A person comes to the office. He has had a car accident. While at the office, the law firm decides that it will not take the case, but gives it to an attorney who might be an “of counsel”, or an employee who is going off on his own, or simply someone hanging around. In any event new client pays $ 200 for the “of counsel’s” expenses, through the law firm’s credit card program, and signs a retainer agreement. Somehow, against their wishes, the law firm’s name also appears on the retainer agreement. Years of aggravation follow, along with a judgment of legal malpractice against the firm.
Tsang v Dong 2016 NY Slip Op 31575(U) August 18, 2016 Supreme Court, New York County Docket Number: 150970/2016 Judge: Carol R. Edmead is a cautionary tale. “Plaintiffs, managers of the Firm, allege that in July 2008, defendant contacted the Firm seeking an attorney to represent him in a personal injury matter. The Firm referred defendant to Michael Wiseberg (“Wiseberg”) and introduced defendant to Wiseberg on July 14, 2008 in the Firm’s oflice. Wiseberg and defendant signed a retainer agreement, and collected $200 from defendant for travel and parking expenses. Though the Firm did not practice personal injury law and did not consent to inclusion, Wiseberg added the Firm’s name to the retainer agreement. Wiseberg alone handled defendant’s matter. On two occasions, when defendant called the Firm to reach Wiscberg and was advised that the Firm was not involved in the matter, defendant came to the Firm and harassed and insulted plaintiffs. In particular, defendant stated, in front of the Firm’s clients, that the Firm was irresponsible, caused him to lose his case, and would not let him sec Wisebcrg; he also stated that he would not leave the office until he saw Wiseberg. As a result, the Firm’s clients were disturbed, which resulted in a loss of business of at least $87,000.00, as well as damage to the Firm’s reputation. ”
“Nevertheless, as defendant argues, plaintiffs’ defamation and trespass claims arc barred by resjudicata. Under New York’s transactional approach analyzing a defense based on res judicata, “[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357, 445 NYS2d 687, 429 NE2d 1158). And, as relevant herein, “res judicata bars not only those claims that were actually litigated previously, but also those which might have been raised in the former action” (Bernstein v State, 129 AD3d 135, 810 NYS3d 752 [3d Dept 2015] citing Moss v Medical Liab. Mut. Ins. Co., 224 AD2d 762, 763, 636 NYS2d 948 [ 1996] (finding that plaintiff attorney’s present claims against the State of New York, that he had a valid retaining lien on the subject funds, “stem from his previously adjudicated disbarment, for which a final judgment on the merits was rendered. As such claims could have been raised during plaintiff’s disbarment proceeding”)). Here, plaintiffs’ defamation and trespass claims stem from the same scope of legal representation that gave rise to defendant’s previous legal malpractice claim against plaintiffs. As such, plaintiffs could have raised the statements made and actions performed by defendant during the course of that same legal representation as a defense or counterclaim to the legal malpractice suit. Defamation is “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society” (Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 987 NYS2d 3 7; Foster v Churchill, 87 NY2d 744, 751, 642 NYS2d 583, 665 NE2d 153 [ 1996]). To prove a claim for defamation, a plaintiff must show: (I) a false statement that is (2) published to a third party (3) without privilege or authorization, and that ( 4) causes harm, unless the statement is one of the types of publications actionable regardless of harm (see Dillon v City of New York, 261 AD2d 34, 3 8, 704 NYS2d I [1st Dept 1999]). Defendant’s statements concerning the Firm’s mishandling of his matter also serve as a basis for defendant’s legal malpractice claim against plaintiff, meaning that the statements· falsity could have been litigated during the legal malpractice proceeding (see e.g. Af\·hari v Barer, I Misc3d 57, 769 NYS2d 687 [Sup Ct, App Term 2″d and l l 1h Jud Dist 2003] (former client, pro se, sued attorney to recover sum of money that attorney had allegedly retained as his fee while handing a real estate closing for said client, and attorney counterclaimed for libel based on defamatory letter sent to attorney and attorney’s former counsel); Williams v Varig Brazilian irlines, 169 AD2d 434, 564 NYS2d 328 (1st Dept 1991 )”
“Based on the foregoing, it is hereby ORDERED that the motion by defendant Yonghan Dong for summary judgment dismissing the complaint of the plaintiffs Bernice Tsang and Ivanka Wang as agents of Mertz, Bitelman & Associates Law Office, P.C., plus costs and disbursements. for payment of a money judgment issued against the Firm in favor of defendant in a separate matter. and an award on defendant’s counterclaims is granted to the extent that the complaint is severed and dismissed and to the extent that defendant’s counterclaim for $519.00 is severed and granted; “