Probably not, and in most cases, no.  Ashmore v Lewis, 2012 NY Slip Op 30189(U), January 23, 2012; Supreme Court, New York County; Docket Number: 108248/11 ; Judge: Alice Schlesinger is an example of a psychologist. Similar reasoning holds true for attorneys.

"As defendant correctly argues, the cases are legion that hold that a court- appointed forensic expert, such as Dr. Cohen Lewis here, is entitled to judicial immunity from suit in connection with the work performed pursuant to court order. For example, in Bridget M. V Billick, 36 AD3d 489, 490 (1st Dept, 2007), a case directly on point, the appellate court affirmed the trial court’s dismissal of an action against a psychiatrist appointed by the court as the neutral forensic evaluator in a Family Court custody proceeding, finding that the evaluator had “judicial immunity from suit for malpractice
regarding the work he performed ... “ (citations omitted). Similarly, in Braverman v Halpern, 259 AD2d 306 (1st Dept 1999), the court found that allegedly defamatory statements made by an expert witness in a judicial proceeding involving child custody and visitation were not actionable, as the plaintiffs mental state was pertinent to a determination of the issues in the case. See also, Alvarez v Snyder, 264 AD2d 27 (1st Dept 2000), Iv denied 95 NY2d 759, cert denied sub nom Dim v Snyder, 531 US 1158 (2001); Finkelstein v. Bodek, 131 AD2d 337 (1st Dept’1987)’ app denied 70 NY2d 612  (statements made by a certified social worker cannot be the basis of suit, as the court appointed expert enjoyed immunity when acting pursuant to court order). The principle is not only firmly established in this judicial department, but it is well-recognized in the Second Department where the underlying divorce action was heard in this case. As recently as last year, the Appellate Division affirmed the trial court’s dismissal of a malpractice suit against psychologists and social workers who had been appointed as neutral experts either in the plaintiffs divorce action or in the Family Court proceeding involving custody and visitation with the children. In support of their motion to dismiss, the defendants employed by Family Psychological Services, P. C., had submitted their orders of appointment and evidence that they had acted pursuant to those orders. In affirming the dismissal of the negligence and malpractice claims, the court held: Here, the evidentiary material submitted by the defendants on their respective motions established conclusively that judicial immunity precludes the plaintiff from recovering damages for negligence or malpractice against them . Young v Campbell, 87 AD3d 692,693 (2nd Dept 2011)  lv denied 201 1 WL 61 55561
(citations omitted); see also, Horn v Reubins, 268 AD2d 461 (2nd Dept’ 2000), app dismissed 95 NY2d 886 (defendant has judicial immunity from suit regarding the work he performed as a court-appointed forensic psychiatric expert in connection with the plaintiffs child custody litigation); Colombo v Schwartz, 15 AD3d 522, 523 (2d Dept 2005)(affirming dismissal based on immunity of lawsuit against court-appointed psychiatric expert who had served in connection with the plaintiffs spousal support I it litigation ion). Public policy supports the protection afforded a court-appointed expert based on immunity from suit. Oftentimes a court needs to hear the opinions of experts to fully and fairly determine the issues raised in litigation. Judicial immunity protects judges in the  performance of their judicial functions so as to allow them to exercise independent judgment without the threat of legal reprisal, which is “critical to our judicial system.” Mosher-Simons v County of Allegany, 99 NY2d 214, 219 (2002), quoting Tarfer v State oflVew York, 68 NY2d 511, 518 (1986). “A logical extension of this premise is that ‘other neutrally positioned [individuals], regardless of title, who are delegated judicial or quasi-judicial functions should also not be shackled with the fear of civil retribution for their acts.’.” Mosher-Simons, 99 NY2d at 220, quoting Tarter, supra. Here, because Dr. Cohen Lewis was a court-appointed neutral forensic evaluator serving a quasi-judicial function, she is entitled to immunity from suit. "

In R. Brooks Assoc., Inc. v Harter Secrest & Emery LLP ; 2012 NY Slip Op 00602 ; Decided on January 31, 2012 ; Appellate Division, Fourth Department  plaintiff loses because it cannot be demonstrated that the latest work was on the same issue being sued upon.  "Pursuant to CPLR 214 (6), an action to recover damages for legal malpractice must be commenced within three years of accrual. A legal "malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court' " (Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031, 1032, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541). Here, defendant met its initial burden on the motion by submitting evidence establishing that the alleged malpractice occurred, at the latest, on August 3, 1999 and thus that the action was time-barred when commenced on May 4, 2004.

In opposition to the motion, plaintiff failed to raise a triable issue of fact whether the continuous representation doctrine applied to toll the statute of limitations (see generally Zuckerman v City of New York, 49 NY2d 557, 562). Pursuant to that doctrine, the running of the limitations period is tolled during the time that an attorney continues to represent a client on the matter that is the subject of the malpractice action because the client must be able "to repose confidence in the professional's ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered" (Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9 [internal quotation marks omitted]). The doctrine tolls the limitations period "where there is 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), and " where the continuing representation pertains specifically to [*2][that] matter' " (International Electron Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1513, quoting Shumsky v Eisenstein, 96 NY2d 164, 168; see Chicago Tit. Ins. Co. v Mazula, 47 AD3d 999, 1000).

Here, although plaintiff submitted bills from defendant for legal work performed within three years of the commencement of the action, it failed to establish that the bills were for work on the matter that was the subject of the alleged malpractice. Indeed, the evidence submitted by defendant established that the last work that it performed for plaintiff with respect to the subject of the alleged malpractice occurred in January or February 2001, and plaintiff failed to submit evidence raising a triable issue of fact whether the work performed after that time was related to the alleged malpractice. We therefore conclude that the evidence submitted by plaintiff established no "more than simply an extended general relationship between the [parties]" (Zaref v Berk & Michaels, 192 AD2d 346, 348). Such evidence is insufficient to raise a triable issue of fact whether "(1) plaintiff[] and defendant . . . were acutely aware of the need for further representation[ concerning the subject of the alleged malpractice,] i.e., they had a mutual understanding to that effect[], and (2) plaintiff[ was] under the impression that defendant . . . was actively addressing [its] legal needs" with respect to the subject of the alleged malpractice (Williamson, 9 NY3d at 10). Consequently, the doctrine of continuous representation does not apply, and Supreme Court erred in denying the motion (see Gotay v Brietbart, 12 NY3d 894; see generally Young v New York City Health & Hosps. Corp., 91 NY2d 291, 295-297). "

in Alden v Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz ("the People's Lawyer")  ; 2012 NY Slip Op 00580 ; Decided on January 31, 2012 ; Appellate Division, Fourth Department  we see one answer.  
 "Supreme Court properly granted defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) in this legal malpractice action. Accepting as true the facts set forth in the complaint and according plaintiff the benefit of all favorable inferences arising therefrom, as we must in the context of the instant motion (see generally Leon v Martinez, 84 NY2d 83, 87-88), we conclude that the complaint fails to plead a cognizable theory for legal malpractice because it does not permit the inference that any alleged negligence by defendant was a proximate cause of plaintiff's damages (see Pyne v Block & Assoc., 305 AD2d 213). The proximate cause of any damages sustained by plaintiff was not the alleged legal malpractice of defendant but, rather, the proximate cause of plaintiff's damages was either "the intervening and superseding failure" of plaintiff to retain successor counsel in a timely manner or the failure of successor counsel to commence a timely medical malpractice action on plaintiff's behalf (Pyne, 305 AD2d 213). Indeed, we note that the record establishes that defendant afforded plaintiff and her successor counsel "sufficient time and opportunity to adequately protect plaintiff's rights" (Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377; see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P.C., 82 AD3d 652; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; cf. Wilk v Lewis & Lewis, P.C., 75 AD3d 1063, 1066-1067)."

"Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendant deceived or attempted to deceive the court with a fictitious letter addressed to him from the former licensing director of the City's Taxi and Limousine Commission (TLC) that stated, inter alia, that plaintiff was under a lifetime ban on owning any licenses with the TLC (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Plaintiff further sufficiently alleged specific damages that could not have occurred in the absence of defendant's conduct (see id. at 15). The 2008 affidavit by the TLC's former licensing director offered by defendant in support of his motion fails to demonstrate conclusively that plaintiff has no cause of action (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]).

Plaintiff's breach of fiduciary duty cause of action is not duplicative of his legal malpractice cause of action, since it is premised on separate facts that support a different theory (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 58 AD3d 1, 9-10 [2008]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]. As alleged, plaintiff's breach of fiduciary duty claim arose in December 2006, when defendant commenced his litigation activities against plaintiff in the Westchester County Supreme Court action, and continued through defendant's 2007 disqualification from representing the Queens Medallion Leasing Inc. defendants, and thereafter. In contrast, plaintiff's legal malpractice claim is based upon defendant's alleged 2005 and 2006 "communications with the TLC that may have left the impression that [defendant] was still representing [plaintiff] at that time."
 

Judge Nardelli seems to have hit it on the head when he wrote "Inchoate in his complaint and the averments in support is a veiled concern that he might face a legal malpractice action for actions for which he was not responsible. Why a claim in quantum meruit against co-counsel would forestall such an action is left unsaid, but, in any event, the only issue before us with regard to the quantum meruit claim is whether Steinberg has raised any questions of fact as to Schnapp's argument that he has failed to state a cause of action.

At issue is the propriety of the motion court's dismissal of an attorney's claims under the theories of quantum meruit, as well as tortious interference with advantageous economic relationships. Both plaintiff Robert Steinberg and defendant Stanley Schnapp are attorneys admitted to practice in New York. Non-party Leon Baer Borstein also is an attorney, and was the preliminary executor of the estate of Isi Fischzang.

In the claim for tortious interference Steinberg alleges that he was fired because the "underlying client" (Borstein) had become dissatisfied with the delays in the probate of the estate, but that Schnapp fired Steinberg to shift the blame for the delays to Steinberg. Notably, Steinberg acknowledges that the "underlying client" could have requested his discharge "whimsically or capriciously or for any reason or for no reason, but the discharge would remain without cause.'" His concern that there is an intimation that his termination was "for cause" apparently provides much of the impetus for this litigation.

"[W]e are required to adjudicate [parties'] rights according to the unambiguous terms of the contract and therefore must give the words and phrases employed their plain meaning (Laba v. Carey, 29 NY2d 302, 308 [1971]). The plain language of all the written documents presented in this record evidences that Steinberg's client was the estate, and not Schnapp. Certainly, "[i]f a client exercises the right to discharge an attorney after some services are performed but prior to the completion of the services for which the fee was agreed upon, the discharged attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the completed services" (Matter of Cooperman, 83 NY2d 465, 473 [1994] [emphasis added]). In this case Steinberg has sought to recover compensation for his services from a party who did not have any obligation to compensate him - his co-counsel - with whom he was clearly not in privity. There is not even a suggestion that the estate is an undisclosed principal, in which case liability might attach to Schnapp, under time-honored principles (see e.g. Ell Dee Clothing Co. v. Marsh, 247 NY 392, 397 [1928])."
 

Breslin Realty Dev. Corp. v Shaw ; 2012 NY Slip Op 00478 ; Decided on January 24, 2012 ; Appllate Division, Second Department . 
 

"In an action to recover damages for legal malpractice, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Warshawsky, J.), entered November 20, 2009, as granted the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff to the extent of directing the plaintiffs' counsel to hold in escrow the sum of $117,120, purportedly representing the share of the proceeds of the settlement of this action claimed by Ronald Pecunies, for 30 days.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion for leave to intervene is denied in its entirety.

We agree with the plaintiffs' contention that the motion of Ronald Pecunies for leave to intervene in this action as a party plaintiff should have been denied in its entirety. By the time Pecunies filed the motion, the litigating parties had already entered into a stipulation of settlement and this action was discontinued. Further, Pecunies was aware of this action from its inception, yet chose not to participate. Under these circumstances, there was no pending action in which to intervene, and the motion should have been denied in its entirety by the Supreme Court (see CPLR 1012, 1013; Carnrike v Youngs, 70 AD3d 1146; Rectory Realty Assoc. v Town of Southampton, 151 AD2d 737; 176 E. 123rd St. Corp. v Frangen, 67 Misc 2d 281).

In any event, the relief granted by the Supreme Court, in the nature of establishing a temporary receivership, was improper because the settlement proceeds at issue here were not the subject of any action, and there was no clear evidentiary showing that the subject property was in imminent danger of irreparable loss or waste (see CPLR 6401[a]; Vardaris Tech, Inc. v Paleros Inc., 49 AD3d 631, 632; Singh v Brunswick Hosp. Ctr., 2 AD3d 433; Matter of Armienti & Brooks, 309 AD2d 659, 661; Schachner v Sikowitz, 94 AD2d 709). [*2]"

"According to the complaint, plaintiff was employed as Vice President in the Global Commercial Real Estate Group at Lehman Brothers (“Lehman”) from September 1997 until November 2004, when he was “abruptly terminated” from his position. Plaintiff alleges that he was fired for
voicing his objections to engaging in “certain illegal and or unethical business practices”in which his Lehman colleagues participated. Plaintiff claims that he was told that if he “went quietly” he would be paid his full bonus for 2004, in the amount of $290,000. Plaintiff did not receive his bonus.

Thereafter, plaintiff engaged defendant Carter Legyard & Milburn LLP (“CLM”). Defendant Janet Lockhart handled plaintiffs case for the firm. Plaintiff claims that Lockhart assured him that “a quick and favorable settlement” could be had, and, if not, she would file either an arbitration proceeding pursuant to plaintiffs “Series 7 License,” a lawsuit for wrongful termination, or seek redress for plaintiff as a “whistle blower.”

In early 2006, Lockhart advised plaintiff to appear for a deposition in an unrelated case involving Lehman and one of its clients, Laureate, and to sign a “stand still” agreement until August 2006. Lockhart apparently told plaintiff that if he cooperated, it would result in a quicker and more favorable settlement of plaintiffs claims. Lehman agreed to pay for CLM’s preparation and  representation of plaintiff at the deposition, Plaintiff stopped receiving bills from CLM entirely.
Plaintiff signed the stand still agreement and appeared for the deposition in April 2006, but CLM did not appear on his behalf. Plaintiff, later in his complaint, alludes to other representation at the deposition. Thereafter, plaintiff made efforts to get a firm response on the status of his case and settlement, but repeated calls by plaintiff and his wife were not returned. Eventually, Lockhart and other CLM partners advised plaintiff that they had nothing to report, because nothing could be done while the unrelated lawsuit involving Lehman remained unresolved. In April 2007, Lockhart encouraged plaintiff to extend the stand still agreement, which plaintiff refused to do. However, CLM and Lehman allegedly extended the agreement without plaintiff’s knowledge or consent.
CLM took no action against Lehman, and in 2008, plaintiff learned from Lehman’s counsel that Lehman. had settled the unrelated matter in the fall of 2007. In March 2008, plaintiff started calling Lockhart with increasing frequency because he was becoming concerned about the financial condition of Lehman, but his calls were not returned. Plaintiff alleges that CLM still took no action in furtherance of his claims, but Lockhart assured him that “Lehman was not in serious
danger of bankruptcy or sale.”
 

In September 2008, Lehman filed for bankruptcy, and plaintiff called Lockhart that day to seek legal guidance as to how his interests could be protected. Lockhart  advised plaintiff that, despite the bankruptcy, the claims could still be advanced because they were evidenced by the stand still agreements and the ongoing discussions with Lehman since 2004. Plaintiff heard nothing else from CLM or Lockhart, and ultimately filed a proof of claim online without assistance from CLM
on the last date that he was permitted to do so.

The complaint, in a veiled attempt to show that defendants’ negligent representation was the proximate cause of his losses, suggests plaintiff possessed proof of unethical practices, and suggests he was wrongfully terminated by Lehman. Proof of unethical practices is vaguely referred to in his allegations that he testified truthfully at a deposition regarding these practices and disclosed them. Nevertheless, the precise information plaintiff possessed for purposes of his whistle blower claim is never delineated. (compare with; Hayes v. Bello, 23 Misc.3d 534[Sup. Crt.
Richmond Cnty. 20091, where the court found that plaintiff satisfied the causation element by alleging “sufficient detailed facts regarding the circumstances and activities surrounding her termination,” including the specific alleged illegal activity, whom she reported the illegal activity to, and that such report resulted in her retaliatory termination.)
Further, the employment relationship between plaintiff and Lehman is never explained. For example, whether such relationship was subject to any written agreement. Indeed, plaintiff mentions Lehman practices when revealing that his bonus was not payable once he had left employment, but does not reveal whether his  employment and compensation was subject to an employee handbook or other agreement. He simply denies the documented reason for his termination, which was stated to be non productive "

"Petitioner CRP/Extell Parcel I, L.P. ("CRP/Extell") challenges the determinations issued by respondent, the Attorney General of the State of New York, ordering petitioner to return $16 million dollars in down payments to the purchasers of forty condominium units in a new [*2]construction on the West Side of Manhattan.

Petitioner is the developer of The Rushmore, a newly constructed luxury condominium located at 80 Riverside Boulevard. The condominium development offering plan was made in 2006 and 2007. The co-respondents are individual condominium purchasers ("purchasers") who entered into agreements with petitioner to buy condos.  CRP/Extell submitted its proposed plan to the Attorney General's Office on November 29, 2005. Thereafter, the Attorney General issued deficiency comments to the sponsor's outside counsel which is also the escrow agent in this matter, the law firm of Stroock & Stroock & Lavan LLP (hereinafter "Stroock"). The ongoing review process began, sets of revisions were submitted by petitioner's attorneys and the Attorney General reviewed and commented on such revisions.

On August 11, 2006, petitioner's plan was accepted for filing by the Attorney General's Office. CRP/Extell then began offering condominium units for sale.

Between 2006 and 2008, the forty individuals named as co-respondents in this proceeding entered into purchase agreements with petitioner. The purchase agreements incorporated by reference CRP/Extell's offering plan. The offering plan identified the commencement date for the first year of operations in the building. The projected first closing date was September 1, 2008.

In accordance with the agreements, purchasers tendered down payments to CRP/Extell. [*3]The down payments were all placed in escrow subject to 13 NYCRR section 20.3(o) in accordance with the offering plan.

The aggregate amount of the down payments paid by the purchasers is $16 million dollars. The properties are valued collectively at over $110 million dollars.

Section 20.3(o)(12) of the regulations required CRP/Extell to offer purchasers a right to rescind if the first closing in the building was delayed twelve (12) months beyond the anticipated commencement of the first year of operations. CRP/Extell was required, therefore, to offer purchasers a right to rescind if the first closing did not occur by September 1, 2009.

The offering plan contains a provision stating as follows:

It is anticipated that the First Closing will occur by the commencement date for the First Year of Condominium Operation as set forth in Schedule B which is September 1, 2008. If the First Closing does not occur by September 1, 2008, as such date may be extended by duly filed amendment to the Plan, Sponsor will amend the Plan to update the budget and to offer Purchasers the right to rescind their Agreements within fifteen (15) days after the presentation of the amendment disclosing the updated budget, and any Purchaser electing rescission will have their Deposits and any interest earned thereon returned.

It is undisputed that the offering plan was drafted by CRP/Extell's counsel. Petitioner contends that the attorney who drafted the offering plan erroneously typed an "8" (September 1, 2008) instead of a "9" (September 1, 2009) in the above provision.

There is a heavy presumption that a deliberately prepared and executed written instrument accurately reflects the true intention of the parties. To overcome this presumption and warrant a trial on a claim for reformation, the plaintiff must come forth with a high level of proof, free of contradiction or equivocation, that the instrument is not written as intended by both parties. The party seeking reformation bears the burden of proving by clear and convincing evidence that the instrument is not correct due to an error in the reduction of the agreement to writing, or that it was executed under mutual mistake or unilateral mistake coupled with fraud. This means that the plaintiff must show, in no uncertain terms, not only that mistake or fraud exists, but also exactly what the parties agreed upon, particularly if the negotiations were conducted by sophisticated, counseled people.
 

For the above reasons, the application to vacate the determination of the Attorney General's Office is denied, and the Article 78 proceeding is dismissed, and it is further
 

ORDERED that petitioner CRP/Extell Parcel I, L.P., and Stroock & Stroock & Lavan LLP, the escrow agent, are directed to release and return the down payments, together with any accumulated interest, to the individual purchasers within 30 days of receipt of this decision and order; and it is further

ORDERED that the respondent individual purchasers are awarded their costs and expenses in defending this proceeding.

InBanushi v Epstein ;2012 NY Slip Op 30123(U); ; January 11, 2012; Sup Ct, NY County; Docket Number: 402693/10; Judge: Doris Ling-Cohan

"In May, 1998, Banushi hired Epstein to litigate a case that was already in progress.  The case was based on Banushi's allegations that he had been assaulted and battered ("the assault case").  At least six (6) cases have been commenced by Banushi related to such alleged assault/battery, including his claims based upon the alleged lack of effective legal representation that he received in litigating the assault case and not including a disciplinary complaint filed against defendants which was dismissed.

Epstein proceeded to represent Banushi in the assault case.  the relationship between client and attorney did not fare well, resulting in Epstein filing a motion to withdraw as counsel, which was granted, prior to the case going to trial.

Epstein alleges that the assault case was ready for trial when he withdrew and that he believes Banushi did not retain new counsel and tried the assault case pro se. After trial, a verdict was rendered in favor of the defendants. Banushi appealed the verdict, which was affirmed and he was denied leave to appeal that decision  Court of Appeals. In 2001, Banushi brought an action for legal malpractice against Epstein in Civil Court Kings County (“the 2001 case”), which resulted in a trial and a judgment in Epstein’s favor.  In 2003, Banushi lodged a complaint against Epstein with the Disciplinary Committee, First Department which, according to Epstein, was summarily dismissed. In 2006, in the United States District Court, Eastern District of New York, Banushi! the City of New York and a New York City police officer alleging that the New York City  Police Department
(NYPD) failed to provide him with a proper report of the assault, thus ability to litigate the assault case. The court determined that the federal and state were time barred and granted summary judgment dismissing the claims.

Thus, defendants' motion to dismiss is granted and the cross motion to further amend the complaint is denied. The balance of Epstein's motion is denied, except that Banushi is enjoined from commencing any further lawsuits or making any motions, unless he is represented by counsel if unrepresented, without prior court approval and a copy of this decision shall be provide
such application (see Sibersky v Winters, 42 AD3d 402,404 [lst' Dept 2007).

"Pursuant to Judiciary Law § 475, "[w]hen an action is commenced, the attorney appearing for a party obtains a lien upon his or her client's causes of action . . . This lien attaches to any final order [*2]or settlement in the client's favor" (Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 370). "Where an attorney's representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien" (Lansky v Easow, 304 AD2d 533, 534; see Klein v Eubank, 87 NY2d 459; cf. Matter of Winston, 214 AD2d 677). Where, however, an attorney withdraws without sufficient cause, his or her lien is automatically forfeited (see Hae Sook Moon v City of New York, 255 AD2d 292; Winters v Rise Steel Erection Corp., 231 AD2d 626). Here, Freedhand was not discharged by the plaintiff, but instead voluntarily withdrew. Since Freedhand failed to establish that there was just cause for his withdrawal, the Supreme Court should have vacated that portion of the judicial hearing officer's determination that Freedhand was entitled to a fee (cf. Robinson v Friedman Mgt. Corp., 49 AD3d 436; Winters v Rise Steel Erection Corp., 231 AD2d 626). "
 

In Soussis v Lazer, Aptheker, Rosella & Yedid, P.C. ;  2012 NY Slip Op 00357 ;  Decided on January 17, 2012 ;  Appellate Division, Second Department we see one such situation.  Here, third-party defendant was not sued by plaintiff and is asked to disclose communications.

 "A waiver of the attorney-client privilege may be found where the client places the subject matter of the privileged communication in issue or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information (see Hurrell-Harring v State of New York, 75 AD3d 667, 668; 601 Realty Corp. v Conway, Farrell, Curtin & Kelly, P.C., 74 AD3d 1179, 1179; Raphael v Clune White & Nelson, 146 AD2d 762, 763; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 834, 835). Moreover, a waiver may be found where a party engages in selective disclosure, "as a party may not rely on the protection of the privilege regarding damaging communications while disclosing other self-serving communications" (Village Bd. of Vil. of Pleasantville v Rattner, 130 AD2d 654, 655).

Contrary to the contention of the defendants third-party plaintiffs, under the circumstances presented, the plaintiff did not place the subject matter of the subject e-mail communications in issue and application of the privilege will not deprive them of vital information in defense of her claims. Nor is disclosure of the subject e-mails required under the doctrine of selective disclosure (cf. Orco Bank v Proteinas Del Pacifico, 179 AD2d 390, 390; Village Bd. of Vil. [*2]of Pleasantville v Rattner, 130 AD2d at 655). Accordingly, the Supreme Court properly denied the motion of the defendants third-party plaintiffs to compel the third-party defendant to produce certain e-mail communications withheld from disclosure on the ground that they were protected by the attorney-client privilege.

 

"We find, prima facie, that the respondent is guilty of professional misconduct immediately threatening the public interest based upon his failure to cooperate with the lawful demands of the Grievance Committee for the Tenth Judicial District (hereinafter the Grievance Committee), with respect to its investigation of one complaint of professional misconduct.

On or about December 6, 2010, the Grievance Committee received a complaint against the respondent submitted by Paul Niehaus, on behalf of his client, David Goldstein. The complaint alleged that the respondent represented Mr. Goldstein in a matter entitled Goldstein v Massachusetts Mutual Insurance Company, commenced in the Supreme Court, New York County, under Index No. 113804/99. Mr. Goldstein, the plaintiff, sought, inter alia, declaratory relief that "the requirement in his disability policy that he be under a doctor's care and that monthly reports be submitted be deemed waived by defendant." By order dated May 3, 2000, the Supreme Court dismissed the complaint.

On or about February 2, 2005, the respondent commenced another action entitled Goldstein v. Massachusetts Mutual Insurance Company, in the Supreme Court, New York County, under Index No. 2515/05. The verified complaint, dated February 1, 2005, sought a declaratory judgment based, in sum and substance, on the same allegations previously alleged. By order dated August 22, 2005, the court found that the action was barred based on res judicata, as well as the applicable statute of limitations, and the matter was dismissed.

From in or about 2001 through in or about 2006, the respondent allegedly engaged in misleading and deceitful conduct by permitting his client, David Goldstein, to believe that the respondent had commenced a new action on Mr. Goldstein's behalf in 2001 (hereinafter the purported 2001 action) when, in fact, no new action had been commenced after dismissal of the first action until the commencement of the 2005 action. In response to an inquiry from David Goldstein regarding the purported 2001 action, the respondent, on or about October 29, 2004, forwarded to him copies of a purported amended summons and a purported amended verified complaint, dated November 3, 2003, and on or about January 6, 2006, forwarded to him copies of a purported summons and a purported verified complaint, dated February 12, 2001. None of those pleadings were filed. In response to another inquiry from David Goldstein regarding the purported 2001 action, the respondent, on or about May 3, 2006, forward to him copies of a purported notice of deposition and a purported verified answer, dated April 27, 2001, allegedly submitted by Michael Yoelli, of, Assail & Yoelli, LLP, on behalf of Massachusetts Mutual Insurance Company. Neither the purported notice of deposition, nor the purported verified answer, had been created, prepared or served by Michael Yoelli.

Based on the foregoing, David Goldstein commenced an action against the respondent, on or about December 20, 2006, entitled Goldstein v Gold, in the United States District Court for the Eastern District of New York, under Index No. CV-06-6707, alleging, inter alia, that the respondent had engaged in fraud and legal malpractice. In a Final Judgment by Consent dated November 4, 2010, the respondent consented to the entry of a judgment against him in the amount of $250,000.

By letter dated December 13, 2010, mailed to 5535 42nd Terrace, Vero Beach, Florida 32967 (the business address listed for the respondent with the Office of Court Administration at that time), the Grievance Committee asked the respondent to submit a written answer to the Goldstein complaint. By letter dated December 27, 2010, the respondent submitted an answer and response to a background questionaire. The answer contained another address for the respondent, to wit, P.O. Box 700148, Wabasso, Florida 32970, and the background questionnaire stated that the respondent's home address was 5535 42nd Terrace, Vero Beach, Florida 32970.

The respondent has neither opposed the Grievance Committee's motion nor submitted a any response relative thereto."

Based upon the foregoing, the motion is granted, the respondent is immediately suspended from the practice of law, pursuant to 22 NYCRR 691.4(l)(1)(i), pending further order of this Court, the Grievance Committee is authorized to institute and prosecute a disciplinary proceeding against him, and the matter is referred to a Special Referee to hear and report.

So, Henneberry v Borstein ; 2012 NY Slip Op 00235 ; Decided on January 17, 2012 ;Appellate Division, First Department provides a splendid primer in the area.  Plaintiff pro-se started an action, hired a process server, had some problems with service, started a second action, and in the end everything was dismissed.  Here is how the AD settled the issue:
 

"The unintended effect of the disposition of the first two orders appealed from was to deprive plaintiff of an opportunity to pursue her timely filed lawsuit, based entirely upon her failure to effectively complete the ministerial act of properly serving defendants within 120 days of the filing of notice. This was error.

CPLR 306-b provides, as relevant:

"Service of the summons and complaint, summons with notice, . . . shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice, . . . . If service is not made upon a defendant within the time period provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

The statute requires that a defendant challenging service move to dismiss on that ground (Daniels v King Chicken & Stuff, Inc., 35 AD3d 345 [2006]). In deciding such a motion, the express language of CPLR 306-b gives the court two options: dismiss the action without prejudice; or extend the time for service in the existing action. Here, defendants made their motions after the statute of limitations had expired. In these circumstances, the court's options were limited to [*3]either dismissing the action outright, or extending the time for plaintiff to properly effect service.
The first order appealed from dismissed the action, without prejudice to the filing of a new action, and granted plaintiff's cross motion for an extension of time to effect service. This directive was internally inconsistent, and it led plaintiff to file the 2010 action, later dismissed as untimely (Matter of Rodamis v Cretan's Assn Omonoia, 22 AD3d 859, 860 [2005] [court cannot grant CPLR 306-b extension where action has been dismissed and statute of limitations has expired]; see Sottile v Islandia Home for Adults, 278 AD2d 482, 484 [2000]). The court should have limited its ruling in the first order on appeal to granting plaintiff's cross motion for an extension of time to effect service pursuant to CPLR 306-b (see Lippett v Education Alliance, 14 AD3d 430, 431 [2005]).

CPLR 306-b authorizes an extension of time for service in two discrete situations: "upon good cause shown" or "in the interest of justice" (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-106 [2001]). The Court of Appeals has confirmed that the "good cause" and "interest of justice" prongs of the section constitute separate grounds for extensions, to be defined by separate criteria (id. at 104). The Court stated,

"Our analysis is buttressed by an examination of the legislative history behind the amendment [to CPLR 306-b]. The New York State Bar Associations Commercial and Federal Litigation Section Committee on Civil Practice Law and Rules characterized the interest of justice standard as more flexible' than the good cause standard, specifically noting that [s]ince the term "good cause" does not include conduct usually characterized as "law office failure," proposed CPLR 306-b provides for an additional and broader standard, i.e., the "interest of justice," to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant'".

(id. at 104-105 [emphasis added]). A "good cause" extension requires a showing of reasonable diligence in attempting to effect service upon a defendant. At least one Appellate Division decision has suggested that good cause is likely to be found where "the plaintiff's failure to timely serve process is a result of circumstances beyond [its] control" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 32 [2009] [noting difficulties of service with person in military or difficulties with service abroad through Hague Convention]).
Even if this case does not qualify for an extension under the "good cause" exception (see Mead v Singleman, 24 AD3d 1142, 1144 [2005]), we find that it qualifies under the "interest of justice" category. Under this prong of CPLR 306-b, the Court of Appeals has instructed that a court "may consider [plaintiff's] diligence, or lack thereof, along with any other relevant factor . . ., including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant" (Leader, 97 NY2d at 105-106).

Here, plaintiff's attempted March 2008 service, although ultimately deemed defective, was a diligent attempt by a pro se plaintiff to hire a process server to serve defendants at their law firm, within 120 days of the timely filing of a summons with notice. By the time the court ruled on the motions in the 2007 Action, the statute of limitations had expired, precluding the filing of a new action. In addition, defendants were aware of the 2007 Action and appeared to demand a complaint as early as April 2008 - they were not prejudiced by the service errors and were afforded full participation in discovery (see Spath v Zack, 36 AD3d 410, 413 [2007]). Finally, construing the pleading in the light most favorable to plaintiff, as is required on consideration of [*4]a CPLR 3211 motion to dismiss, we find that it asserts actions and omissions by defendants that support viable claims for recovery (see Leder v Spiegel, 31 AD3d 266 [2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]).

Khedouri v Equinox (73 AD3d 532 [2010]) and Shelkowitz v Rainess (57 AD3d 337 [2008]), cited by the defense in support of dismissing the action, are both distinguishable on their facts. In Khedouri, the court found that dismissal was warranted because plaintiff made no attempt to serve the defendant, a fitness corporation, within 120 days of filing the summons and complaint. In addition, this Court found no merit to the plaintiff's underlying claims, given the voluntary assumption of risks inherent in fitness training (73 AD3d at 532-533). Similarly, dismissal was granted in Shelkowitz, a personal injury action involving the accumulation of snow and ice at the defendant's building, where plaintiff made no attempt to serve the defendant within 120 days of the filing of the action, and the extension request was made 20 months after filing the complaint (57 AD2d at 337). Here, unlike both Khedouri and Shelkowitz, plaintiff attempted service within the 120-day period, defendants were aware of the action soon after the filing of the complaint, and, viewing the amended pleading in the light most favorable to plaintiff, we find it sets forth actionable claims (Spath v Zack, 36 AD3d 410 [2007], supra; Mead v Singleman, 24 AD3d 1142 [2005], supra; Lippett v Education Alliance, 14 AD3d 430 [2005], supra).

Granting plaintiff the opportunity to pursue this action is not only consistent with the "interest of justice" exception set forth in CPLR 306-b, but also with our strong interest in deciding cases on the merits where possible (see e.g. L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1 [2007]). Accordingly, given our conclusion that the 2007 Action qualified for an extension of time to effect service pursuant to CPLR 306-b, we reverse the third order appealed from and deem the complaint in the 2010 Action to be an amended complaint in the 2007 Action. "

Attorney is retained to perform two mortgage transactions, and notes that the interest rate is 17%. Usury, he wonders? He asks the borrower's attorney, who tells him not to worry, its a commercial transaction. Naturally, it all falls apart soon enough.

"Before the closing documents were finalized, the defendant Richard T. Blancato, who was the plaintiffs' attorney, observed that the 17% annual interest rate on the loans might be usurious under General Obligations Law § 5-501 and Banking Law § 14-a, which generally fix the maximum annual interest rate which may be charged for these types of transactions at 16%. He shared his concern with the borrower's counsel, who assured him that the rate was not usurious because the loans were commercial in nature. Based on this explanation, the defendant was persuaded that no usury issue existed, and never notified Striano about the potential problem.
 

Here, the defendant's reliance upon the advice of the borrower's attorney reflects a failure to exercise ordinary reasonable skill (see Shopsin v Siben & Siben, 268 AD2d 578; McCoy v Tepper, 261 AD2d 592, 593; Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511, 514). As the plaintiffs' current counsel correctly notes, even a cursory review of the relevant statutes would have revealed that the proposed loans did not fall under any usury exceptions. Additionally, the defendant's efforts to paint his actions in a favorable light are unavailing, as his recent averments directly contradict both his 2008 affirmation and the averments of Thomas Fatato, Striano's brother, who submitted an affidavit on the defendant's behalf (see Denicola v Costello, 44 AD3d 990; Telfeyan v City of New York, 40 AD3d 372, 373).

The defendant contends that Fatato ultimately was responsible for the decision to provide the loans despite the potential usury problem. Assuming, however, that Fatato acted as Striano's agent and was aware of the borrower's counsel's advice (such that Fatato's knowledge can be imputed to Striano), the defendant "may not shift to the client the legal responsibility [he] was specifically hired to undertake because of [his] superior knowledge" (Hart v Carro, Spanbock, Kaster & Cuiffo, 211 AD2d 617, 619).

Accordingly, the plaintiffs established, prima facie, that the defendant acted negligently with respect to the usury issue. Issues of fact exist, however, as to whether Striano was involved in certain decisions regarding the handling of the mortgage foreclosure actions filed against the borrower and, if so, whether those decisions constituted an intervening cause of the plaintiffs' injuries (see Eisenberger v Septimus, 44 AD3d 994, 995; Brooks v Lewin, 21 AD3d 731, 734; Selletti v Liotti, 22 AD3d 739, 740; Blank v Harry Katz, P.C., 3 AD3d 512, 513). The Supreme Court's denial of the plaintiffs' motion was, therefore, proper. "
 

Nomura sued Cadwalader for its failure "to properly advise and represent " NACC and ASC in connection with the securitization of a pool of commercial mortgages and the issuance of a legal opinion stating that the resulting trust would qualify for federal income tax purposes as a real estate mortgage investment conduit (REMIC)"  Now, summary judgment has been denied to Cadwalader.

At issue was a $ 50 million loan made to Doctor's Hospital of Hyde Park, Chicago.  "When the hospital subsequently went into bankruptcy and Nomura was sued by the trustee to force a repurchase of the loan, Nomura claims it was forced to settle the trustee's lawsuit for millions of dollars and alleges that it would not have suffered these damages but for Cadwalader's legal malpractice."

An appraisal of the hospital was performed, but the Cadwalader tax partner did not review the appraisal before signing the opinion letter.  Bankruptcy Court later determined that the hospital was insolvent on the date of the appraisal which valued it at $ 68 million.

Nomura settled cases against itself for $ 68 million and went on to sue Cadwalader.  After this latest round of motion practice, the remaining claims alleged that Cadwalader committed legal malpractice by failing to advise plaintiffs that appraisals of the collateral securing the mortgage loans had to separately value real property, and that there was a failure of due diligence.