Here is the retainer language:  "While I seek to avoid any disputes concerning the payment of our fee, in the event such a dispute does arise, you have the right, at your election, to seek arbitration, the results of which are binding on both parties. I shall advise you in writing by certified mail that you have 30 days from receipt of such notice in which to elect to resolve the dispute by arbitration, and I shall enclose a copy of the arbitration rules and a form for requesting arbitration. If no action is pending and if you do not timely enforce your rights to enter into fee arbitration, I may commence legal proceedings against you to recover any unpaid fee "

Here is how the First Department interpreted this language:

"Because we do not believe that the parties' retainer agreements may be interpreted without reference to the matrimonial rules in effect at the time they were entered, which governed the attorney-client relationship in domestic relations matters with respect to fee disputes and arbitration, we reverse the grant of summary judgment in defendant's favor and reinstate the complaint. A contrary result would do violence to the very rules we endeavor to enforce and penalize an attorney who complied in all respects with the matrimonial rules in effect at the time each retainer agreement was drafted and executed.

While these retainer agreements evidence a clear intent to give defendant the right to binding arbitration of fee disputes at her option, to be governed by arbitration rules to be provided by plaintiff, material terms are missing in that they do not specify what those rules are or identify the forum for the arbitration. However, there is no requirement that an agreement to arbitrate be encompassed in "a single comprehensive document" (5 NY Jur 2d, Arbitration and Award § 17, at 45-46; see also American States Ins. Co. v Sorrell, 258 AD2d 782, 783 [1999]), and where it is clear from the language of an agreement that the parties intended to be bound and there exists an objective method for supplying a missing term, the court should endeavor to hold the parties to their bargain (166 Mamaroneck Ave., 78 NY2d at 91; see also Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 483 [1989] cert denied 498 US 816 [1990] [before rejecting an agreement as indefinite, a court must be satisfied that the agreement cannot be rendered reasonably certain by reference to an extrinsic standard that makes its meaning clear]; Marshall Granger & Co., CPA's, P.C. v Sanossian & Sardis, LLP, 15 AD3d 631, 632 [2005]). "

For reasons unstated [bad locations? no houses actually available?] some of the members sue the law firm for fraud and escrow violations. "Plaintiffs are former founding members of nonparty Havens, Inc. (Havens), a resort destination club in the business of acquiring vacation properties to be used by the club members. Funding for these property acquisitions was to be generated principally through the financial contributions of the founding members. To become founding members, plaintiffs were required to sign a membership agreement, and to pay $150,000 in membership dues. A portion of the membership dues was to be held as a deposit in escrow. Defendant Katten Muchin Rosenman LLP, sued here as Katten Muchin Zavis & Roseman LLP (Katten), acted as escrow agent for the escrow account. In 2006, Havens failed as a going concern, and is now apparently without funds to pay damages suffered by plaintiffs. Plaintiffs then brought this action against Katten seeking return of their deposits, and alleging wrongful release of escrowed funds and furtherance of fraud by the club's sponsors. Katten now moves for summary judgment dismissing the amended complaint1 on the ground that it fails to state a cause of action, and is contradicted by clear and unambiguous documentary evidence.

For the reasons set forth below, Katten's motion is granted. "

"absolutely secured were not collateral to the Membership Documents (see e.g. Martian Entertainment , LLC v. Harris, 12 Misc 3d 1190[A], * 5 [representations underlying fraudulent inducement claim must be "collateral to the contract"]). To the contrary, the degree of security backing the Deposits is expressly provided by the Certificates (see Certificate, ¶1 [the membership deposits are subject to refund 30 years from the date of the Certificate and "pursuant to and subject to the terms and conditions of the Membership Agreement and the Membership Plan]"; id., ¶2 [the refund right "is backed by and subject to the availability of the assets of (Havens)"]). Indeed, it is plaintiffs' own position that each of the Membership Documents "discusses Deposits and their use and repayment . . . and thereby implicates use of an escrow" (Pls Facts, ¶¶2, 4, 6). An issue "central" to a contract cannot be construed as collateral to that contract (PSI Intl., Inc. v. Ottimo, 272 AD2d 279 [1st Dept 2000]).

Moreover, even fraudulent inducement requires "misrepresentations of present Facts (rather than merely of future intent)" (Martian Entertainment, LLC v. Harris, 12 Misc 3d 1190[A], * 5). Plaintiffs allege that Havens promised that "deposits would be handled in a specified way," that they "would be held in escrow . . . for the protection and benefit of the Founding Members," and that "[Founding Members] would be protected by the continuing existence of cash on deposit or real estate available to fund repayment if the venture failed" (Opp Br., at 24, 25 [emphasis added]; Egnotovich Aff., ¶6 [emphasis added]; see also Loeb Aff., ¶¶4-5). To the extent, if any, that these representations made by Havens are untrue, they are broken promises, and not fraudulent statements of fact (see e.g. Morgan, Lewis & Bockius LLP v. IBuyDigitial.com, Inc., 14 Misc 3d 1224[A], 2007 NY Slip Op 50149[U], *7 [Sup Ct, NY County 2007] [dismissing counterclaim that plaintiff "fraudulently induced (defendant) into entering the engagement letter by stating that (plaintiff) would be personally involved in handling the IPO, that the fees would be capped at $425,000, that the IPO would be consummated by March 2005 and that the legal fees charged would be limited to work on the IPO"] [emphasis added]; Ullmann v. Norma Kamali, Inc., 207 AD2d 691, 692-693 [1st Dept 1994] ["cause of action for fraud does not arise" based on "failure to perform promises of future acts"] [citation omitted]).

Consequently, the aiding and abetting fraud claim must be dismissed."

Whether an act by the target attorney was a departure from the good and applicable standards of attorney practice is almost always the province of an attorney-expert.  The few exceptions are only the most basic of mistakes, such as a forgotten statute of limitations.

Here, in Tran Han Ho v Brackley   2010 NY Slip Op 00575   Decided on January 28, 2010   Appellate Division, First Department  we see two mistakes:  the failure to offer an expert, and an attempt to offer an expert opinion on sur-reply.  We envision plaintiff's attorney reading defendant''s reply with dread, seeing [hypothetically] the argument that no expert opinion has been submitted and that summary judgment must issue.
 

"The motion court properly refused to consider the sur reply affirmation of plaintiffs' legal expert presented to the court after the motion had been fully submitted (see Foitl v G.A.F. Corp., 64 NY2d 911 [1985]). Absent an expert's affidavit, and given claims that, as pleaded, raise issues of professional standards and causation beyond the ordinary experience of persons who are not lawyers, summary judgment was properly granted (see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; cf. Butler v Brown, 180 AD2d 406, 407 [1992], lv denied 80 NY2d 751 [1992], citing S & D Petroleum Co. v Tamsett, 144 AD2d 849, 850 [1988])."

Plaintiff sues defendant for legal malpractice.  In an attempt to knock out the plaintiff's attorney (success would not end the case, but would definitely place it in jeopardy, and create a time out ) defendant started a third party action against the plaintiff's attorney, and then at the same time moved to dismiss the complaint.

"The Supreme Court properly granted that branch of Sieradzki's motion which was to dismiss the third-party cause of action to recover damages for legal malpractice. "On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading is to be afforded a liberal construction" (Kempf v Magida, 37 AD3d 763, 764). The court must accept the facts as alleged in the complaint as true, accord the plaintiffs the benefit of every possible favorable inference, and determine whether the facts as alleged fit within any cognizable legal theory (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303; Leon v Martinez, 84 NY2d 83, [*2]87-88). To establish a cause of action alleging legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship (see Terio v Spodek, 63 AD3d 719, 721; Velasquez v Katz, 42 AD3d 566, 567). To prove an attorney-client relationship, there must be an explicit undertaking "to perform a specific task" (Terio v Spodek, 63 AD3d at 721). " It is well established that, with respect to attorney malpractice, absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence'" (Moran v Hurst, 32 AD3d 909, 911, quoting Rovello v Klein, 304 AD2d 638, 638). Viewing the third-party complaint in the light most favorable to Roth, she failed to allege the existence of an attorney-client relationship between herself and Sieradzki.

Further, the Supreme Court properly denied that branch of Roth's cross motion which was for summary judgment dismissing the complaint. "To make a prima facie showing on a motion for summary judgment, the attorney in a legal malpractice action must present admissible evidence that the plaintiff cannot prove at least one of the essential elements of a legal malpractice claim" (Terio v Spodek, 63 AD3d at 721). The evidence submitted demonstrated the existence of a triable issue of fact as to whether there was an attorney-client relationship between Roth and the plaintiffs. In light of Roth's failure to meet her prima facie burden, it is unnecessary to consider the adequacy of the plaintiffs' opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Finally, the Supreme Court properly, in effect, denied that branch of Roth's cross motion which was to disqualify Sieradzki as counsel for the plaintiffs. Roth failed to satisfy her burden by offering any proof that Sieradzki's testimony would be "necessary" (Bentvena v Edelman, 47 AD3d 651, 652). "

Its not evident from the decision but we guess that client then hired an attorney who seeks to change an affirmative defense to a counterclaim for legal malpractice.  in addition, attorney seeks to add an employee of the law firm as a "third party" defendant, and asks for a copy of the file and discovery responses.  How does Judge Gische of Supreme Court, New York County decide?

In Wagner Divs, P.C. v Gargano 01/20/2010 ;  2010 NYSlipOp 30156(U)  Justice Gische decides:

a.  In a regular case, retaining lien trumps need for file

b.  In a case with a legal malpractice counterclaim, need for file trumps law firm's retaining lien

c.  Law firm has to allow photocopying

d.  Defendant must pay for the copies

e. Amendment should be, and is, freely granted here.

 

Things only went from bad to worse.  She hired attorneys, but the action was not filed correctly.  From law.com: ""[T]he following illustrates why members of the public may hold cynical views of the legal profession," Supreme Court Justice Emily Jane Goodman began her ruling in Kremen v. Benedict P. Morelli & Associates, 101739/06.

Victoria Kremen underwent a double mastectomy after allegedly being misdiagnosed with breast cancer. She accused Morelli Ratner and the now defunct Schapiro & Reich of mishandling the action she brought against her doctors, a suit that was ultimately dismissed because the 2 1/2-year statute of limitations had expired.

Morelli Ratner was formerly known as Benedict P. Morelli & Associates.

Kremen also lost her bid to sue the attorneys for legal malpractice on the ground that they had failed to preserve her case. Now, Morelli Ratner is pressing a counterclaim against Kremen to recoup $6,000 the lawyers spent in advancing her medical malpractice case. "

The Appellate Division reversed Justice Goodman's decision on the statute of limitations against Morelli Ratner and dismissed. "Plaintiffs allege negligence in legal representation in their original medical malpractice action, which was dismissed as untimely. Specifically, they allege failure to argue their entitlement to the "bankruptcy toll" of the statute of limitations. 11 USC § 108 (a) (2) provides debtors a two-year toll of an existing statute of limitations period, but only if "such period has not expired before the date of the filing of the petition." Here, the bankruptcy toll was not triggered because the statute of limitations had already run. "

Morelli Ratner then sued plaintiff for $ 6000 of expenses.  Justice Goodman has rendered a decision on this claim. From Law.Com: "A Manhattan judge has slapped the personal injury firm of Morelli Ratner with $6,000 in sanctions for bringing a "spiteful" and "wasteful" suit against a former client. Supreme Court Justice Emily Jane Goodman's ruling comes three months after she sharply criticized the firm for launching a "nonsensical" action to recover the costs of an unsuccessful medical malpractice action from Victoria Kremen. "

In our examination of STONEWELL CORP., and RICHARD GLADSTONE, Plaintiffs, -against- CONESTOGA TITLE INSURANCE CO., WILLIAM KOLSHORN, 04 CV 9867 (KMW)(GWG) we looked at the legal malpractice definitions and application.  Today, we look at the professional judgment defense.

"The Court is not persuaded by Stonewell's contention that Dollinger was negligent in advising Stonewell to proceed in the "bias[ed] forum" of the Middle District of Florida instead of the more "impartial" forum of the New York district court. (See Pl. Resp. at 10, 13, DE 126.) The Court will not endorse the view that some district courts are "biased" while others are "impartial," and that an attorney's duty to a client includes determining whether or not a court is "biased." The appropriate inquiry is whether the defendant-attorney exercised a "degree of care, skill and diligence commonly possessed and exercised by a member of the legal community." Nobile, 265 F. Supp. 2d at 288. Based upon the record before the Court, Dollinger met the requisite standard of care and conduct in pursuing the first "innocent owner" petition. 5

 Stonewell's reliance [*19] on Rubens v. Mason, 527 F.3d 252 (2d Cir. 2008), is without merit. In Rubens, the Court of Appeals for the Second Circuit vacated the district court's granting of defendant's motion for summary judgment in a legal malpractice suit, holding that one alleged act -- the attorney's decision not to present an expert witness in an arbitration proceeding -- may have constituted negligence. In a highly fact-specific analysis, the appellate court noted that, under some circumstances, "[d]etermining whether [the attorney's] alleged failures were negligent or merely reasonable tactical decisions present[] a question of fact that [can]not be resolved on summary judgment." Rubens, 527 F.3d at 254 (quoting Rubens v. Mason, 387 F.3d 183, 190 (2d Cir. 2004)). In the instant case, the Court must engage in its own fact-specific analysis to determine whether there is a disputed issue of fact as to whether Dollinger's conduct was negligent or proximately caused any damages to Stonewell. See Rubens, 527 F.3d at 255; Wester, 757 N.Y.S. 2d at 501.

The Court finds that Dollinger's decision to notify the court in the Southern District of New York of the status [*20] of the Florida proceedings and to request an interim stay pending decision on the first "innocent owner" petition in Florida satisfies the basic standards of legal practice. It is undisputed that the Florida and New York courts both had jurisdiction over the issue of whether Stonewell was a bona fide purchaser of the Center Point Mall property, a legal matter that would essentially determine the validity of Stonewell's title. See United States v. Weiss, 467 F.3d 1300, 1307 (11th Cir. 2006) (holding that the Florida district court had jurisdiction over the criminal forfeiture proceeding pursuant to 18 U.S.C. § 3231, while the New York district court had diversity jurisdiction over the Williams action pursuant to 28 U.S.C. § 1332).

Given the highly complex and substantively overlapping legal proceedings touching upon the validity of Stonewell's purported title to the Center Point Mall property at the time, there was no clearly superior legal strategy for Stonewell. It was reasonable for Dollinger to inform the Williams court about the Florida proceedings and to seek an interim stay in the Southern District of New York. The Williams court itself agreed with Dollinger's assessment of the [*21] situation in granting the interim stay. The record does not indicate that Dollinger's decision to give priority to the litigation in the Florida district court by filing the "innocent owner" petition there, and to seek the interim stay of the Williams action, constituted anything less than competent legal representation under difficult circumstances. Where a claim of legal malpractice is based upon a plaintiff's displeasure, developed only with the benefit of hindsight, regarding a defendant-attorney's selection of one among several reasonable strategic options, summary judgment should be granted in defendant's favor. See Rosner, 481 N.E. 2d at 554; Bernstein, 554 N.Y.S. 2d at 490."

"Stonewell asserts three separate claims alleging that Dollinger committed legal malpractice while representing Stonewell in proceedings related to Stonewell's purported property rights over a Center Point Mall property in New Jersey. First, Stonewell claims that Dollinger committed legal malpractice by: (1) advising Stonewell to pursue certain legal actions, including filing an "innocent owner" petition pursuant to 18 U.S.C § 1963(l) in the Middle District of Florida; (2) failing to advise Stonewell of the risks of taking such legal actions; (3) advising Stonewell to stay related proceedings in the Southern District of New York; and (4) failing to advise Stonewell of or otherwise [*3] address an alleged conflict of interest with respect to a second "innocent owner" petition in light of Dollinger's relationship with Conestoga Title Insurance Company (hereinafter "Conestoga"). "
 

"A plaintiff must establish the following elements for a claim of legal malpractice under New York State law: (1) an attorney-client relationship, (2) attorney negligence (3) that is the proximate cause of a loss, and (4) actual damages. See Allianz Ins. Co. v. Lerner, 416 F.3d 109, 118 (2d Cir. 2005); Estate of Re v. Kornstein Veisz & Wexler, 958 F. Supp. 907, 920 (S.D.N.Y. 1997). To succeed on a motion for summary judgment in a legal malpractice action, the defendant must establish that the plaintiff cannot prove at least one of these essential elements. See Rubens v. Mason, 527 F.3d 252, 255 (2d Cir. 2008); Carney v. Philippone, 332 F.3d 163, 167 (2d Cir. 2003).

To find negligence, a court must find sufficient evidence that the defendant-attorney's conduct "fell below the ordinary and reasonable skill and knowledge commonly [*14] possessed by a member of his profession." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (quoting Grago v. Robertson, 49 A.D.2d 645, 370 N.Y.S. 2d 255 (N.Y. 1975)). If the pleadings and evidence indicate no more than an "error of judgment" or a "selection of one among several reasonable courses of action," dismissal of the claims is warranted. Rosner v. Paley, 65 N.Y.2d 736, 481 N.E. 2d 553, 554, 492 N.Y.S.2d 13 (N.Y. 1985); see also Nobile v. Schwartz, 265 F. Supp. 2d 282, 288 (S.D.N.Y. 2003) (noting that a plaintiff must show that the attorney "failed to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community").

Common examples of circumstances for which an attorney may be held liable include "ignorance of the rules of practice, failure to comply with conditions precedent to suit, or . . . neglect to prosecute or defend an action." Hatfield v. Herz, 109 F. Supp. 2d 174, 180 (S.D.N.Y. 2000) (quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 554 N.Y.S. 2d 487, 489-90 (1st Dep't 1990)) Allegations that amount to nothing more than a "dissatisfaction with strategic choices" will not support a malpractice claim as a matter of law. Bernstein, 554 N.Y.S. 2d at 490."

"It is well settled that to establish a cause of action for legal malpractice, "a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages." Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 (2007), quoting McCoy v. Feinman, 99 NY2d 295 (2002), "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" Rudolf at 442; Fireman's Fund Ins. Co. v. Farrell, 57 AD3d 721 (2d Dept. 2008).

The four elements of legal malpractice, put more simply, are: departure, proximity, ascertainable damage, and the "but for" element. The defense of a legal malpractice action may take place on any of the four elements set forth. Was the behavior of the attorney a departure from the degree of skill and care? Was the departure a proximate cause of the damage? Was there one or more than one cause of the damage? "

One way that settlements may upset a later legal malpractice case is when the judge asks "Are you satisfied with the work of your attorney?"  How this question crept into a settlement allocution is buried in ancient ritual.  How important it is is shown in a few recent cases.

"Recently, one Appellate Division case and two Supreme Court cases have challenged the "effectively compelled" principle, and in effect, turned it on its head. The setting for this triumvirate of cases is matrimonial settlements. For reasons not sanctioned in the CPLR or any statute, the custom on settlement of a matrimonial action is to allocute the two parties to the settlement. Beyond the questions of whether the parties have capacity, are in sufficient health to understand, are not taking cognitive altering medication, the court often chooses to ask whether the clients are satisfied with their attorney's work. The genesis of this practice is not clear; its purpose seems to be to insulate the attorneys from later criticism. In this latest set of cases, the insulation appears to work."

For the rest of the discussion, please see today's NYLJ.

"Can a homeowner who loses his home to foreclosure, after filing four separate bankruptcy petitions, prevail on a legal malpractice claim against his bankruptcy attorney and recoup the remaining equity in the home as damages? This Court not only finds the claim to viable but, based upon this record, holds that a substantial award of damages is appropriate. "

"In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, resulting in actual damages to the plaintiff, and that "but for" the attorney's negligence, the plaintiff would have succeeded on the merits in the underlying action or not have sustained any damages (Dupree v Voorhees, _ AD3d _ , 2009 WL 4681166 [2d Dept Dec. 8, 2009]; Ali v Fink, 67 AD3d 935, _ NYS2d _ [2d Dept 2009]; Santiago v Fellows, Epstein & Hymowitz, P.C., 66 AD3d 758, 886 NYS2d 766 [2d Dept 2009]).

Here, it is obvious, from the testimony of defendant's associate, that the provision in the Conditional Order which held that a default would not be protected by the filing of a new petition, was simply forgotten. The legal advise to commence a new bankruptcy proceeding was contrary to the dictates of the May 1, 2000 order and offered no protection to plaintiff, in response to the foreclosing bank's claim that plaintiff was in default of the Conditional Order. Moreover, the defendant's law office just assumed that plaintiff had not complied with the Conditional Order and accepted the representations made by the foreclosing bank's attorney."
 

"With regard to the element of causation, plaintiff has to show that he would not have incurred any damages but for the attorney's negligence. Defendant attempted to show that plaintiff did not have the ability to pay the monthly mortgage payments and offered plaintiff's tax returns for the 1998 (Def. Ex. P), 1999 (Def. Ex. Q), 2000 (Def. Ex. L), 2001 (Def. Ex. M), and 2002 (Def. Ex. O) as evidence of plaintiff's inability to pay. Plaintiff offered bank account statements from December 2001 to April 2002 (Pl. Ex. 8) to demonstrate the ability to pay the monthly payments. Plaintiff also testified that for the year, 2002, the month of July was the only [*6]month that he would have had difficulty making the required payments.

In deciding the issue of causation, the Court need not speculate as to the financial ability of the plaintiff to pay into the future. The sole issue to be determined is whether "but for" the negligence of the defendant, plaintiff would not have lost his home to foreclosure. Here, plaintiff satisfied his burden by the submission of evidence that he could comply with the Conditional Order during the time frame in question, that is, satisfaction of the November 15, 2001 payment by January 15, 2002 and each monthly payment thereafter up to the foreclosure sale date of April 4, 2002. Such evidence satisfied plaintiff's obligation to establish causation.

Having found for the plaintiff on the issue of liability, the Court must address the issue of damages. The object of awarding damages in a legal malpractice action is "to make the injured client whole" (Campagnola v Mulholland Minion & Roe, 76 NY2d 38, 42, 556 NYS2d 239 [1990]). Compensatory damages are generally awarded where a plaintiff can demonstrate that he or she suffered any actual damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 31 AD3d 418, 818 NYS2d 153 [2d Dept 2006]). "

Global Bus. Inst. v Rivkin Radler, LLP 01/13/2010 Other Courts 2010 NYSlipOp 30062(U)  follows a familiar path in which the court makes factual determinations, as a matter of law even when the parties have not moved for summary judgment.

Several years ago, the matter was transferred to Civil Court pursuant to CPLR 321(d).  Now plaintiff seeks to increase the ad damnum clause and restore to Supreme Court.  They fail, because the court scrutinizes the evidence and determines [via summary judgment or something like it] that it was the client and not the law firm who negotiated the tax escalation clause themselves.

Here, in Cinao v. Reers, Index no.  12274/04 , Supreme Court, Kings County, we see a discussion of whether a case must be pending in a New York Court for Judiciary Law 487 to apply.

There is scant judicial opinion on this issue.  Justice Battaglia discusses his take on whether a case in Hawaii, with a NY plaintiff and a NY attorney might fall under Judiciary Law 487.

"Based as it is on a line of judicial decisions, beginning with the Second Circuit's decision in Schertenleib v. Traum (589 F2d 1156 [2d Cir 1978]), Defendant's most serious objection to Plaintiff's motion is that Judiciary Law §487 applies only to misconduct by attorneys in connection with proceedings pending in New York courts. As stated by the Second Circuit:

"[S]ection 487…is…intended to regulate, through criminal and civil sanctions, the conduct of litigation before the New York courts. We doubt it was the purpose of the New York legislature to fasten on its attorneys criminal liability and punitive damages for acts occurring outside the state. It seems more likely that the concern is for the integrity of the truth-seeking processes of the New York courts, not for injury to foreign litigants." (Id. at 1166.)

No authority or other source is cited by the court for its understanding of the New York Legislature's intent as to the scope of Judiciary Law §487. Schertenleib was relied upon by a federal district court in dismissing a §487 claim based upon a restraining order obtained from a federal district court in Florida, stating that "Section 487 only applies to conduct within the borders of New York State" (see Papworth v. Steel Hector & Davis, 2007 US Dist LEXIS 72864, * 33 [NDNY 2007]; see also Nardella v. Braff, 621 F Supp 1170, 1172 [SDNY 1985].) The subsequent decisions by federal courts have not added to Schertenleib's rationale.

Schertenleib has been relied upon in one New York state court decision. Civil Court held in Southern Blvd. Sound v. Felix Storch Inc. (165 Misc 2d 341 [Civ Ct, NY County 1995], mod. on other grounds 167 Misc 2d 731 [App Term, 1st Dept 1996]) that "Judiciary Law §487 (1) does not apply to acts committed in courts of States other than the State of New York" (see id. at 344), offering the following rationale:

"If the Legislature wanted to regulate the behavior of New York State attorneys in courts other than those of our State, it would have had to have been more specific or have stated 'any court' in Judiciary Law §487 (1). The use of the term 'the court' means a court of the State of New York." (Id.)

Civil Court's reading may be even narrower that the Second Circuit's if understood as precluding applicability of the statute to deceit on a federal court sitting in New York. In any event, this Court respectfully disagrees if either court would refuse to apply the statute here for the sole reason that the allegations relate to proceedings pending in a Hawaii court and not a court sitting in New York.

The statute itself states no such limitation. "The statutory text is the clearest indicator of legislative intent." (Maraia v. Orange Regional Med. Ctr., 63 AD3d 1113, 1116 [2d Dept 2009] [internal quotation marks and citations omitted].) "[A] court cannot amend a statute by inserting words that are not there, nor will a court read into a statute a provision which the Legislature did not see fit to enact." (Matter of Charles S., 60 AD3d 954, 955 [2d Dept 2009] [internal quotation marks and citations omitted].)

"[T]he statute's evident intent [is] to enforce an attorney's special obligation to protect the integrity of the courts and foster their truth-seeking function" (see Amalfitano v. Rosenberg, 12 NY3d at 14), with a related "concern for curbing and providing redress for attorney overreaching vis-a-vis clients" (see Liddle & Robinson v. Shoemaker, 276 AD2d 335, 336 [1st Dept 2000].) The first New York statute on the subject, adopted in 1787, provided redress for attorney deceit or collusion "in any court of justice." (See Amalfitano v. Rosenberg, 12 NY3d at 12 [quoting L 1787, ch 36, §5] [emphasis added].)

Generally, Judiciary Law §487 "applies only to wrongful conduct by an attorney in an action that is actually pending." (See Mahler v. Campagna, 60 AD2d 1009, 1012 [2d Dept 2009].) "Where the deception is directed against a court, a pending judicial proceeding is not required; it is sufficient if the deception relates to a prior judicial proceeding or one which may be commenced in the future." (Singer v. Whitman & Ransom, 82 AD2d 862, 863 [2d Dept 1981]; see also Costalas v. Amalfitano, 305 AD2d 202, 204 [1st Dept 2003]; Hansen v. Caffry, 280 AD2d 704, 705 [3d Dept 2001].) "Deception of a court is not confined to the actual appearance in court but has reference to any statement, oral or written, made with regard to a proceeding brought or to be brought therein and communicated to the court with intent to deceive." (Fields v. Turner, 1 Misc 2d 679, 681 [Sup Ct, NY County 1955]; see also Amalfitano v. Rosenberg, 533 F3d 117, 123 [2d Cir 2008].)

The limitation, in the case of deceit of a party, to a pending proceeding was first articulated by the Court of Appeals more than a century ago in Loof v. Lawton (97 NY 478 [1884].) "The 'party' referred to is clearly a party to an action pending in a court in reference to which the deceit is practiced, and not a person outside, not connected with the same at the time or with the court." (Id. at 482.) "In placing a construction upon the section cited," a predecessor to Judiciary Law §487, "we should consider its provisions in connection with others which relate to the same general subject, and in view of the object to be attained." (Id. at 481-82.)

With respect to Supreme Court's ruling in Southern Blvd. Sound (165 Misc 3d 341), there is nothing in Judiciary Law §487 that would limit its applicability to deceit practiced on a court sitting in New York, and a limitation cannot be fairly implied from the use of the definite article "the," rather than the indefinite article "a." Section 487 appears as part of Article 15 of the Judiciary Law, "Attorneys and Counselors," with statutory provisions governing the admission and supervision of attorneys. The "integrity of the courts and…their truth-seeking function" (see Amalfitano v. Rosenberg, 12 NY3d at 14) is no less worthy of protection because the court sits in a sister state, and, in any event, the statutory purpose extends to "curbing and providing redress for attorney overreaching vis-a-vis clients" (see Liddle & Robinson v. Shomaker, 276 AD2d at 336.)

This Court is not bound by the federal court decisions in Schertenlieb and its progeny, nor is it bound by Supreme Court's and Appellate Term's decision in Southern Blvd. Sound. (See Cox v. Microsoft Corp., 290 AD2d 206, 207 [1st Dept 2002]; People v. Gundarev, 2009 NY Slip Op 51972 [U], * 1-* 2 [Crim Ct, Kings County 2009]; King Transp. Servs. v. State, 185 Misc 2d 684, 687 [Ct Cl 2000].) Nonetheless, a court should be reluctant to divert from an accepted view of the law, particularly where interpretation of a statute is at issue. Here, however, only the Schertenleib and Southern Blvd. Sound courts offered any reasoning to support the implied limitation on the applicability of Judiciary Law §487, and neither cited any authority or other support for its reading of the statute.

In light of the statutory language and purposes, this Court sees no basis for limiting the applicability of Judiciary Law §487 to judicial proceedings pending in New York courts. A New York court has sufficient interest in supervising the conduct of attorneys admitted before its bar, and protecting resident clients who have been harmed by the deceit of an admitted attorney, to apply Judiciary Law §487 to the attorney's conduct no matter where the action is pending."

Here is another example: Liberty Assoc. v Etkin ; 2010 NY Slip Op 00225 ; Decided on January 12, 2010 ;Appellate Division, Second Department :
 

"In January 2003 the Ravin Firm commenced an action against Liberty Associates in the Superior Court of New Jersey to recover fees for the legal services rendered. In 2004, during the pendency of the instant action, Liberty Associates and the Ravin Firm settled the New Jersey fee dispute action (hereinafter the fee dispute action), which was dismissed with prejudice. Upon learning of the settlement, Etkin moved for summary judgment dismissing the complaint in the instant action. The Supreme Court granted the defendant's motion. We affirm. ""This action to recover damages for legal malpractice against Etkin, as a member of the Ravin Firm, arises out of the same series of transactions as the fee dispute action asserted by the Ravin Firm against the plaintiff herein for legal fees. Upon resolution of the fee dispute action, the parties, by their attorneys, executed a stipulation of dismissal with prejudice and without costs. A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata (see Matter of Hofmann, 287 AD2d 119, 123 ["An order of discontinuance effecting settlement on the merits is accorded the same res judicata effect as the entry of judgment on the merits"]; see also Fifty CPW Tenants Corp. v Epstein, 16 AD3d at 294).

Here, Etkin established, prima facie, that the legal services at issue in the instant action and in the fee dispute action were the same and, thus, that Liberty Associates' settlement of the fee dispute action with the Ravin Firm, of which Etkin was a member, precludes Liberty Associates from maintaining the instant action against Etkin under the doctrine of res judicata (see Izko Sportswear Co, Inc. v Flaum, 25 AD3d 534, 537)."

 

"Summary judgment based on the defense of the statute of limitations requires that a defendant make a prima facie showing that an action to recover damages for legal malpractice was filed more than three years after the cause of action accrued (see CPLR 214[6]; Rachlin v LaRossa, Mitchell & Ross, 8 AD3d 461), when "all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court" (McCoy v Feinman, 99 NY2d 295, 301 [internal quotation marks omitted]). An action to recover damages for legal malpractice is deemed to accrue on the date the [*2]malpractice was committed, not when it was discovered (see Shumsky v Eisenstein, 96 NY2d 164, 166).

Under the doctrine of "continuous representation," the three-year statue of limitations for legal malpractice is tolled while the attorney continues to represent the client in the same matter in which the malpractice allegedly occurred, after the alleged malpractice is committed (Shumsky v Eisenstein, 96 NY2d at 168). The parties must have a "mutual understanding" that further representation is needed with respect to the matter underlying the malpractice claim (McCoy v Feinman, 99 NY2d at 306).

Here, the defendant failed to establish its prima facie entitlement to summary judgment dismissing the legal malpractice cause of action by demonstrating that the statute of limitations expired (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint as time-barred without prejudice to renewal after completion of discovery.

Defendants take the case off the trial calendar, work/fool around with it for a few months, then "Plaintiffs were given one year to restore the case to the calendar but failed to timely comply, and defendant subsequently refunded plaintiffs' retainer and terminated the representation. Six months after their time to do so had expired, plaintiffs moved, pro se, to restore the case to the calendar. Supreme Court (Meddaugh, J.) denied the motion and dismissed the case with prejudice retroactive to June 14, 2005, finding that plaintiffs "set forth no meritorious claim [and] no reasonable excuse for their failure to restore the case to the calendar within [one] year of the case being struck." Plaintiffs' subsequent pro se submission, attaching affidavits, letters and reports from plaintiffs' medical providers was deemed a motion to renew/reargue. In denying that motion, the court noted that the papers submitted with that application "were couched in only the most conclusory terms and failed to establish any causal connection between any allegedly improper conduct by [the school district] and the [infant's] medical conditions."
 

Plaintiffs sue for legal malpractice and defendants move to dismiss the complaint.  The Court's decision reads: "Defendant's attempt to invoke collateral estoppel is unavailing. Plaintiffs' motion to restore their case against the school district to the calendar required a showing of merit sufficient to establish a triable issue of fact (see Alise v Colapietro, 119 AD2d 921, 922 [1986]) and conclusory allegations are inadequate in that setting (see Fountain v Village of Canastota, 219 AD2d 781, 782 [1995]). In contrast, on defendant's motion to dismiss, plaintiffs' allegations, including conclusory allegations in supporting affidavits, are deemed to be true (see Berry v Ambulance Serv. of Fulton County, Inc., 39 AD3d 1123, 1124 [2007]). Defendant, therefore, failed to carry his burden to establish an identity of issues between the two actions and is not entitled to invoke the doctrine of collateral estoppel (see Cary v Fisher, 149 AD2d 890, 891 [1989]).

On the record before us, plaintiffs have stated a cause of action for legal malpractice. "'In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action "but for" the attorney's negligence'" (Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied Spiegel v Rowland, ___ US ___, ___, 128 S Ct 1696 [2008], quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [internal citation omitted]). Although plaintiffs' evidence may be insufficient to withstand a motion for summary judgment, on an unconverted preanswer motion to dismiss, plaintiffs' allegations are accepted as true and are entitled to the benefit of every reasonable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]).