meaningful responses to discovery demands” (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 207-208; see Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.], 5 NY3d 514, 521; Kihl v Pfeffer, 94 NY2d 118, 123).”

“”The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court” (Lazar, Sanders, Thaler & Assoc., LLP v Lazar, 131 AD3d at 1133; see Wolf v Flowers, 122 AD3d 728, 728; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 209). Even so, the Appellate Division ” is vested with its own discretion and corresponding power to substitute its own discretion for that of the trial court, even in the absence of abuse'” (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 209, quoting Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 11 NY3d 843, 845). In determining the appropriate sanction to impose, we are guided by CPLR 3126, which permits courts to, among other things, “order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order” (CPLR 3126[1]), issue a preclusion order (see CPLR 3126[2]), or strike a pleading (see CPLR 3126[3]). The striking of a pleading is a drastic remedy that may only be warranted upon a clear showing that the failure to comply with discovery demands or court-ordered discovery was willful and contumacious (see Lazar, Sanders, Thaler & Assoc. Inc. v Lazar, 131 AD3d at 1133; Brandenburg v County v Rockland Sewer Dist. #1, State of N.Y., 127 AD3d at 681; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210). Although not expressly set forth as a sanction under CPLR 3126, we have held that the imposition of a monetary sanction under CPLR 3126 may be appropriate to compensate counsel or a party for the time expended and costs incurred in connection with an offending party’s failure to fully and timely comply with court-ordered disclosure (see Knoch v City of New York, 109 AD3d 459; Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 801; O’Neill v Ho, 28 AD3d 626, 627). Here, contrary to the Supreme Court’s determination, we find that the imposition of monetary sanctions was insufficient to punish the defendants and their counsel for their willful and contumacious conduct in failing to timely and fully respond to discovery demands and court orders. Accordingly, the court should have granted that branch of the plaintiff’s motion which was to strike the defendants’ answers.”

A Legal Malpractice Verdict

Posted in Uncategorized

Jury verdicts in the Legal Malpractice field are rare.  Most cases are settled, and the balance are disposed of in motion practice.  We are proud to share a New York Law Journal news article with you about this Legal Malpractice Jury Verdict from Supreme Court, Westchester County.

“A jury awarded nearly $400,000 to a Westchester County municipality that claimed its counsel for a group of civil rights cases incorrectly advised that the city would not have to pay the plaintiffs’ legal fees.

In 2004, White Plains police officers arrested three people after they asked why their friend was getting arrested. After the three were cleared of resisting arrest and obstruction charges, they sued the city in federal court, alleging false arrest and malicious prosecution

Joseph Maria, a White Plains lawyer representing the city, offered $10,000 to each plaintiff to settle the case. But the city alleged Maria made a “crucial mistake” by failing to state that the award was intended to cover all costs, including attorney fees.

The plaintiffs accepted, and Southern District Judge Robert Patterson awarded nearly $291,000 in attorney fees. After the city lost its appeal in 2012, Patterson awarded the plaintiffs’ lawyers an additional $106,000 in fees.

In 2014, the city of White Plains sued Maria and his firm, Joseph A. Maria PC. Westchester County Judge David Everett granted White Plains’ partial motion for summary judgment that the defendants were negligent when they departed from the “good and accepted” practice of law.

From there, White Plains moved to prove the “case within the case,” or that it would have won the underlying case if not for Maria’s negligence, and a jury trial was held earlier this month before Westchester state Supreme Justice Lewis Lubell.

Andrew Lavoott Bluestone, who represented the city of White Plains, said the jury found the officers would have had probable cause to arrest the three plaintiffs.

Neither Maria nor Steven Coploff, of counsel to Steinberg & Cavaliere and Maria’s attorney in the malpractice action, returned calls requesting comment.


A Rare Judiciary Law 487 Case With Some Lessons

Posted in Legal Malpractice Cases

Judiciary Law § 487 cases that survive appeal are rare; more so when it is against opposing counsel.  Here, in Kimbrook Rte. 31, L.L.C. v Bass 2017 NY Slip Op 01083 Decided on February 10, 2017 the Appellate Division, Fourth Department states two principles of JL § 487:  no need to bring the claim in the underlying case, and little or no collateral estoppel will exist.

“Memorandum: 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; Chevron Corp. v Donzinger, 871 F Supp 2d 229, 261-262; see generally Stewart v Citimortgage, Inc., 122 AD3d 721, 722). 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).

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; see Ackman v Haberer, 111 AD3d 1378, 1379). 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).”

Could This Immigration Legal Malpractice Case Be More Timely?

Posted in Legal Malpractice Cases

Immigration and travel bans are the news this week, and Trapp-White v Fountain 
2017 NY Slip Op 00948  Decided on February 7, 2017 Appellate Division, First Department illustrates that what would normally be damages in the real world are simply waived away in the legal malpractice world.  Emotional distress?  Non-pecuniary loss?  Not in this world!

So, Plaintiff cannot collect for some real and definite damages that being deported definitely bring about.

“Order, Supreme Court, New York County (Donna M. Mills, J.), entered on or about October 1, 2015, which denied defendants’ motion to dismiss the complaint, unanimously modified, on the law, to grant the motion to the extent the complaint seeks damages for emotional distress or mental anguish, and otherwise affirmed, without costs.

Plaintiff, who ultimately was granted a green card and permitted to return to the United States, inter alia alleges that defendants’ failure to file a motion to reopen for over a year caused her to be deported and denied permission to return to the United States for almost two years, which caused her to lose her job. Accepting plaintiff’s allegations as true on this motion to dismiss pursuant to CPLR 3211 they sufficiently state a legal malpractice claim (see Lapin v Greenberg, 34 AD3d 277 [1st Dept 2006]).

However plaintiff failed to state a claim for emotional distress because the damages alleged are not pecuniary in nature (see Dombrowski v Bulson, 19 NY3d 347, 351, 352 [2012]), and the pleadings fail to allege the requisite extreme and outrageous conduct (see Hyman v Schwartz, 127 AD3d 1281, 1283-1284 [3d Dept 2015]; see also Wolkstein v Morgenstern, 275 AD2d 635, 636-637 [1st Dept 2000]).”


Summary Reversal in a Legal Malpractice Case…But What Lies Below?

Posted in Uncategorized

Salyamov v Lyhovsky  2017 NY Slip Op 00929  Decided on February 7, 2017  Appellate Division, First Department is a very short, very direct reversal of summary judgment in which the AD reverses the opinion of Justice Wright, who has since been transferred from Supreme Court to Family Court.  How could there have been such a divergence over such a simple fact?

“Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered July 25, 2016, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff asserts a legal malpractice claim based on defendant’s alleged failure to confirm that a sublessor of premises in which plaintiff wished to operate a business had the owner’s consent to assign the sublease at issue. However, there was no assignment of the sublease; the subtenant was a corporation whose stock plaintiff purchased in the transaction at issue. Further, it is undisputed that the master lease allowed the sublessor to sublet the premises without the owner’s consent.

Plaintiff’s additional theory of liability, that defendant failed to ascertain the status of the master lease, was improperly raised for the first time in opposition to defendant’s motion for summary judgment (see Atkins v Beth Abraham Health Servs., 133 AD3d 491 [1st Dept 2015]).”