What exactly is legal malpractice, and what is not is a constant theme for debate in this field. Whether the attorney’s acts were strategy, departure, negligence, or merely an exaggerated version of otherwise proper attorney conduct is often a question on a CPLR 3211 motion. Kagan Lubic Lepper Findelstein & Gold LLP v 325 Fifth Ave. Condominium 2015 NY Slip Op 1470(U)
August 6, 2015 Supreme Court, New York County Docket Number: 151878/15 Judge: Cynthia S. Kern is a case we will discuss today and on Monday.
“The relevant facts according to the complaint are as follows. On qr about February 25,
2015, Kagan Lubic filed its complaint against defendants seeking recovery of the attorney’s fees
and expenses it allegedly incurred in its representation of defendants. Thereafter, defendants filed an answer to the complaint asserting various affirmative defenses and three counterclaims for legal malpractice, violation of Judiciary Law § 487 and a declaratory judgment that plaintiffs committed legal malpractice and that plaintiff is not entitled to any legal fees for its representation of defendants. Specifically, defendants’ answer alleges as follows. Defendants hired Kagan Lubic in October 2012 to represent them as general counsel and in an action against the sponsor of 325 Fifth and certain subcontractors arising from the defective design, construction, sale, marketing and management of the condominium building located at 325 Fifth Avenue, New York, New York (the “building”), which was allegedly plagued with defects from the outset. Defendants allege that Kagan Lubic failed to take even the most basic steps to secure remedies against those responsible for the defective design and construction of the Building and that for nearly two years, Kagan Lubic “churned the file” and generated enormous legal bills.through prolonged ‘ negotiations and other pre-litigation tactics that were time consuming, costly and entirely I ineffective, including, inter alia, (i) retaining duplicative, superfluous experts which caused I defendants to incur thousands of dollars in additional fees; (ii) engaging i~ futile settlement discussions for nearly eighteen months; (iii) generating enormous legal fees by spending countless hours addressing inconsequential maintenance issues in the building which, in many ‘ instances, cost Jess to remediate than the time spent addressing them; (iv) :frustrating any progress I toward reaching a settlement with the sponsor with respect to the maintenance issues by delaying nearly four months before responding to the sponsor’s offer to remediate certain conditions; (v) routinely raising additional maintenance issues which resulted in further delay and costs; and (vi) allowing nearly two years to lapse without filing a complaint in the action. Defendants further allege that “[b]ut for Kagan Lubic’s dilatory tactics, the defects in the Building would have been remediated by now, and the impaired value of the Condominium units in the Building resulting from the design and construction defects and ongoing litigation would have been restored.”
“In the instant action, defendants’ answer sufficiently states a claim for legal malpractice.
The first counterclaim alleges that plaintiff”committed legal malpractice.by failing to exercise the
skill and ability reasonably to be expected from a duly licensed attorney and/or law firm engaged in the practice of law within the State of New York by, among other things, engaging in self serving
dilatory tactics that were ineffective and designed to impede settlement discussions and untimely resolution of the dispute in order to generate enormous legal fees”and that as a result of
said breach, defendants have been damaged. Specifically, defendants’ answer alleges that
plaintiff negligently delayed the resolution of their claims against the sponsor and subcontractors
only to increase their legal fees and that as a result, defendants have sustained damages,
including, but not limited to, enormous legal fees and increased costs to investigate and address
the defective conditions throughout the building, which include expert fees and rental fees for
safety bridges and construction equipment. Additionally, defendants allege that as a direct result
of plaintiffs willful delay of the underlying claims, the building’s defects’ have yet to be
remediated and that the building’s value and defendants’ access to credit pnancing has been
impaired. It is well-settled that allegations that an attorney unreasonably: delayed the resolution
of his client’s claims are grounds for malpractice sufficient to defeat a motion to dismiss. See
Lappin v. Greenberg, 34 A.D.3d 277, 280 (I st Dept 2006)(“the complaint sufficiently asserts that
defendants’ inordinate delay … resulted in a loss of principal attributable to defendants’ lack of
professional diligence”); see also VDR Realty Corp. v. Mintz, 167 A.D.2d 986, 986-87 (4th Dept
1990)(“[factual allegations of the complaint to the effect that defendant attorney unreasonably
delayed the prosecution of a landlord-tenant holdover proceeding and engaged in dilatory tactics,
thereby increasing the attorney’s fee and causing other consequential damages, state a cause of
action for legal malpractice.”)
Plaintiffs assertion that the first counterclaim must be dismissed on the ground that its
pre-litigation tactics were a reasonable strategic decision and thus, may not constitute a claim for malpractice, is without merit. Defendants do not allege that the decision! to pursue certain pre-litigation tactics and settlement discussions with the sponsor was per se malpractice but rather that
it was the manner in which that decision was implemented and pursued that constituted malpractice. Indeed, it is well-settled that while the attorney judgment nile protects “an
attorney’s selection of one among several reasonable courses of action” from a claim for
malpractice, the immunity provided for reasonable strategic decisions does not extend to
incompetent or bad faith implementation of that decision. See Ackerman. v. Kesselman, 100
A.D.3d 577 (2d Dept 2012); see also Pillard v. Goodman, 82 A.D.3d 5411 (I st Dept 2011 ). “