New York Attorney Malpractice Blog

Psychologists and Forensic experts are routinely appointed by the Court to examine and produce evidence for the Court; attorneys similarly are used as guardians ad litem, as Court examiners and the like.  Are they subject to suit, especially legal malpractice for their activities?

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. "

The statute of limitations is three years in legal malpractice.  It may be extended by the principal of continuous representation.  Mere representation is not enough.  There has to be a continuing relationship of trust and confidence and the work within the three year period must be on the same issue as is now being sued upon.  It cannot simply be general representation or work on another issue.

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). "

Assume the following:  Plaintiff has a medical malpractice case and retains Defendant law firm to handle it.  Defendant law firm works on the case for a while, and as the statute of limitations nears, tells the client that it's not going to go forward, and that the client should seek other counsel.  Client, who does not have other attorneys ready to go, is unable to bring the action within the statute of limitations.  Is the first attorney liable in legal malpractice, or is the client (in effect) responsible because no new attorney was found. 

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)."

Here is a short decision with deep reaching consequences. In Kurman v Schnapp ;2010 NY Slip Op 03786 ;Decided on May 4, 2010 ;Appellate Division, First Department we see the deceitful act of an attorney, and the Appellate Division substituting its finding for that of Supreme Court. We have commented on the natural inclination of attorneys, applying rules of attorney behavior to other attorneys, to minimize and overlook. How, one asks, could Supreme Court have come to such a different conclusion from the Appellate Division?
 

"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."
 

The matter of Steinberg v. Schnapp, 2010 NY SlipOp 02991 relates the story of three lawyers, all of whom labored over a decedent's estate, and how the triumvirate fell apart. Steinberg and Schnapp were retained to handle the estate by the executor who in this case was the third attorney. Things fell apart rapidly, and, although unsaid, some mistakes were made. Attorney 1 sues attorney 2 over fees, but does not sue the estate. Why is this?

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])."
 

Pre-judgment attachment is disfavored in litigation.  Generally one must show that "the subject property was in imminent danger of irreparable loss or waste ."  Beyond that showing, there are rules when the request for an attachment might be sought.  Here is an example.

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]"

We've often noted that stating the mistake made by an attorney is not the difficult part of legal malpractice analysis.  Judges, lay persons and attorneys all readily point to this mistake or that mistake. Stating a departure from good and accepted practice is the easy part of the triumvirate.  What is way more difficult is analysis of the "but for" and the "damage" aspects of a case.  Here, in Meimeteas v Carter Ledyard & Milburn LLP ;2012 NY Slip Op 30134(U) ;January 12, 2012
Supreme Court, New York County; Docket Number: 100857/11 ;Judge: Eileen A. Rakower we see that plaintiff fails to convince the judge that there is merit to the underlying claim, regardless of mistakes his attorney may have made.

"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 "

Were we able to predict the future, we would be betting on further proceedings after the decision in CRP/Extell Parcel I, L.P. v Cuomo; 2012 NY Slip Op 50073(U) ; Decided on January 19, 2012
Supreme Court, New York County; Singh, J.  Here are the facts as set forth by Justice Singh.
 

"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.

Plaintiff is involved in an assault and battery, and then spends the next umpteen years litigating the case, suing his attorney, relitigating the case, suing the police department, suing his attorney once again.  It all ends in his being enjoined from suing again without court approval.  Only in a pro-se world could this happen.

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).

Attorneys automatically obtain a charging lien by commencing an action. There are several ways to lose that lien. One is to be terminated "for cause" and another is to withdraw voluntarily. This is different from being "consented out" or by withdrawing with mutual consent. In Nassour v Lutheran Med. Ctr. ;2010 NY Slip Op 07906 ; ;Appellate Division, Second Department we see the difference:
 

"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). "
 

The attorney-client privilege, known to almost all, is a wide-ranging, often applied stricture.  An attorney is not required to disclose communications with a client concerning the representation...almost ever.  There are exceptions, and the one most likely to pop up comes in legal malpractice litigation.  Communications between plaintiff and defendant is (almost) never privileged.  What of communication between plaintiff and subsequent attorneys, who are not sued by plaintiff?

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.

 

Attorneys make mistakes.  Sometimes mistakes are fixes, sometimes not.  Rarely do attorneys go to the length of fabricating complaints, making up stories of ongoing litigation and then running away from the disciplinary committee.  We don't know what defense the attorney might offer, but this tale is both sad and shocking. The attorney in Matter of Gold; Grievance Committee for the Tenth Judicial District ; Motion No: 2011-06543  ;  Slip Opinion No: 2012 NY Slip Op 61346(U)
Decided on January 17, 2012 ; Appellate Division, Second Department, Motion Decision  is now suspended.
 

"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.

Commencement of a new case and the service of process are anachronistic to New York, and provide a wealth of potential problems for the experienced practitioner.  Imagine how confusing it is to the pro-se plaintiff.  In any event, were one to query a group of experienced attorneys, we predict that a shockingly large number would have trouble correctly explaining CPLR 306-b.

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. "

Clients depend on attorneys to advise them on the law. Quick, what do you know about usury? Do you know enough competently to advise a client, or just enough to get yourself into trouble? Here is a legal malpractice story about the later.Theresa Striano Revocable Trust v Blancato 
71 AD3d 1122 ; Appellate Division, Second Department
 

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. "
 

Big law firms take on big cases, and even bigger transactions.  One might read about a $ 50 Million dollar loan concerning a hospital.  One might have seen "Margin Call" and thought about how the sale of those securitized mortgages really takes place, and who checks the paperwork.  In Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft, LLP.  we see what happens when things go wrong.

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.

Plaintiff's mother  brought a personal injury case against the City of New York for plaintiff from an injury of December 20, 2002.  She retained defendant attorneys to represent her.  She discharged the attorneys via a "Consent to Change Attorneys" in August , 2006.  She brought the legal malpractice case Fleyshman v Suckle & Schlesinger, PLLC ; 2012 NY Slip Op 00176 ; Decided on January 10, 2012 ; Appellate Division, Second Department.  This case was dismissed on the statute of limitations.

"The Supreme Court erred in denying that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the first cause of action, alleging legal malpractice, as time-barred. The defendants sustained their initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in May 2010 (see CPLR 214[6]; Rupolo v Fish, 87 AD3d 684, 685; Krichmar v Scher, 82 AD3d 1164, 1165). In response, the plaintiff failed to raise a question of fact as to whether the statute of limitations was [*2]tolled by the doctrine of continuous representation. All of the documentary evidence demonstrated that the relationship necessary to invoke the continuous representation doctrine terminated in August 2006, and the plaintiff's submissions did not indicate that her trust and confidence in the defendants continued, or was restored, after that date (see Rupolo v Fish, 87 AD3d 684; Krichmar v Scher, 82 AD3d at 1165; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488; Piliero v Adler & Stavros, 282 AD2d 511, 512; Aaron v Roemer, Wallens & Mineaux, 272 AD2d 752, 754-755).

Moreover, the Supreme Court should have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged a violation of Judiciary Law § 487. Even as amplified by the plaintiff's affidavit, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted "with intent to deceive the court or any party" (Judiciary Law § 487[1]; see Jaroslawicz v Cohen, 12 AD3d 160, 160-161). Further, the plaintiff's allegation that the defendants "willfully delayed [her] recovery with a view to their own ends and benefit" is a bare legal conclusion, "which is not entitled to the presumption of truth normally afforded to the allegations of a complaint" (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969; see Judiciary Law § 487[2]). "

Last August we reported on the legal malpractice case which arose in California and made its way here.  "In this recurring situation, plaintiff has both a California and a NY connection, and hired an attorney to do some work, which eventually goes sour. Frequently a case like this comes up in the entertainment field, with its CA and NY roots. As an example, Basilotta v Warshavsky ; 2011 NY Slip Op 32185(U); August 2, 2011; Sup Ct, NY County; Docket Number: 115525/09; Judge: Paul Wooten shows how the short CA statute of limitations (1 year) undermines the longer NY statute (3 years).

"During the 1980's plaintiff was a singer known for her popular 1982 song Hey Micky. At all relevant times she has been a California resident. In or about 2003, non party Fallon Inc produced a television commercial for the non-party Subway restaurant franchise that featured Micky without Plaintiff's knowledge or consent. Subsequent to becoming aware of this commercial, plaintiff retained defendant Oren J. Warshavsky, who at the time worked at defendant law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione (“Gibbons”).’ Plaintiff alleges that she retained Warshavsky and Gibbons I) to seek compensation for the unauthorized use of Mickey in the commercial, and 2) to clarify her ownership rights to the Mickey master recordings. The retainer agreement between the parties was strictly contingency-fee based, and defines the scope of the retainer as “regarding all causes of action."

The gist of the legal malpractice case is that the attorneys got a settlement offer of $ 35,000 and when plaintiff did not accept, sent a letter to a successor attorney advising him of their position that, among other things, plaintiff had terminated her relationship with Gibbons in December, 2006.

The later legal malpractice case revolved around the ownership and exploitation of the master recordings and whether Gibbons was to blame for legal malpractice. Under CPLR 202, a cause of action accruing in a jurisdiction outside NY must be timely both in NY and in that other jurisdiction
 

Now, the Appellate Division has reversed and dismissed.  "Accepting the allegations in plaintiff's complaint as true and resolving all inferences in her favor, as we must in considering a motion to dismiss (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Benn v Benn, 82 AD3d 548, 548 [2011]), this legal malpractice action accrued in California at the latest in November 2007, when plaintiff received defendants' letter unequivocally informing her that they were no longer representing her or prosecuting her underlying actions. Accordingly, under California's applicable one-year statute of limitations (Cal Code Civ Proc § 340.6[a]), this action, commenced in February 2010, is time-barred.

Contrary to the motion court's finding, plaintiff's assertion that it was not until October 2009 that she discovered that Radialchoice, the record company with whom she had held a recording contract, was involuntarily liquidated, did not raise an issue of fact as to whether this action is time-barred. Indeed, plaintiff's allegation was asserted only in her memorandum of law in opposition to the motion, not in her pleadings or any accompanying affidavit (see Coppola v Applied Elec. Corp., 288 AD2d 41, 42 [2001]). Moreover, plaintiff's alleged discovery is simply an additional facet of the same nonfeasance of which, according to her complaint, she had been aware since November 2007; thus, it does not constitute a separate wrongful act or omission for statute of limitations purposes (see Peregrine Funding, Inc. v Sheppard Mullin Richter & Hampton LLP, 133 Cal App 4th 658, 685, 35 Cal Rptr 3d 31, 51 [2005]).

Lastly, plaintiff's allegations support the conclusion that she had inquiry notice of defendants' alleged nonfeasance more than one year before commencing this action. Indeed, since January 2007, when plaintiff obtained her case files and observed that defendants had performed very little work on her underlying cases, she should have discovered, through the use [*2]of reasonable diligence, the facts supporting liability, including the fact that Radialchoice had been involuntary liquidated (see McGee v Weinberg, 97 Cal App 3d 798, 803, 159 Cal Rptr 86, 89-90 [1979]). "
 

Well, the case is not strictly about Dog, it does derive from litigation surrounding him.  Question:  you have a dispute over a sum of money with "X" and "Y".  You also have a legal malpractice case against your attorney, who worked on the "x" and "Y" case.  If you collect from your attorney in legal malpractice, does that affect your right to the money in dispute with "X" and "Y" ?

In A&E TELEVISION NETWORKS, LLC, , -v.- PIVOT POINT ENTERTAINMENT, LLC,; 10 Civ. 9422 (PGG) (JLC);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 149740;December 20, 2011 we see:

"Before the Court in this interpleader action are letters from both parties and non-parties in connection with the request of Defendants Duane "Dog" Chapman and Beth Alice Barmore-Smith Chapman (the "Chapmans") seeking to compel Defendant Pivot Point Entertainment, LLC ("Pivot Point") to produce a confidential settlement agreement (the "Agreement"), and all drafts thereof, entered into by the parties in the action Krutonog v. Akin, Gump, Strauss, Hauer & Feld, et al. (the "Krutonog Action") filed in the Superior Court of California for the County of Los Angeles. "

"Here, the Chapmans, who were neither parties to the Krutonog Action nor the Agreement, assert that the unpaid compensation at issue in the Krutonog Action is "in substantial part the same monies that A&E has deposited with the Court in this Interpleader Action" because both actions involve the Co-Executive Producer Agreement. (Joint Letter at 3). As such, the Chapmans argue, any money paid to Krutonog in settlement of his claims mitigates [*5] his and, by extension, Pivot Point's alleged losses under the Co-Executive Producer Agreement and should offset Pivot Point's recovery of damages here. (Id.). In addition, the Chapmans contend that the Agreement is relevant because it supports their theory that Krutonog was a de facto talent agent for the Chapmans, which entitles the Chapmans to recover the interpleaded assets deposited by A&E with the Court. (Id.).

While the Chapmans cite to several cases for the proposition that settlement agreements can be discoverable and do not require a heightened showing of relevance in light of Rule 408 of the Federal Rules of Evidence, see, e.g., Small v. Nobel Biocare USA, LLC, No. 06 Civ. 0683 (RJH) (JLC), 2011 U.S. Dist. LEXIS 77838, 2011 WL 3055357, at *1-2 (S.D.N.Y. July 19, 2011); ABF Capital Management v. Askin Capital, Nos. 96 Civ. 2978 (RWS), 95 Civ. 8905 (RWS), 97 Civ. 1856 (RWS), 97 Civ. 4335 (RWS), 98 Civ. 6178 (RWS), 98 Civ. 7494 (TSZ), 2000 U.S. Dist. LEXIS 3633, 2000 WL 191698, at *1 (S.D.N.Y. Feb. 8, 2000), and it is true that Rule 408 applies to admissibility not discoverability of settlement agreements, see, e.g., Conopco, Inc. v. Wein, No. 05 Civ. 9899 (RCC) (THK), 2007 U.S. Dist. LEXIS 27339, 2007 WL 1040676, at *5 (S.D.N.Y. Apr. 4, 2007), they do not cite [*6] to any authority to support the notion that Krutonog's monetary settlement in a legal malpractice lawsuit should offset his potential recovery in an interpleader action. The Chapmans do not explain why or how money paid to settle the Krutonog Action should serve to offset Pivot Point's, or enhance the Chapmans', entitlement to the interpleaded "stake." The mere fact that both lawsuits involve the same agreement—the Co-Executive Producer Agreement, to which the Chapmans are not parties (Joint Letter at 4)—does not, by itself, mean that recovery in one lawsuit should mitigate recovery in another. Recovery in either lawsuit by Krutonog, who is not a party in this action, or Pivot Point, who was not a party in the Krutonog Action, would not violate the rule against "double recovery for the same injury," Shepherd v. Law Offices of Cohen & Slamowitz, LLP, 668 F. Supp. 2d 579, 582 (S.D.N.Y. 2009), as the injuries alleged in both lawsuits—legal malpractice and breach of fiduciary duty on the one hand, and conflicting claims to the interpleaded assets on the other—are entirely different."
 

"As for the Agreement itself, California law permits disclosure only if certain conditions are satisfied, including, for example, if the "agreement provides that it is admissible or subject to disclosure, or words to that effect." See Cal. Evid. Code § 1123(a). Here, however, the Agreement contains a strict confidentiality provision. (Akin Gump Letter at 2). And while an in camera review of the Agreement might determine whether other conditions for disclosure have been met, see, e.g., Cassel v. Superior Court, 51 Cal. 4th 113, 119 Cal. Rptr. 3d 437, 244 P.3d 1080, 1089 (Cal. 2011) (quoting Cal. Evid. Code § 1123(b) (disclosure of written settlement agreement permitted if "'agreement provides that it is enforceable or binding or words to that effect'"), such a review is unnecessary at this time. The California Superior Court in the Krutonog Action entered a sealing order to protect the confidentiality of the Agreement. (Joint Letter at 6; Akin Gump Letter at 2). Pursuant to Rule 2.551(h)(1) of the California Rules of Court, "[a] sealed record must not be unsealed except on order of [*10] the court." The record before the Court does not indicate that the Chapmans have obtained any such order. Accordingly, the Chapmans have not established that the Agreement is discoverable."

"In sum, the Chapmans' request is denied. Any application to unseal the Agreement, and subsequently to compel its disclosure upon a showing of relevance under the applicable law, is appropriately made by the Chapmans in Superior Court in California."

Sometimes the attorney representing a client is actually retained by the client, and sometimes the attorney is provided to the client.  In one recurring situation, union members are provided with legal representation.  The member (plaintiff) does not have an attorney-client relationship with the attorney.  That relationship and the privity that is created is between the union and the attorney, and the member may not sue the attorney for legal malpractice.

in Cruz v United Fedn. of Teachers  ;2011 NY Slip Op 33499(U); December 23, 2011
Supreme Court, New York County; Docket Number: 103386/11; Judge: Eileen A. Rakower the client-member was a teacher who was charged with "unsatisfactory performance, misconduct or other disciplinary charges"  From there it was on to a "rubber room."  From the decision:

"Based upon the charges against her, Plaintiff was placed on an Ineligible Inquiry List, was removed from her teaching responsibilities, and was placed in a Temporary Reassignment Center - otherwise known as a “rubber room.” Plaintiff states that she provided UFT with timely notice
of the charges and her reassignment. UFT then called upon defendant New York State Unified Teachers (“NYSUT”) to represent Plaintiff in her Education Law $3020-a hearing. Defendants Sandner and Rubinstein were assigned to be Plaintiffs attorneys concerning her disciplinary charges.

Plaintiff claims that Sandner and Rubinstein failed to adequately represent Plaintiff during the course of her disciplinary proceeding. Specifically she states that during the two year pendency of her disciplinary charges, they never moved to have the charges dismissed or dropped; and that during the proceedings, they failed to “raise jurisdictional or other objections to the disciplinary hearing process.”

In 2008, during her- disciplinary proceeding, Plaintiff, along with other teachers, filed a lawsuit against UFT alleging, inter alia, that UFT (1) failed to honor its obligations to Plaintiff and to other teachers who were reassigned to the “rubber room” and facing disciplinary charges; (2) was discriminating against Plaintiff and (3) that UFT was failing to fairly represent her. Plaintiff alleges that, in response to, and in retaliation for commencing the lawsuit against UFT, defendant Moerdler, a UFT attorney, advised NYSUT, Sandner and Rubinstein that they should end their representation of Plaintiff. Sandner and Rubinstein complied and moved to withdraw as Plaintiffs attorneys, citing a conflict of interest. After the arbitrator granted Sandner and Rubinstein’s motion to withdraw, Plaintiff proceeded pro se. After the hearing, the Arbitrator issued a decision dated
December 1,2008 finding Plaintiff guilty of ten out of the 14 specifications brought against her (see Cruz v. New York City Dept. of Educ., 20 10 NY Slip Op 5001 6U [Sup. Ct., N.Y. Co. 20101) (denying Plaintiffs Article 75 petition challenging the termination). Plaintiff claims that her termination was the result of her pro se status and her inability to adequately defend herself.

Here, the court finds that Plaintiffs complaint must be dismissed. Petitioner’s DFR claim is clearly barred by the four-month statute of limitations set forth in CPLR 52 17(2)(a), which provides:
Any action or proceeding against an employee organization subject to article fourteen of the civil service law or article twenty of the labor law which complains that such employee organization has breached its duty of fair representation regarding someone to whom such employee organization has a duty shall be commenced within four months of the  date the employee or former employee knew or should have known that the breach has occurred, or within four months of the date the employee or former employee suffers actual harm, whichever is later. Further, the court notes that, even if timely, Plaintiff fails to state a DFR cause of action.

Plaintiff‘s additional claims are preempted by her DFR claim, and may not be asserted in order to circumvent the applicable four-month statute of limitations (see Roman v. Ciq Emples. Union Local 237, 300 A.D.2d 142 [lst Dept. 20021 (“The expedient of characterizing a claim for breach of the duty of fair representation as one  for breach of contract is unavailing to avoid the four-month limitations period prescribed in CPLR 2 17(2)(a)”); Mamorella v. Derkasch, 276 A.D.2d 152, 155 [4th Dept. 20003 (“attorneys who perform services for and on behalf of a union may not
be held liable in malpractice to individual grievants where the services performed constitute part of the collective bargaining process.. .. Plaintiff is limited to bringing an action against the union for breach of the duty of fair representation.”).

Legal Malpractice insurance companies have two big exclusions.  One is late notice of a claim and the other is acts outside the policy coverage.  Late notice is a constant danger to the insured.  Carriers take the position that as soon as the attorney knows there has been a mistake he is obligated to tell the carrier.  Insureds take the position that if they tell the carrier as soon as they are served with a complaint, it is early enough.  The cases run between the two extremes.

Here, however, in K2 Inv. Group, LLC v American Guar. & Liab. Ins. Co. ; 2012 NY Slip Op 00001
Decided on January 3, 2012 ; Appellate Division, First Department  we see both bad faith and exclusions.  They do not work out to the carrier's benefit.
 

"Plaintiffs are limited liability companies that made multiple loans totaling approximately $3 million to nonparty Goldan, LLC of which defendant's insured, Jeffrey Daniels, an attorney, was a member. In the legal malpractice action underlying this action, it was alleged that as attorney for plaintiffs, Daniels undertook to record mortgages in plaintiffs' favor to secure those loans, and to obtain title insurance, and that he failed to do so, rendering plaintiffs' investments unsecured. Goldan became insolvent and never made any payments on the loans. The legal malpractice action alleged that as a consequence of Daniels's negligent failure to record the mortgages or obtain title insurance, plaintiffs did not have security in the mortgaged properties, and the promissory notes evidencing the loans became uncollectible.

Plaintiffs demanded $450,000 from Daniels in full settlement of their claims. This amount was well within the $2 million aggregate and $2 million per-claim limits of the lawyers professional liability insurance policy issued to Daniels by defendant. However, defendant disclaimed its duty to defend or indemnify based upon two exclusions in the policy. One exclusion was for claims based upon or arising out of the insured's capacity or status as an officer, director, etc., of a business enterprise. The other exclusion was for any claim arising out of the alleged acts or omissions of the insured for any business enterprise in which he had a controlling interest.

After Daniels failed to appear in the malpractice action, a default judgment was entered against him in the amounts of $2,404,378.36 in favor of plaintiff K2 and $688,716.00 in favor of plaintiff ATAS. Daniels then assigned to plaintiffs all his claims against defendant, including bad faith claims. [*2]

Having disclaimed its duty to defend its insured in an action that culminated in a default judgment, defendant "cannot challenge the liability or damages determination underlying the judgment" (Lang v Hanover Ins. Co., 3 NY3d 350, 356 [2004]). Nor can it raise defenses to plaintiffs' claim against Daniels including the applicability of any asserted policy exclusions (Lang at 356).

 

"To be relieved of its duty to defend on the basis of a policy exclusion, the insurer bears the burden of demonstrating that the allegations of the complaint in the underlying claim cast the pleadings wholly within that exclusion, that the exclusion is not subject to any other reasonable interpretation, and that there is no possible factual or legal basis upon which the insurer might be eventually obligated to indemnify its insured (citations omitted)" (Utica First Ins. Co. v Star-Brite Painting & Paperhanging, 36 AD3d 794, 796 [2007]). No material issue of fact exists as to whether the allegations of plaintiffs' legal malpractice claims are based, even in part, upon Daniel's acts or omissions in his capacity as an officer, director, etc., of a business enterprise or any acts or omissions for a business enterprise in which he had a controlling interest, so as to bring them within either of the exclusions invoked by defendant (id). Rather, the allegations of legal malpractice were focused solely on Daniels's negligence as plaintiffs' counsel. "

Sometimes a case reads like a movie script or a Grisham novel.  People v Wlasiuk ; 2011 NY Slip Op 09544 ; Decided on December 29, 2011 ; Appellate Division, Third Department  reads like one. In reading the case a thought flitted across our mind...could reversible error intentionlly be built in to a case?

 
"Defendant was convicted in 2003 of the crime of murder in the second degree in connection with the death of his wife (hereinafter the victim), whose body was found next to defendant's submerged pick-up truck at the bottom of Guilford Lake. Defendant was present at the scene and, when the ensuing investigation both contradicted his version of the events and revealed evidence suggesting that he had killed the victim at their home and then staged a motor vehicle accident, police became suspicious. Upon defendant's appeal from his judgment of conviction, this Court concluded that "the cumulative effect of a litany of errors deprived defendant of a fair trial" and, therefore, we reversed (People v Wlasiuk, 32 AD3d 674, 675 [2006], lv dismissed 7 NY3d 781 [2006]). Following remittal, County Court granted defendant's motion for dismissal of the original indictment. "

On the second trial, a second reversal for ineffective assistance of counsel.  "We agree with defendant, however, that reversal is nonetheless required because he received ineffective assistance of counsel. Specifically, counsel — without a reasonable strategy — (1) failed to join in the prosecutor's request that juror No. 5 be discharged for cause once it became clear that the juror had committed misconduct in obtaining his seat on the jury, and (2) introduced evidence that this Court previously held to be unduly prejudicial, inadmissible hearsay.

With respect to the juror, when the names of potential witnesses were read during jury selection, juror No. 5 indicated that he knew Joyce Worden — defendant's paramour, who was also the baby-sitter for the couple's young children — as a patient in his podiatric medical practice. He expressly denied knowing any other witnesses. Juror No. 5 further maintained that he could be fair despite his prior professional relationship with Worden. He stated that he did not "even know much about the [first] trial," because he had recently moved to the area and had been busy with his medical practice and child-rearing at the time. He was then sworn as a juror and excused for the day.

During the lunch recess that immediately followed, the lead police investigator in the case, Lieutenant James Lloyd, informed the People that juror No. 5 had been interviewed by police at the time of the victim's death. The interview with Detective Gerald Parry — whose name was also read to juror No. 5 from the potential witness list and who ultimately testified at trial — was written up in the police lead sheet, which the People read into the record. The lead sheet indicated that juror No. 5 had informed police that he knew the victim, had worked with her at a hospital, had heard nurses discussing the victim's "problem with her husband," and referred police to other hospital employees who had further information about defendant's prior violent acts towards the victim. In response to this information, the People and County Court were indifferent regarding whether juror No. 5 should remain. Defense counsel, however, adamantly resisted the discharge of juror No. 5, stating:

"I'm not going to pick a jury and have [Lieutenant] Lloyd decide he doesn't like somebody on the jury or he interviewed [*4]somebody . . . I don't want [Lieutenant] Lloyd to find out who the jurors are and then decide that he's not happy with one of them and come up with a reason to have that juror disqualified."

The next day, following completion of jury selection but before the jury was given preliminary instructions, defense counsel advised County Court that he had been contacted by Worden, who had been a witness for the defense during the first trial. Worden told counsel that juror No. 5 had a conflict inasmuch as, while treating her as a patient, he had asked her many questions about the case. Although defense counsel asserted that he liked jurors who asked questions and wanted juror No. 5 to remain on the jury, County Court became concerned that the juror had not been forthright during voir dire. In addition, the People expressed grave doubts about the fitness of juror No. 5, stating that "his calling the police and being involved in the investigation and his failing to disclose that [fact] . . . has demonstrated that he is highly unqualified . . . to be a juror in this particular matter." Essentially, the People requested that the juror be dismissed for cause — as grossly unqualified under CPL 270.35 (1) — and claimed that they would have exercised a peremptory challenge against the juror had this information come to light when peremptory challenges remained available.^[FN2]

During an in camera inquiry, juror No. 5 revealed that he had treated defendant's children after the first trial, but had not mentioned the relationship because the children were not named on the witness list. Although the juror initially indicated that he did not recall speaking to police about the case, he eventually admitted that he had been interviewed by Parry after the court informed him that the police lead sheets described the interview. The juror stated, however, that he had no "real affiliation with" the victim and had no information for police. In addition, the juror denied asking Worden questions about the case, explaining that she started to discuss it with him, but he steered the conversation back to her medical condition. The juror then swore that he could remain fair and impartial, and County Court did not discharge him.^[FN3]

Defendant now argues that County Court committed reversible error in failing to dismiss juror No. 5 when it became clear that the juror was grossly unqualified under CPL 270.35 (1). Pursuant to that statute, "[a] sworn juror must be discharged when facts come to light, which were not known at the time the jury was empaneled, indicating that the juror is 'grossly unqualified to serve'" (People v Harris, 99 NY2d 202, 212 [2002], quoting CPL 270.35 [1]). In determining whether the sworn juror is "grossly unqualified," the court must, "[i]n a probing and tactful inquiry, . . . evaluate the nature of what the juror has seen, heard, or has [*5]acquired knowledge of, and assess its importance and its bearing on the case" (People v Buford, 69 NY2d 290, 299 [1987]). This test is more stringent than that used in resolving a for-cause challenge. While, under CPL 270.20 (1) (b), a challenge for cause is permissible when a prospective juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial" (emphasis added), a sworn juror may be discharged as grossly unqualified over a defendant's objection "only when it becomes obvious that [the] particular juror possesses a state of mind which would prevent the rendering of an impartial verdict" (People v Buford, 69 NY2d at 298 [internal quotation marks and citation omitted] [emphasis added]). "

Architectural malpractice follows the same rules as legal malpractice.  Duplicitive pleadings are not permitted, and will be dismissed.  As we discussed yesterday in Beck v Studio Kenji, Ltd.
2011 NY Slip Op 33470(U); December 21, 2011; Sup Ct, NY County; Docket Number: 108995/09
Judge: Louis B. York one might plead 10 claims, only to have them cut to the basic breach of contract and malpractice.

"Recovery in quasi-contract ordinarily is precluded “when a valid and enforceable written contract” governs the specific subject matter (Clark-Fr‘Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 656 [1987](Clark-Fitzpatrick)). Only where there is no express contract or where the validity of the contract is at issue is a quasi-contract theory possible, If there is no contract or an unenforceable agreement, the Court may find that a quasi-contact exists to prevent unjust enrichment (Clark v. Fitzpatrick,, 70 N.Y.2d 382,389, 521 N.Y.S.2d 653,656 [1987]). Here, neither party questions that a contract exists. Moreover, plaintiff bases his unjust enrichment claim on the contract itself. Therefore, an independent quasi-contract claim cannot exist and the
claim is not legally viable. "

"Next, defendants state that the fourth cause of action for breach of implied covenant of good faith and fair dealing is not viable against Studio Kenji because it is based on the same facts as the breach of contract claim. Defendants are correct. Under New York law, parties to an express contract are bound by an implied duty of good faith, but breach of that duty is merely a breach of the underlying contract (Panasia Estates, Inc. v. Hudson Ins. Co., 68 A.D.3d 530, 530,889 N.Y.S.2d 452,453 [lst Dept 20091). Accordingly, a claim for breach of the implied covenant is dismissible as redundant if it arises under the same facts which form the basis for the breach of contract claim (Constar v. JA. Jones Const. Co., 212 A.D.2d 452,453,622 N.Y.S.2d 730,73 1 [1st Dept
19951). The court therefore dismisses the fourth cause of action as well. Turning to the fifth cause of action for breach of fiduciary duty, defendants argue that the claim is redundant of the malpractice claim and therefore they seek the same relief. Defendants are correct when they state that the claims are duplicative. New York courts have consistently held that a breach of fiduciary duty claim that is premised on the same facts as the legal malpractice cause of action, is redundant and should be dismissed (E.g., Murray Hill Investments, Inc. v. Parker Chapin Flatow & Kimple, LLP 305 A.D.2d 228,229,759 N.Y.S.2d 463,464 [l” Dept 20031; Turk. Angel, 293 A.D.2d 284,284, 740 N.Y.S.2d 50, 58 [l” Dept 2002)."

Finally, defendants argue that the this Court should dismiss the cause of action, for gross negligence. Gross negligence, as both parties state, is “conduct that evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing,” (Sommer v. Federal Signal Corp., 79 N.Y.2d 540,554,583 N.Y.S.2d 957,593 N.E.2d 1365). “It is conduct that evinces a reckless indifference to the rights of others,” (id.). Whether defendants’ conduct rises to this level of culpability is a question of fact. The failure to meet applicable building and fire safety codes, as well as DOB rules and regulations during construction could arguably constitute gross negligence in light of the potentially serious consequences thereof, both financially and in creating a risk of injury to plaintiff and other residents of the building. This is a question to be resolved by a jury
and it would therefor be inappropriate to dismiss the cause of action.

Just as in Legal malpractice, so professional malpractice has its pleading rules.  In Beck v. Studio Kenji;  2011 NY Slip Op 33470(U) ; December 21, 2011; Sup Ct, NY County; Docket Number: 108995/09 ;Judge: Louis B. York we see the Court reducing the variety of claims to a contract and a negligence claim. 

" In this action, plaintiff Andrew Beck III (Beck) sues defendants Studio Kenji (Kenji), Justin Miyamoto Weiner (Weiner), and Ellen Honigstock (Honigstock), alleging eight causes of action including breach of contract, negligence, breach of fiduciary duty, and professional malpractice. Plaintiff states that as a result of defendants' gross mismanagement of its architectural and reconstruction project and corresponding failure to investigate New York City rules, regulations, and codes, plaintiff was forced to deconstruct nearly all work performed during defendants' three-plus years on the project, and rebuild large portions of the apartment to satisfy the requirements of the building code so the building could maintain its temporary certificate of occupancy.

The following facts of the case are undisputed:   Plaintiff purchased Unit PH7/8N,eighth and rooftop floors at 169 Hudson Street around August of 2004. Plaintiff retained Weiner on behalf of Kenji, a high-end Manhattan interior design and consulting firm, to plan and design the interior and various other elements of plaintiffs apartment, and to serve as manager, consultant, and designer for the apartment’s construction. Plaintiff and Weiner, on behalf of Kenji, subsequently agreed upon a
comprehensive eight-page design and consulting agreement (the retainer agreement). The retainer agreement stated that Kenji and Weiner would design and prepare drawings and architectural plans, file the plans with the New York City Department of Buildings (DOB), and obtain all necessary approvals for the build out. The initial sketches included the removal of a section of the separation between the existing seventh and the newly constructed eighth floors to create a double-height space and the addition of a catwalk connecting both ends of the apartment. The final architectural plans, including the above elements, were filed with the DOB.From 2004 through early 2008, plaintiff alleges, he paid in excess of one million dollars to defendants in connection with their work on the project. On or about October of 2007, with work at a standstill, plaintiffs interior designer and his project contractor each advised him to retain a new, independent architect. Plaintiff hired a new architect to review the status of the project and formally terminated defendants in early 2008. In March 2008, plaintiffs new architect inspected the construction that had
occurred and determined that many aspects of the apartment’s design, including but not
limited to the double height space and the catwalk, failed to meet both the industry
standards and the DOE! fire and safety codes and regulations. The new architect created a
plan to remedy the problems without deconstructing the original work. However, the DOB rejected the plan and, as a result, deconstruction of defendants’ work was necessary. Subsequently, plaintiff commenced this action."

"Defendants’ basis for dismissal of the claims asserted against Weiner is that the contract in question was with Kenji, not Weiner, and plaintiff retained Kenji to provide services regarding the interior spaces and roof decks for plaintiff’s apartment, with Honigstock as the architect of record for the project. As defendants argue, under New York law “persons may not be held liable on contracts of their corporations, provided they did not purport to bind themselves individually under such contracts.’’ (Wiernik v. Kurth, 59 A.D.3d 535, 537, 873 N.Y.S.2d 673,675-76 [TdDe pt 20091). Here, Weiner signed the retainer agreement in his capacity as an officer of Studio Kenji (Plaintiffs
exhibit C), rather than in his individual capacity. Nor does plaintiff raise an issue of fact as to whether Weiner held himself out as individually responsible for the work in question. Accordingly, as defendants assert, Weiner cannot be held liable for the alleged breach of contract .

We'll discuss the further dismissals tomorrow.

We'd like to take this chance to thank our readers for this year and to wish a very good year to all.  If you just can't get enough legal malpractice, take a look at our article in the New York Law Journal from this week.  The Nuts and Bolts of Legal Malpractice.  See you soon.

Continuing the trend towards a combination of bankruptcy and legal malpractice, we note that bankruptcy follows, and rarely precedes legal malpractice situations, hence, we expect a swell of the intersection following the financial down-trends of the past year. Here, Tabner v Drake
2009 NY Slip Op 10006; ; Appellate Division, Third Department is an example of how settlement of an underlying case is handled in Bankruptcy Court, even when the attorneys seeking their fee have nothing to do with the bankruptcy. Apparently, individual Drake had carved out a portion of the settlement that was then taken away from him by the Bankruptcy Court, and as a result he would not sign a stipulation and release so that the law firm which had produced the settlement sums might get paid.
 

"In 1998, plaintiffs commenced an action to recover legal fees for services allegedly rendered to defendant Ralph H. Drake Jr.'s residential and commercial real estate business — defendant RHD Construction Corporation. In response, Drake and RHD asserted negligence and malpractice counterclaims against plaintiffs. Multiple pretrial proceedings ensued (see e.g. Tabner v Drake, 9 AD3d 606 [2004]) and, in 2001, Drake filed for bankruptcy under chapter 7 of the Bankruptcy Code.

Shortly after the start of trial, the parties entered into a stipulation of settlement in open court which, among other things, contemplated the exchange of general releases from the parties with respect to all aspects of the litigation. The parties acknowledged that the Bankruptcy Court's approval of the settlement was required and, in November 2007, the Bankruptcy Court issued an order approving the settlement and authorizing the bankruptcy estate's trustee to execute general releases in accordance therewith, specifically authorizing the payment of $50,000 to plaintiffs by the trustee. Nevertheless, citing purported inconsistencies between the actual [*2]terms of the settlement and the "Bankruptcy Court approval relative to the amounts to be paid to each defendant," Drake and RHD refused to execute their respective releases. Consequently, plaintiffs moved in Supreme Court for an order directing that defendants execute the releases called for within the agreement and enforcing the stipulation of settlement. Supreme Court granted the motion, prompting this appeal. "

"Accordingly, although the parties agreed to a total settlement of $350,000, with $50,000 going to plaintiffs, $295,000 to RHD and $5,000 to Drake, the Bankruptcy Court properly observed that the bankruptcy estate was the "legal and equitable owner of the litigation whether through [Drake] directly or as the sole shareholder of RHD" (see 11 USC § 541). Its resultant order — that $50,000 be tendered to plaintiffs and $300,000 be tendered to the bankruptcy trustee — thus adequately reflects the terms and conditions of the settlement. In view of the foregoing, we find no reason to disturb Supreme Court's order."

Attorney fees and legal malpractice should have nothing to do with each other. However, the general rule is that no legal fees may be awarded in the face of legal malpractice and its corollary is that if legal fees are awarded by a court or tribunal, then there could have been no legal malpractice, whether the issue is briefed or not.

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)."

"The defendants Alisa Schiff and Schiff & Skurnik, PLLC (hereinafter together the Schiff defendants), who served as the plaintiff's attorney with respect to the drafting, and the execution by the plaintiff, of a contract to sell her home (hereinafter the contract of sale), and the defendant Michael Gross, who served as the plaintiff's attorney for the related real estate closing, failed to meet this burden. Contrary to the Supreme Court's conclusion, the Schiff defendants and Gross failed to demonstrate, prima facie, that the plaintiff did not sustain any actual or ascertainable [*3]damages as a result of their alleged negligence. The contract of sale provided that the purchase price of the plaintiff's home was $615,000, with the plaintiff to credit the purchaser with the sum of $155,000 at the closing. Approximately $241,000 of the proceeds of the sale went to satisfy the plaintiff's mortgage, and the plaintiff received approximately $216,000. The Schiff defendants and Gross failed to eliminate triable issues of fact as to the propriety of the $155,000 credit to the purchaser and other disbursements made of the proceeds, and thus, as to whether the plaintiff should have obtained more money for the sale of her home than she received. "  So, in Gelobter v Fox ;2011 NY Slip Op 09268 ; Decided on December 20, 2011 ; Appellate Division, Second Department we see that both sets of defendants failed to clear themselves of potential liability. 
 

"The Schiff defendants failed to meet their prima facie burden on the issue of proximate cause, as they merely established, in this respect, that they did not participate in the real estate closing. However, this fact did not negate any negligence on their part in the drafting of the contract of sale, which the plaintiff signed under Schiff's representation, and in connection with alleged alterations made to the purchase price on the contract prior to the real estate closing. In other words, as the contract of sale had already been signed and altered before the real estate closing, contrary to the Schiff defendants' contention, they did not establish as a matter of law that Gross had "a sufficient opportunity to protect the plaintiffs' rights" (Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641), such that Schiff's conduct could not have proximately caused the plaintiff's damages. "

Broadway investors often take a big chance.  they put up large sums of money in the hope that the show will be a big hit.  Sometimes the show fails, and sometimes the show closes before it opens.  Here plaintiff-investor lost $ 100,000 right off the bat.  Then there was a legal malpractice case over who owned the rights to the Show.  Worse, he loaned $ 100,000 to an attorney, and the attorney was playing with him.

COREY FRIEDMAN, Plaintiff, -against- MARK SCHWARTZ, Defendant.;CV 08-2801 (WDW)  UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 144925December 16, 2011 is an otherwise straight-forward story of a contract and the denouement. 

"Plaintiff was introduced to Defendant by Auslander. Trial Transcript ("Tr.") at 4. Defendant was a Broadway producer who was putting together a show to be named "Harmony [*3] on Broadway." Tr. 4. Auslander thought Plaintiff would be interested in investing. Id. Plaintiff met with Defendant in summer 2003 at Sardi's restaurant in Manhattan. Tr. 5. Prior to that meeting, Defendant had called Plaintiff to discuss the show, explaining that Barry Manilow had written the music for it, and Barry Sussman had written the book. Tr. 5. Plaintiff and Defendant had another meeting a few weeks later during which Plaintiff introduced Defendant to a colleague who also expressed an interest in investing. Tr. 6.

In late September of 2003, Plaintiff invested $100,000 in Harmony on Broadway LLC. Tr. 6. The funds were wired through Auslander to an account for Harmony on Broadway LLC at JP Morgan Chase, located at 3 Times Square, New York, New York. Tr. 8. He then received a packet in the mail showing him to be a limited partner in the LLC. Tr. 8. Plaintiff's ultimate return would be determined by the show's profits and the final number of investors. Tr. 9.

Defendant solicited additional monies from Plaintiff. Tr. 6. According to Plaintiff, Defendant was anticipating funding from Barry Manilow's record company, Concord Records, and was looking for investors to provide short-term [*4] loans until that money came in. Tr. 9-10.

Plaintiff alleges that, on October 3, 2003, he made a loan of $100,000 to Defendant. Tr. 36. According to Plaintiff, Defendant requested the loan as a short-term, personal loan until other investments were received. Tr. 10. Plaintiff testified that Defendant was willing to provide a lien on his residence in Florida to secure the loan and provide Plaintiff with ten percent interest over the life of the loan. Id. According to Plaintiff, Defendant's girlfriend, a Florida attorney, would draft the security document for the loan. Tr. 11. Defendant claimed that he had provided a similar security document for a larger investment and would do the same for Plaintiff. Id.

Similar to the money-transfer process for the investment in the play, the funds were wired from Auslander to an account for Harmony on Broadway LLC. Tr. 13. Plaintiff testified that Defendant needed the money right away to keep the show in business and that time was of the essence. Tr. 13, Tr. 15. Auslander testified that the money was wired to an account for Harmony on Broadway LLC in the interests of time, due to the protocols of Charles Schwab and Company requiring three to five business [*5] days to set up wiring instructions for a new account. Tr. 48. According to Auslander, Defendant would not have accepted anything but a personal loan at the time the second investment was made because Defendant did not want to dilute his interest in the production by selling additional units to investors. Tr. 46-47. Furthermore, Auslander stated that Defendant told him that he was "incredibly relieved and very thankful" for the personal loan and admitted to him that Plaintiff "bailed him out and bellied up to the bar." Tr. 49.

On October 27, 2003 Plaintiff emailed Defendant inquiring why he had not yet received the document securing the "$100,000 personal loan that [Defendant] guaranteed with [his] home as collateral." Plaintiff Exhibit ("P. Ex.) 7. Defendant responded to Plaintiff on October 27, 2003 stating, "I agree with you corey [sic], and called you this morning, left a message at yor [sic] home and on your cell, I'll take care of it, promise and sorry you have been great! and you have my word, which is most important." P. Ex. 8. Plaintiff never received legal documentation securing the loan nor any documentation evidencing that the loan was a corporate debt. Tr. 17-18.

Defendant [*6] failed to secure financing from Concord Records and the show closed before it was opened. Tr. 18. Plaintiff, like the other investors in the production, lost his $100,000 investment in the show without recovering any money. Tr. 18-19. Plaintiff testified that subsequent to the show closure, Barry Manilow and Bruce Sussman commenced litigation to secure their rights to the show and succeeded in securing those rights. Tr. 19. The producers and investors of the show then sued to win those rights back from Manilow and Sussman, but their claims were denied because they were not filed on time. Tr. 19-20. Subsequently, a legal malpractice suit was commenced by the producers against their former attorney, Robert Barandes. Tr. 20. Plaintiff testified that Defendant acted as a "conduit" between the lawyers and the investors throughout the litigation. Id."
 

Plaintiff retained defendant to represent him in a matrimonial action.  In the end, he was just too poor to get divorced.  The divorce action ended in a settlement, and the marriage remained intact.  Now, plaintiff husband sues attorney, and is defeated by documentary evidence that completely contradicts plaintiff's position and is successful on motion to dismiss.

Faath v Roth ;2011 NY Slip Op 33366(U); December 12, 2011 ;Supreme Court, Nassau County
Docket Number: 003912/11; Judge: Joel K. Asarch.

"The plaintiff in this action seeks to recover damages for legal malpractice. As and for his first cause of action, he alleges that he retained the defendant to represent him "in connection with
a matrimonial matter" and that the defendant "failed to properly represent (him)." He alleges that
as a result of the defendant's malpractice , he "is still married" and that he "was pressured by the
defendant into executing an agreement with his wife which the defendant failed to explain to him
and which is of doubtful enforceability. " He seeks damages in the minimum amount of $1 00 000.
As and for his second cause of action, he alleges that the defendant's charges were excessive and that he billed for work not performed. He seeks damages of a minimum of $40 000.

The only damages alleged by the plaintiff is that he is "still married." To baldly equate remaining married" with damages is inappropriate and unacceptable. The plaintiff s failure to plead actual ascertainable damages which were proximately caused by the alleged malpractice requires dismissal of a legal malpractice claim under CPLR 3211 (a)(7). Wald v Berwitz 62 AD3d 786 (2
Dept 2009), citing Rudolf v Shayne. Dachs. Stanisci. Corker & Sauer, 8 NY3d 438 442 (2007);
Cummings v Donovan, 36 AD3d 648 (2 Dept 2007).

In any event, the defendant lawyer cannot be faulted for the plaintiff s continued marred status. The Settlement Agreement which was signed by the plaintiff precludes such a finding. It provides:
Each party has had a full opportunity and has consulted at length with his or her attorney regarding all of the circumstances hereof and acknowledge that this Agreement has not been the result of any fraud, duress or undue influence exercised by either party upon the other or by any other person or persons upon the other.  More importantly, the plaintiff signed a detailed letter by counsel dated June 19 2008 which provides that the terms of the Separation Agreement were negotiated by him and he has required  that  they be included in it; that he realized he will continue to be married; that it is his desire that the divorce action be discontinued so that he could live under the terms of the Agreement; and that he had advised counsel that "it is not economically feasible for (him) to be divorced. " It further notes that the Separation Agreement is very risky as it relies too much on the parties ' good faith; that it may not be enforced in court; and, that it is a product of his and his wife s negotiations with little legal input. In sum, the letter by the defendant attorney states:

I have attempted to do my best within the parameters and guidelines you have set. However, you have precluded me from attempting to fully protect you under the terms of this agreement. I have done all possible within those guidelines and parameters. You have limited the amount of negotiation and you are satisfied with the terms of the agreement as they are presently written.
I have given you every opportunity to review this agreement in detail and to ask any questions you desire. You have had the opportunity to review this agreement and ask the questions and had sufficient time to digest the terms of this agreement, it is my understanding from speaking to you, that you have fully read the agreement.  If you have any questions, now is the time to ask prior to executing this agreement, which will be binding upon you and your spouse.  The plaintiff acknowledged as follows: I have read the separation agreement and I am familiar with the terms. I am executing same voluntarily and under no duress and over the advice of my  counsel as set forth in this letter. In a follow-up letter by the defendant lawyer dated December 8, 2008 which was again
signed by the plaintiff, counsel cautions that contract law, not the Domestic Relations Law, would
apply to the agreement and warned that there was no telling what a court would do if called upon to
enforce some of the provisions. In sum, the defendant lawyer warned:  You have expressed your willingness to settle this matter under the terms of the  agreement. Although, I disagree with many of the terms contained therein, you still wish to proceed under the terms of the settlement agreement as written. Settling this matter just to settle is not the right choice. However, based upon
your desire to settle under the terms as written, I will permit you to execute the  agreement over my objection. In combination with the Settlement Agreement, the letters submitted by the defendant
attorney which were signed by the plaintiff flatly refute any claim by him that he remained married
or was otherwise damaged on account of the defendant' s negligence. See Malarkey v Piel supra

It is said that problems, or bad things, come in threes. In this example, the client lost a contract action, in which he had good counterclaims, because of his attorney's failures. Plaintiff then sues the attorney, and in Benson Park Assoc., LLC v Herman ; 2010 NY Slip Op 03847 ;Decided on May 6, 2010 ;Appellate Division, First Department the defendant attorney defaulted on an answer. Then, the attorney for defendant apparently defaulted on the motion for partial summary judgment itself.
"In the underlying action, defendant failed timely to file an answer on behalf of plaintiff, and a default judgment was entered against it (Mega Constr. Corp. v Benson Park Assoc. LLC, 60 AD3d 826 [2d Dept 2009]).

A party seeking to vacate a judgment on the basis of excusable default must demonstrate both a reasonable excuse and a meritorious defense (Mutual Mar. Off., Inc. v Joy Const. Corp., 39 AD3d 417, 419 [2007]). The court properly denied defendant's third request for an adjournment of plaintiff's motion for
partial summary judgment (see Matter of Desmond K. v Kevin K., 59 AD3d 240 [2009], lv denied 12 NY3d 711 [2009]; Treppeda v Treppeda, 212 AD2d 592 [1995]). While in support of the motion to vacate the default, defendant claimed that he had had a "previously scheduled engagement," he offered nothing to substantiate this claim. Moreover, at no time after the motion for partial summary judgment was submitted did defendant seek leave to submit opposition. In addition, defendant failed to offer a meritorious defense to the malpractice claim, other than to question the amount of damages. "

PROTOSTORM, LLC and PETER FAULISI, Plaintiffs, -against- ANTONELLI, TERRY, STOUT & KRAUS, LLP, DALE HOGUE, FREDERICK D. BAILEY, CARL I. BRUNDIDGE, and ALAN SCHIAVELLI, Defendants/Third-Party Plaintiffs, -against- KATHY WORTHINGTON, Third-Party Defendant/Cross-Claimant, -against- DUVAL & STACHENFELD LLP and JOHN J. GINLEY, III, Third-Party Defendants/Cross-Defendants is the story of attorneys taking on work, and then blithly going about their day, placing payment of bills before working for the client. 
 

Plaintiffs had what they believed to be a very valuable invention, and hired a series of attorneys to file and follow up on the patents.  The process ended in failure.  "Plaintiff Peter Faulisi ("Faulisi") along with non-party Courtland Shakespeare ("Shakespeare") wanted to market and patent an invention they believed would be very valuable through their company Protostorm.com, LLC ("Protostorm").2 They enlisted the help of several lawyers—the Defendants and Third-Party Defendants. As a result of some combination of negligence and miscommunication the patent application was abandoned. Plaintiffs, invoking the court's diversity jurisdiction, bring claims for legal malpractice and breach of fiduciary duty."

This 25 page opinion is well worth reading, if only for the description of cavalier behavior, refusal to do work until the last bill is paid, and a general sense of entitlement that wafts from the page.  It ends:

"For the reasons stated above, Defendants' motion for summary judgment is GRANTED as to Plaintiffs' breach [*57] of fiduciary duty claim but DENIED as to Plaintiffs' malpractice claim. Plaintiffs' motion for summary judgment as to certain elements of its malpractice claim is GRANTED, as set forth above. Third-Party Defendants' motions for summary judgment are GRANTED as to Third-Party Plaintiffs' indemnification claims, but DENIED as to Third-Party Plaintiffs' contribution claims. Similarly, D&S's and Ginley's motion for summary judgment as to Worthington's indemnification claims are GRANTED, but summary judgment is DENIED as to Worthington's contribution claim. In sum, malpractice claims against the Defendants and Third-Party Defendants, in connection with the abandonment of Plaintiffs' patent application, shall go forward."

This US District Court case explores the boundary between civil and criminal matters, and how representation in both is parsed during a later legal malpractice case.  ALLEN WOLFSON, Plaintiff, -against- CHRISTOPHER BRUNO, Defendant;  08 Civ. 0481 (AJP); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 144978;  December 16, 2011.

"Wolfson contacted attorney Bruno3 in October 2002 and formally retained his legal services on October 24, 2002 for his criminal case, United States v. Wolfson, 00 Cr. 0628, known as the "Five Stock Indictment" case. (Bruno Rule 56.1 Stmt. ¶¶ 1-2;4 Bruno Aff. ¶¶ 7-8, 10 & Ex. A: Rep. Agreement.) Wolfson was convicted by a jury on all counts in March 2003. (Bruno Rule 56.1 Stmt. ¶ 3; Bruno Aff. ¶ 11.)

On May 30, 2003, Wolfson and Bruno entered into a second representation agreement "intended for the resolution of these additional matters by way of a global settlement in order to minimize ultimate criminal and civil exposure." (Bruno Rule 56.1 Stmt. ¶¶ 4, 7-10; Bruno Aff. ¶¶ 15-19 & Ex. B: 2d Rep. Agreement.) The "additional matters" were: (1) United States v. Wolfson, 02 Cr. 1588 [*5] ("Freedom Surf Indictment"), an unrelated criminal stock fraud case before Judge Hellerstein in this District; (2) an unrelated criminal stock fraud investigation conducted by the U.S. Department of Justice's Criminal Fraud Unit in Washington, DC ("DOJ Investigation"); (3) In re Wolfson, Securities Act Release No. 8614, Exchange Act Release No. 52480 (Sept. 21, 2005) ("SEC-AP"), an administrative proceeding, parallel to the Five Stock Indictment case, before the SEC in Washington, DC; and (4) SEC v. Wolfson, 02 CV 1086 ("SEC-Utah"), a civil case in U.S. District Court for the District of Utah, parallel to the Freedom Surf Indictment criminal case. (Bruno Rule 56.1 Stmt. ¶¶ 5, 9; Bruno Aff. ¶¶ 15, 18 & Ex. B.) The second representation agreement stated:
It is agreed and understood that representation by the firm pursuant to this Representation Agreement does not include the trial of any of the above-referenced matters. It is further agreed that, if for some unforseen reason any of these matters were to proceed to trial, a new retainer would have to be agreed upon.
(Bruno Aff. Ex. B: 2d Rep. Agreement.)

In the Freedom Surf Indictment case, in June 2003 Bruno offered that Wolfson would cooperate [*6] with the Government against the remaining defendants. (Bruno Rule 56.1 Stmt. ¶ 15; Bruno Aff. ¶¶ 23-25.) Wolfson and Bruno attended a Kastigar session with Assistant United States Attorneys (AUSA) David Esseks and Robert Holtz and the lead FBI agent, and Wolfson detailed his and others' involvement. (Bruno Rule 56.1 Stmt. ¶ 15; Bruno Aff. ¶¶ 24-25.) On January 21, 2004, Wolfson formally entered a guilty plea. (Bruno Rule 56.1 Stmt. ¶ 16; Bruno Aff. ¶ 26.) In February 2004, the Freedom Surf Indictment criminal case was consolidated with the Five Stock Indictment case for comprehensive sentencing before Judge Koeltl. (Bruno Rule 56.1 Stmt. ¶¶ 6, 17; Bruno Aff. ¶¶ 14, 27 & Ex. C: Bruno 2/9/04 Letter to Court.)

Throughout 2003 and into 2004, Bruno interceded with the federal prosecutors resulting in the DOJ Investigation being dropped without Wolfson being indicted. (Bruno Rule 56.1 Stmt. ¶ 18; Bruno Aff. ¶ 28.)

In the SEC-AP case, Wolfson agreed to settle with the SEC in June 2005, and the Order was filed on September 21, 2005. (Bruno Rule 56.1 Stmt. ¶¶ 21, 23; Bruno Aff. ¶¶ 31-33, 35-36, 38-39 & Ex. F: SEC Settlement Order.) In the settlement, Wolfson agreed to a consent decree that neither [*7] admitted nor denied the underlying civil allegations, the SEC waived all aspects of a monetary judgment due to Wolfson's inability to pay, and Wolfson agreed to conduct-related bars with a right to reapply for removal in the future. (Bruno Rule 56.1 Stmt. ¶ 22; Bruno Aff. ¶¶ 33-38 & Ex. F: SEC Settlement Order ¶ IV.)

In the SEC-Utah case, Bruno alleges that he negotiated a settlement similar to that in the SEC-AP case. (Bruno Rule 56.1 Stmt. ¶¶ 29-30; Bruno Aff. ¶¶ 41-42.) Bruno alleges that he kept Wolfson apprised of the settlement discussions and that Wolfson authorized Bruno to accept the settlement offer. (Bruno Rule 56.1 Stmt. ¶ 31; Bruno Aff. ¶¶ 43-44.) Wolfson, however, alleges that Bruno never communicated the SEC's settlement offer to him. (Dkt. No. 48: Wolfson Opp. Br. at 2, 3.)

Meanwhile, in September 2005, Wolfson sent a letter to Avraham Moskowitz, his former counsel in the Five Stock Indictment case, asserting that Bruno and Moskowitz were conspiring with the prosecutors to secure his convictions in the consolidated criminal cases. (Bruno Rule 56.1 Stmt. ¶ 32; Bruno Aff. ¶¶ 45-46; Wolfson Opp. Br. at 3-4.) Moskowitz forwarded Wolfson's letter to Bruno and to AUSA Esseks, [*8] who forwarded it to Judge Koeltl. (Bruno Aff. ¶ 45 & Ex. H: Bruno 9/9/05 Letter to Court; Wolfson Opp. Br. at 4.) Judge Koeltl appointed Nancy Ennis to serve as Wolfson's Curcio counsel; she informed Judge Koeltl that Wolfson maintained his conspiracy theory even though she was unable to discern a basis for the allegations. (Bruno Aff. ¶¶ 47-48; Wolfson Opp. Br. at 4.) Recognizing an inherent conflict of interest in further representation, Judge Koeltl appointed James Cohen to represent Wolfson in the consolidated criminal cases on September 21, 2005 and relieved Bruno as Wolfson's counsel. (Bruno Rule 56.1 Stmt. ¶ 33; Bruno Aff. ¶¶ 48-49; Wolfson Opp. Br. at 4.) Wolfson asserts that Bruno was dismissed because he was violating his fiduciary duty due to the alleged conspiracy. (Wolfson Opp. Br. at 1.) Moreover, Wolfson alleges that he "never terminated his relationship with [Bruno] when [he] put forth his conspiracy theory to judge [sic] Koeltl." (Wolfson Opp. Br. at 2.)"
 

"Wolfson presents no facts giving rise to an inference that Bruno committed legal malpractice. (See Dkt. No. 48: Wolfson Opp. Br.) The mere fact that Wolfson is unhappy with the results of his civil cases does not mean that Bruno was negligent.11 Wolfson's belief that Bruno "violate[d] his ethical duty" and deviated from "[]good and accepted legal practice" (Wolfson Opp. Br. at 5) is insufficient to defeat Bruno's summary judgment motion, absent any facts to support Wolfson's ipse dixit.

FOOTNOTES

11 Wolfson [*23] reasserts that Bruno committed malpractice with regard to Wolfson's criminal cases. (E.g., Wolfson Opp. Br. at 1.) The Court does not address these arguments because the claims relating to Bruno's representation of Wolfson in criminal cases was dismissed. (See page 1 n.1 above.) See also, e.g., Wolfson v. Moskowitz, 08 Civ. 8796, 2009 WL 1515674 at *2, *5 (S.D.N.Y. June 1, 2009) ("[U]nder New York law, a party cannot maintain a cognizable claim for legal malpractice in connection with representation provided in a criminal case when his conviction still stands. Thus, because Wolfson has not had his conviction vacated . . . , he fails to state a claim for malpractice and his complaint must be dismissed." (citations omitted)).

Wolfson also argues that Bruno caused him to suffer economic harm through the seizure of his assets. (Wolfson Opp. Br. at 2-3.) The Court does not address this issue because the seizure was the result of an unrelated case brought against Wolfson's son David Wolfson, who voluntarily turned over the assets in settlement. (Bruno Reply Br. at 6-7.) In addition, Wolfson asserts that Bruno lied about his previous legal experience and misinterpreted the law (Wolfson Opp. [*24] Br. at 2, 4); however, Wolfson does not show that the result of the SEC-Utah case would have been different absent Bruno's alleged misconduct.

After Wolfson submitted his conspiracy theory, the only unresolved civil matter was the SEC-Utah case. (See pages 5-6 above.) Wolfson argues that he "never terminated his relationship with [Bruno] when [he] put forth his conspiracy theory to judge [sic] Koeltl." (See page 5 above.) Wolfson argues that he was never informed of any potential settlement in the SEC-Utah case, that he "never terminated defendant in the Utah or Washington case and and [sic] was by contract required to represent Plaintiff," and that Bruno "never put the court on notice that he ws [sic] retained by plaintiff . . . [or] thathe [sic] resigned and ask [sic] to be removed." (Wolfson Opp. Br. at 3.)

First, it is inconceivable that a reasonable client, having accused an attorney of conspiring with the prosecutors against him in a criminal case, would expect that attorney to continue to represent him in a related civil matter. "As between attorney and client, no special formality is required to effect the discharge of the attorney. Any act of the client indicating an unmistakable [*25] purpose to sever relations is enough." Decker v. Nagel Rice LLC, 09 Civ. 9878, 2010 WL 2346608 at *6 (S.D.N.Y. May 28, 2010) (quotations omitted); see, e.g., Pandozy v. Robert J. Gumenick, P.C., 07 Civ. 1242, 2008 WL 2190151 at *3 (S.D.N.Y. May 23, 2008); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *29 n.49 (S.D.N.Y. June 3, 2003) (Peck, M.J.) ("'[T]he attorney-client relationship is terminated only by the occurrence of one of a small set of circumstances . . . [including] acts inconsistent with the continuation of the relationship (e.g., the client's filing a grievance with the local bar association against the attorney) . . . .'") (citation omitted), report & rec. adopted, 2005 WL 730171 (S.D.N.Y. Mar. 31, 2005), aff'd, 224 F. App'x 44 (2d Cir. 2007); Rudow v. Cohen, 85 Civ. 9323, 1988 WL 13746 at *2 (S.D.N.Y. Feb 18, 1988).

Second, Wolfson's argument — that Bruno was never relieved by the court in the SEC-Utah case — fails because a review of the docket sheet in the SEC-Utah case shows that Bruno had never entered an appearance for Wolfson in that case. (See SEC-Utah Dkt. Sheet, No. 02-CV-01086.)

Third, Wolfson clearly knew that Bruno was no longer representing him in the [*26] SEC-Utah case: Wolfson stated in his pro se filings in that case that he had fired Bruno. (See page 6 above.) Wolfson opposed the SEC's summary judgment motion with pro se filings. There was no "default" of any sort entered against Wolfson in the SEC-Utah case.

Finally, and most importantly, Wolfson cannot show that the result in the SEC-Utah case would have been any different but for Bruno's actions (or failure to act). A review of the SEC-Utah docket sheet reveals that because the SEC-Utah case was stayed for a period because of the criminal case in New York, nothing affecting Wolfson in that case occurred until the SEC moved for summary judgment.12 Once the SEC filed its summary judgment motion, Wolfson appeared in the case pro se. Judge Campbell granted summary judgment to the SEC because of Wolfson's guilty plea in the New York criminal cases (which, as noted above, cannot be challenged in this action). Judge Campbell held that "Mr. Wolfson has already admitted under oath--in the criminal proceeding against him--that he took the actions that form the basis of the SEC's current, civil complaint against him." SEC v. Wolfson, No. 2:02 CV 1086, 2006 WL 1214994 at *1 (D. Utah May 5, 2006); [*27] see also, id. at *2 ("In his [criminal case] allocution, Mr. Wolfson admitted under oath that he agreed to take steps to artificially inflate the price of Freedom Surf stock. . . . According to Mr. Wolfson's sworn statement, he 'agreed to raise the price of the stock in order to defraud investors' and that '[t]he whole purpose of this was to enrich [himself] as well as others.'"); id. at *6 ("[T]he centerpiece of the evidence against Mr. Wolfson is the transcript of Mr. Wolfson's [guilty plea] allocution, wherein he admits under oath to the salient facts underlying the SEC's claims . . . . In short, Mr. Wolfson has admitted under oath to all the elements of the fraud allegations alleged in the SEC's Complaint.")."
 

In Doviak v Finkelstein & Partners, LLP ; 2011 NY Slip Op 09085 ; Decided on December 13, 2011 ; Appellate Division, Second Department  the Court has to decide whether a failure to report an offer by defendants to settle the case might be sufficient to demonstrate legal malpractice, as well as to forfeit legal fees which would otherwise be due to the attorneys.  Here, defendants obtained a jury verdict, and even succeeded in increasing the ad damnum clause, but not to the level said to have been offered by the underlying case defendants.
 

"A client has "an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney" (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 43; see Coccia v Liotti, 70 AD3d 747, 757). "An attorney who is discharged for cause, however, is not entitled to compensation or a lien" (Callaghan v Callaghan, 48 AD3d 500, 501; see Campagnola v Mulholland, Minion & Roe, 76 NY2d at 44; Coccia v Liotti, 70 AD3d at 757). An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to any fees for services rendered (see Quinn v Walsh, 18 AD3d 638; Matter of Satin, 265 AD2d 330; Yannitelli v Yannitelli & Sons Constr. Corp., 247 AD2d 271, 272, cert denied sub nom. Heller v Yannitelli, 525 [*3]US 1178; Pessoni v Rabkin, 220 AD2d 732; Matter of Winston, 214 AD2d 677). Moreover, even " [m]isconduct that occurs before an attorney's discharge but is not discovered until after the discharge may serve as a basis for a fee forfeiture'" (Coccia v Liotti, 70 AD3d at 757, quoting Orendick v Chiodo, 272 AD2d 901, 902). This rule is intended to " promote public confidence in the members of an honorable profession whose relation to their clients is personal and confidential'" (Campagnola v Mulholland, Minion & Roe, 76 NY2d at 44, quoting Martin v Camp, 219 NY 170, 176). However, a client's "dissatisfaction with reasonable strategic choices regarding litigation" does not "as a matter of law, constitute cause for the discharge of an attorney" (Callaghan v Callaghan, 48 AD3d at 501; see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562). In general, a hearing is required to determine whether a client has cause for discharging an attorney (see Teichner v W & J Holsteins, 64 NY2d 977, 979; Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 13; Byrne v Leblond, 25 AD3d 640, 642; Hawkins v Lenox Hill Hosp., 138 AD2d 572). "

Cohen v Engoron, 2009 Slip Op 32521 is a fascinating look at the lower end of legal malpractice litigation. In this case, plaintiff is an incarcerated inmate who tried to sue his attorney for the return of $ 8500 in legal fees. While being incarcerated was painful for plaintiff, his attorney suffered a worse fate, dying about three months before the summons and complaint.

Everyone in this case has a bad outcome to consider. Plaintiff, who had the time to litigate this matter, and some significant motivation to move forward, determined that an estate existed, and successfully served the voluntary administrator. The estate hired an attorney who had a NY address, but apparently practiced out of North Carolina.

The attorney attempts to have the case dismissed in Supreme Court, and Justice Kapnick denies his motions, then transfers the case pursuant to CPLR 325(d). While in Civil Court, the estate wins an appeal dismissing the case, as the death preceded the summons. As far as the estate goes, this seems to be the end.

However, while in Civil Court, plaintiff succeeds in an order which finds that the attorney may not practice in NY since he lacks an office for the practice of law in NY. This leads to the current Article 78 against the Civil Court Judge, which fails in this decision.

Once upon a time, an attorney got a job and stayed there for life.  Now, attorneys move from one firm to the next, and carry on litigation as they move.  How does the Court parse liability between predecessor and successor attorneys in these mobile days?

Phoenix Erectors, LLC v Fogarty ; 2011 NY Slip Op 08833 ; Decided on December 8, 2011 ; Appellate Division, First Department pits three of NY's premier legal malpractice defense firms against plaintiff, but after dismissal, the Appellate Division reversed, modified and sent the case back to Supreme Court.
 

"Within a four-month period in early 2002, Hera Construction, Inc. (Hera), a general contractor, commenced a New York action against plaintiff, a subcontractor, for breach of a construction contract, and plaintiff commenced a New Jersey action to recover payments under the construction contract from Hera and a surety from whom Hera had obtained a $1.6 million bond to cover the subcontractors' labor and material payments. Plaintiff retained Fogarty, originally as a partner of defendant law firm White & McSpedon and subsequently as a partner of defendant law firm Litchfield Cavo, LLP, to represent it in the New York action. However, in efforts to combine the two actions, Fogarty, inter alia, drafted a stipulation that discontinued the New Jersey action with prejudice, and allowed the surety company to appear in the New York action only as a third-party defendant. A jury trial resulted in a verdict in favor of plaintiff on its counterclaim against Hera; a judgment, including interest, was entered in the amount of $194,340.30. However, immediately following the jury verdict, the third party action was dismissed, since pursuant to CPLR 1007, suits against a third party can only be maintained for contribution or indemnification claims, neither of which could be properly asserted by plaintiff against the surety company. Subsequently, Hera proved to be judgment proof and plaintiff commenced this action. "

Successor attorney, who could do nothing about the situation is out.  Predecessor attorney, and the individual are in.

"The court erred in finding that plaintiff failed to state a cause of action for legal [*2]malpractice as against Fogarty. The complaint alleged that Fogarty was negligent in failing to protect and preserve plaintiff's claims against the surety company and that "but for" Fogarty's negligence in drafting the New York and New Jersey stipulations, and his corresponding failure to protect plaintiff's claims against the surety company, plaintiff would have been able to collect on its damages award against Hera (see Bishop v Maurer, 33 AD3d 497, 498 [2006], affd 9 NY3d 910 [2007]). These allegations met the requirements of a legal malpractice claim inasmuch as they set forth " the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages'" (see O'Callaghan v Brunelle, 84 AD3d 581, 582 [2011], quoting Leder v Spiegel, 31 AD3d 266, 267 [2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]).

The court properly granted defendant Litchfield Cavo's motion to dismiss, since there was no evidence that Cavo, as superseding counsel, either contributed to the loss or could have
done anything to correct the errors of predecessor counsel (see Waggoner v Caruso, 68 AD3d 1 [2009], affd 14 NY3d 874 [2010]; Rivas v Raymond Schwartzberg & Assoc., PLLC, 52 AD3d 401 [2008]). "
 

Sometimes, the world of legal malpractice seems to be topsy-turfy in the sense that defendants point to their acts as proof that they did not commit legal malpractice, and plaintiffs point to the same act to prove the opposite.  Here in Marom v Anselmo ; 2011 NY Slip Op 08914 ; Decided on December 6, 2011 ; Appellate Division, Second Department  we see a prime example.  Did defendant agree to structure a financial transaction and then do the paperwork too late, or does the late paperwork prove the opposite?
 

"Here, the amended complaint stated a cause of action to recover damages for legal malpractice by alleging that the defendant attorney failed to structure the plaintiff's $500,000 investment in a condominium construction project as a loan secured by a first mortgage on the condominium property as the defendant had agreed to do, and that, but for this failure, the plaintiff would have been able to recover his investment when the project was abandoned Moreover, the evidentiary proof submitted by the defendant in support of his motion, which consisted primarily of a limited liability company operating agreement signed by the plaintiff three days after the closing on the condominium property, and a loan resolution also allegedly signed after the closing, did not demonstrate that a material fact alleged in the complaint was not a fact at all, and that no significant dispute existed regarding it. Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(7). "
 

We admit that sometimes we do not understand how a defendant can actually raise a defense that both it and the Court knows won't pass a smell test.  Nevertheless, the defense gets raised. 

In M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C. ; 2011 NY Slip Op 08877
Decided on December 8, 2011 ; Appellate Division, Third Department we see a situation in which land owner is subject to a lease it gave Rite Aid.  Landowner cannot sell or least to another pharmacy within certain geographical area. (Defeinitely not Manhattan). 
 

"In support of their contention that they exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, defendants submitted an affidavit from defendant Debra Lambek in which she claimed that, although the Rite Aid lease restriction was referred to as part of the proposed 2005 contract, she did not include any reference to it in the 2006 contract because it was personal to plaintiff and, as such, did not apply to the premises being sold. Further, according to Lambek, plaintiff was aware that no pharmacy restriction was included in the 2006 contract prior to executing it. Defendants also submitted an expert affidavit in support of their position. Plaintiff opposed the motion with an affidavit from one of its members, Michael Ginsburg, in which he claimed that defendants were aware that he did not want the property to be sold for use as a pharmacy and that, when he was presented with the 2006 contract of sale, it was his understanding that defendants had accounted for his concerns. Plaintiff also submitted its own expert affidavit as well as Lambek's examination before trial testimony from the fraud action. There, Lambek had testified that, as part of the negotiation of the 2005 sale, plaintiff demanded an indemnification clause to protect it against any claim by Rite Aid that plaintiff had violated the lease restriction, and that she forgot to include any reference to the restriction in negotiating the 2006 contract. Given this conflicting evidence, issues of fact exist as to whether defendants were negligent (see Wittich v Wallach, 201 AD2d 558, 559 [1994]; Canavan v Steenburg, 170 AD2d 858, 859 [1991]; Bloom v Kernan, 146 AD2d 916, 917 [1989]).

As for actual damages, Supreme Court concluded that whether the developer would build a pharmacy and whether Rite Aid would sue or withhold rent as a result were speculative. Accordingly, Supreme Court held that plaintiff was incapable of establishing that defendants' negligence was the proximate cause of any damages. We cannot agree."
 

"Further, despite defendants' contention that the Rite Aid lease restriction is personal to plaintiff and does not apply to the premises being sold, a triable issue of fact exists as to whether the development of a pharmacy would cause Rite Aid to seek to enforce the lease restriction against plaintiff. Specifically, Ginsburg recounts in his affidavit that he contacted Lambek when, after the 2006 contract was executed, he learned of the developer's intent to build a pharmacy. He contends that she told him that the developer could not build a pharmacy, only to later acknowledge that the pharmacy restriction had not been accounted for in the contract. Ginsburg then met with Lambek and Jeffrey Siegel, a member of defendant law firm. According to Ginsburg, they never told him that Rite Aid would not seek to enforce the restriction, but instead that he was facing litigation whether he closed on the contract or not. Defendants concede that Lambek and Siegel advised Ginsburg that Rite Aid may sue plaintiff if a pharmacy were to be developed on the property, but they argue that such a lawsuit would be defensible. Their argument, however, is irrelevant. "

Meralla v Goldenberg ; 2011 NY Slip Op 08656 ; Decided on November 29, 2011 ; Appellate Division, First Department  presents an unusual exception to the rule that a criminal defendant may not sue his criminal defense attorneys.  In essence, plaintiff claims serial acts of ineffective assistance of counsel, both at the trial and at the appellate levels.  As the Court determined, he waited years too long in suing the Legal Aid attorneys.
 

"Plaintiff seeks to recover for successive acts of legal malpractice allegedly committed by defendant Goldenberg, who represented him at a criminal trial at which he was convicted of murder in the second degree, and by the Legal Aid defendants, who delayed in successfully prosecuting the appeal of his conviction (see 228 AD2d 160 [1996], lv denied 88 NY2d 989 [1996] [reversing plaintiff's conviction on the grounds of ineffective assistance of counsel]). Goldenberg seeks contribution from the Legal Aid defendants for the portion of plaintiff's imprisonment allegedly attributable to the delay in appealing the criminal conviction. "

"Of significant interest is the finding that delay in perfecting a criminal appeal is not necessarily actionable. "Here, the bare legal assertion that the Legal Aid defendants were negligent based on the delay in prosecuting the appeal of plaintiff's conviction is insufficient to state a cause of action for legal malpractice. The delay was clearly attributable to the preparation of the Legal Aid defendants' motion to vacate the judgment of conviction, which was complicated by, inter alia, the fact that two separate murder trials were at issue.
 

Client in this case has had some bad turns.  Unjustly convicted of a crime, imprisoned, exonerated, and then the suit against NYS is dismissed.  Client sues attorney for failing to file "documentary" evidence in support of the NYS suit.  At last, Supreme Court denies dismissal and the AD affirms.

In Gioeli v Vlachos ; 2011 NY Slip Op 08559 ; Decided on November 22, 2011 ; Appellate Division, Second Department  the Court finds: "Here, the plaintiff alleges that the defendants committed legal malpractice in their representation of the plaintiff in an underlying claim against the State of New York for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. As pertinent to this appeal, "to present [a] claim for unjust conviction and imprisonment, claimant must establish by documentary evidence" his conviction of one or more felonies, that he was sentenced to a term of imprisonment, that he served "any part" of the sentence imposed, that the judgment of conviction was reversed and the indictment dismissed upon certain enumerated grounds, and that the claim was timely filed (Court of Claims Act § 8-b[3] [emphasis added]). It is undisputed that the defendants failed to submit such "documentary evidence" when they filed the underlying claim in the Court of Claims and that the underlying claim was dismissed based on that pleading defect (Reed v State of New York, [*2]78 NY2d 1, 7; Gioeli v State of New York, 39 AD3d 815; Piccarreto v State of New York, 144 AD2d 920, 921; Heiss v State of New York, 143 AD2d 67, 69; Ivey v State of New York, 138 AD2d 963; Stewart v State of New York, 133 AD2d 112, 113; Lanza v State of New York, 130 AD2d 872, 873). Accordingly, contrary to the defendants' contention, the complaint adequately pleaded the element regarding the defendants' failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Leder v Spiegel, 9 NY3d at 837). "

Pro-se litigants on both sides is often a recipe for long lasting litigation.  In this Landlord-Tenant case, one might say it went viral.  Starting with a garden or varietal L&T case, an appeal to the Appellate Term followed, then a pro-se action in EDNY, and then a case in civil court.  In the end, plaintiffs might be able to proceed on a single cause of action in EDNY.

Caldwell v Gutman, Mintz, Baker Sonnfeldt, P.C. ; 2011 NY Slip Op 52116(U) ; Decided on November 25, 2011 ; Civil Court Of The City Of New York, Kings County ; Levine, J. give a full history of the conflict.
"The instant motion has its genesis in Caldwell's appeal of the decision of the Hon. Fisher Rubin (Index No. 26710/06)("Rubin decision"), dated June 4, 2007, which awarded a money judgment in favor of the plaintiff landlord, Fairfield Residential Associates ("Fairfield" or "landlord") in the amount of $11,462.93 with costs and interests. A judgment of possession had previously been granted to the landlord in a holdover action. Justice Rubin also denied Caldwell's counterclaim seeking further rent abatement.

Caldwell appealed this decision and thereafter filed a summons with an endorsed complaint dated July 24, 2007 ("instant action") which described the substance of plaintiff's causes of action as "wrongful use of civil proceeding" and "abuse of process." Caldwell sued for $25,000 plus interest on each cause of action. In the annexed "complaint" Caldwell set forth six causes of action alleging that the defendant Gutman et al violated a number of disciplinary rules governing the Lawyer's Code of Professional Responsibility and "Rules of Conduct" by initiating a meritless suit against him and his wife for breach of lease and damages to the apartment, by making false statements and filing fraudulent documents with the court during the course of housing court litigation in 2003 through litigation before Judge Rubin, by sending threatening letters to take legal action for rent owed, and by failing to prove essential elements of their case at trial on June 4, 2007 before Judge Rubin. Caldwell also alleged that the firm violated the Fair Debt Collection Practices Act ("FDCPA") (15 USC §1695) by failing to validate the debt after plaintiff's request and an unidentified New York Statute "EC 7-26 and 7-5" by misleading the court into granting Fairfield a judgment when there was no record that Fairfield is either registered with the New York Department of State or is the actual owner of the premises or was sold the debt. "

"While the instant action was stayed, Caldwell and his wife Lisa Caldwell ("Caldwells") filed a pro se complaint in federal court on October 7, 2008, against the instant defendant Gutman, Mintz, Baker & Sonnernfeldt P.C. ("Gutman") and defendants Russell Polirer; Fairfield Presidential Associates, and other defendants (collectively referred to as "federal defendants"). As delineated in the Decision and Order of the Hon. Joseph Bianco, dated March 30, 2010, 701 F. Supp 2d 340 (E.D.NY 2010), plaintiffs asserted numerous federal claims, including violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 USC 1692, et seq.; the Fair Credit Reporting Act ("FCRA"), 15 USC 1681, et seq; Rule 11 of the Federal Rule of Civil Procedure("FRCP") 11; the Federal Criminal False Statements Statute, 18 USC 1001; and federal criminal mail fraud, pursuant to 18 USC 1341 and 1346. Plaintiffs also asserted a panoply of state causes of action including violations of New York General Business Law §349; malicious prosecution; abuse of process; and wrongful use of a civil proceeding. See, 701 F. Supp. 2d at 344. "

"Judge Bianco affirmed the magistrate's dismissal on all of these claims for failure to state a cause of action or statute of limitations, except for two. Judge Bianco declined to dismiss plaintiffs' FCRA claim because "[i]t was possible that the two-year limitations clock did not [*5]begin to run until less than two years before plaintiffs filed the instant complaint". 701 F. Supp. 2d at 354. The court also found that a private cause of action was available under 15 U.S.C. §1681(q), the provision upon which plaintiff relies ."
 

"Furthermore, an attorney's alleged violation of a disciplinary rule does not, by itself, give rise to a private cause of action as there is no private right of action for a violation of the Code of Professional responsibility. See Steinowitz v. Gambescia, 2009 NY Slip Op. 51370(U), 24 Misc 3d 132(A) (App. Term 2d Dept. 2009); Schwartz v. Olshan, Grundman etc al , 302 AD2d 193, 199 (2d Dept. 2003). In some cases, conduct constituting a violation of a disciplinary rule may constitute evidence of malpractice. Steinowitz v. Gambescia, supra; Schwartz, supra at 198. However, to establish a cause of action alleging legal malpractice, a plaintiff must prove the existence of an attorney client relationship between himself and the attorney being sued. Nelson v. Pamela S. Roth, 69 AD3d 605,606 (2d Dept. 2010); Volpe v. Canfield, 237 AD2d 282 (2d Dept. 1997). Here, it is impossible for Caldwell to assert a legal malpractice claim against attorneys who were not representing him but his adversaries.

For all the afore stated reasons, this Court finds that Caldwell does not have a meritorious claim and thus, upon reargument, grants defendant's motion to dismiss. The Court notes that Caldwell may still pursue his FCRA claim and Consumer Protection Law claim in an amended complaint in federal district court. "

Granted, Cadichon v Facelle ; 2011 NY Slip Op 08447 ; Decided on November 21, 2011 ; Court of Appeals ; Pigott, J. is a medical malpractice case, but it could have easily morphed into a legal malpractice case.  The Court of Appeals' decision on dismissals under CPLR 3216 is highly likely to arise in a legal malpractice setting and has been the basis of many a legal mal case in the past.
 

Dismissals for failure to file a note of issue come about in several different ways, but one of the more familiar is the mere failure to file the NOI after a preliminary conference date is set.  In Kings County cases are dismissed frequently, and either a stipulation or a motion to restore is necessary.  Now, courts are routinely posting a warning/notice in the Preliminary conference order which mimics the notice in this case.

"At issue on this appeal is the May 3, 2007 stipulation. At the time this stipulation was executed by the trial court and the parties, plaintiffs had complied with all discovery obligations, and Mrs. Cadichon had been deposed twice, once before and once after the consolidation of the actions. The order directed that Dr. Facelle be deposed by June 26, 2007; Dr. May on July 10, 2007; and representatives of Good Samaritan Hospital and Montefiore Medical Center by August 21, 2007, with plaintiff providing the hospital defendants with 30 days notice as to the names of the representatives plaintiffs wished to depose. The stipulation also directed plaintiffs' counsel to file the note of issue on or before December 27, 2007.

Also served upon and signed by plaintiffs' counsel was a "demand for service and filing of note of issue" which states as follows:

"THE COURT DEMANDS, PURSUANT TO CPLR 3216, THAT YOU RESUME PROSECUTION OF THE ABOVE ENTITLED ACTION, AND THAT YOU SERVE AND FILE A NOTE OF ISSUE [AS PER THE ANNEXED ONE PAGE STIPULATION DATED 5/3/07, I.E., BY 12/27/07][FN1] AFTER THE RECEIPT OF THIS DEMAND.
"YOUR DEFAULT IN COMPLYING WITH THIS DEMAND WITHIN THE 90-DAY PERIOD WILL SERVE AS A BASIS FOR THE COURT, ON ITS OWN MOTION, TO DISMISS THE ACTION FOR UNREASONABLY NEGLECTING TO PROCEED" (emphasis supplied).
December 27, 2007 came and went. Plaintiffs did not file their note of issue by that date, allegedly because defendants had still not been deposed. Unbeknownst to the parties, the case was dismissed on December 31, 2007 and, for the first few months of the new year, plaintiffs attempted to schedule deposition dates, the court having failed to inform any of the [*3]parties of the case's dismissal. Counsel for Dr. Facelle agreed to produce his client for a deposition on April 7, 2008. Around that same time, in March 2008, Good Samaritan Hospital moved to dismiss the action, but those papers were returned to it by the Clerk's Office on the ground that the motion was moot. This was the earliest that any of the litigants had learned that the matter had been dismissed. "

"It is apparent from this record that neither plaintiffs nor defendants acted with expediency in moving this case forward. We have noted, repeatedly, that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously . . . [and] that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 [2005] citing Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]). But where, as here, the case proceeds to the point where it is subject to dismissal, it should be the trial court, with notice to the parties, that should make the decision concerning the fate of the case, not the clerk's office. Therefore, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and plaintiffs' complaint should be reinstated. "

When is a medical record discoverable, in general, and specifically, when are medical records from an "underlying injury" discoverable in a legal malpractice case?  One answer is set forth in Paliouras v Donohue ; 2011 NY Slip Op 08736 ; Decided on November 29, 2011 ; Appellate Division, Second Department.  The rule is simple...they are discoverable when the party has put their physical condition in controversy.  When it is really in controversy is much more difficult.
 

"A party or parties seeking to inspect a plaintiff's medical records must first demonstrate that the plaintiff's physical or mental condition is "in controversy" within the meaning of CPLR 3121(a), and it is only after such an evidentiary showing that discovery may proceed under the statute (see Dillenbeck v Hess, 73 NY2d 278, 287; Koump v Smith, 25 NY2d 287, 294; Neferis v DeStefano, 265 AD2d 464). Even where this preliminary burden has been satisfied, discovery may still be precluded where the information requested is privileged and, thus, exempted from disclosure pursuant to CPLR 3101(b) (see Dillenbeck v Hess, 73 NY2d at 287; Lombardi v Hall, 5 AD3d 739, 740; Navedo v Nichols, 233 AD2d 378, 379). Once the privilege is validly asserted, it must be recognized and the information sought may not be disclosed unless it is demonstrated that the privilege has been waived (see CPLR 3101[b], 4504[a]; Dillenbeck v Hess, 73 NY2d at 287; Koump v Smith, 25 NY2d at 294).

Here, the defendants failed to sustain their initial burden of demonstrating that the plaintiff's physical or mental condition is "in controversy" in this action (see Koump v Smith, 25 NY2d at 297; McConnell v Santana, 30 AD3d 481, 482; Lombardi v Hall, 5 AD3d at 740; Navedo v Nichols, 233 AD2d at 379). Furthermore, the plaintiff validly asserted the physician-patient privilege since he did not affirmatively place his physical or mental condition in issue in this action [*2](see Koump v Smith, 25 NY2d at 297; McConnell v Santana, 30 AD3d at 482; Lombardi v Hall, 5 AD3d at 740; Navedo v Nichols, 233 AD2d at 379). "

The first thing that should be said is that this is not a legal malpractice case; it is, however, a breach of fiduciary duty case.  A agrees with Plaintiff that plaintiff will lend her name to two real estate transactions to purchase one family homes, and A will rent them out, collect rent, and pay the mortgages.  All proceeds, except A does not pay the mortgages, which are in P's name. The inevitable then happens.  Are the two attorneys involved in the closings liable to P?

In Malysz v Adlerstein ;2011 NY Slip Op 52111(U) ; Decided on November 14, 2011 ; Supreme Court, Nassau County ; Marber, J.  they are not.  "Accordingly, the Plaintiff is required to establish that the Attorney Defendants herein failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the Attorney Defendants' breach of this duty proximately caused the Plaintiff to sustain actual and ascertainable damages (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Bilin v. Segal, Goodman & Goodman, LLP, 81 AD3d 680 [2d Dept. 2011]). "This requires a showing that [*5]but for the [Attorney Defendants'] negligence ... [the plaintiff] would have prevailed in the underlying action" (Walker v. Glotzer, 79 AD3d 737 [2d Dept. 2010]). A failure in any one element results in a dismissal of the claim (Albanese v. Hametz, 4 AD3d 379, 381 [2d Dept. 2004]). Furthermore, unless the ordinary experience of the finder of fact provides a sufficient basis for judging the adequacy of the professional service, or the attorney's conduct falls below any standard of due care, expert testimony is also necessary to establish that the attorney breached a standard of professional care and skill (Demetriou v. Connexion I Real Estate Servs., Inc., 24 Misc 3d 127[A], [App. Term, 2nd, 11th & 13th Jud. Dists. 2009]).

In addition, in asserting a claim for a breach of a fiduciary duty, a plaintiff is obligated to set forth "the circumstances constituting the wrong...in detail" (CPLR § 3016 [b]; Daly v. Kochanowicz, 67 AD3d 78 [2d Dept. 2009]).

Initially, it is noted that inasmuch as the Plaintiff has admitted that the Attorney Defendants' sole role in the transaction was to act as her closing attorney and to assist her in acquiring title to both properties, this Court finds that this transaction was a garden variety real estate transaction that does not require the Attorney Defendants on the instant motions to furnish expert affidavits to establish that they did not breach any standard of professional care (Darby & Darby v. VSI Intl., 95 NY2d 308, 312 [2000]).

Furthermore, the evidence indicates that the Attorney Defendants did not proximately cause the Plaintiff to suffer any damages. The Plaintiff entered into the transaction knowing that she could not afford the mortgages and that she was not going to make the mortgage payments. While this Court is not convinced that the Attorney Defendants were not aware of the relationship between Adlerstein and the Plaintiff (because Adlerstein was the one who retained the Attorney Defendants on the Plaintiff's behalf in the first place), the evidence nonetheless confirms that the Plaintiff did not discuss with the Attorney Defendants the side agreement that she had with Adlerstein. Moreover, even assuming that the Attorney Defendants knew or should have known of the relationship between Adlerstein and the Plaintiff, there is no evidence on this record that the Attorney Defendants were aware (or should have been aware) that the Plaintiff was fraudulently executing the mortgage documents.

While both Attorney Defendants acted as the Plaintiff's counsel at their respective closings which necessarily created a fiduciary relationship, as stated above, there is no evidence that either attorney breached that duty in connection with the respective transactions, and furthermore, that said breach was the "but for" cause of any damages. In light of the foregoing, this Court finds that the Defendants have established their prima facie entitlement to judgment as a matter of law. "

In a word, no, and the law firm who gave an opinion letter is not responsible.  In Fortress Credit Corp. v Dechert LLP   2011 NY Slip Op 08626; Decided on November 29, 2011 ;
Appellate Division, First Department  we see Dechert LLP obtain a reversal of Supreme Court's decision and dismissal.  Here are the facts of more fallout from Marc Dreier:
 

"In 2005, Marc Dreier, who was then an attorney, proposed to plaintiffs that they participate in a short-term note program to finance the purchase of foreign real estate assets. The designated borrower would be Dreier's clients, Solow Realty & Development Company, LLC, and affiliated companies controlled by real estate developer Sheldon Solow (collectively Solow Realty), and Dreier would be the guarantor. The parties executed two loans totaling $60 million in 2006, and, in 2008, Dreier proposed another $50 million loan transaction. For this last loan transaction, plaintiffs required Solow Realty and Dreier to retain independent counsel to issue a legal opinion as to whether Solow Realty and Dreier had carried out the necessary formalities to render the loan documents valid and binding on them. Ostensibly, Solow Realty and Dreier retained defendant for this purpose. Dreier furnished the necessary documents and information to defendant for the preparation of the opinion. All the documents to which Solow Realty was a signatory appeared to have been signed by Solow Realty, and some bore "what appeared to be" the signatures of Sheldon Solow and Solow Realty's CEO.

Plaintiffs contend that they relied on defendant's legal opinion that the loan documents were duly executed and delivered and that the loan was a valid and binding obligation on Solow Realty and Dreier. Plaintiffs wired $50 million to an attorney trust account set up at Dreier's firm. Several months later, Dreier was arrested in connection with another fraud scheme, and plaintiffs discovered that Solow Realty had no knowledge of and was never a party to the loan transactions and that Dreier had falsified the documents and forged the Solow Realty signatures.

Although there is no contractual privity between the parties, the complaint sufficiently alleges a relationship of "near privity" for the purpose of stating a cause of action for negligent misrepresentation or negligence (see Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 384-385 [1992]). Plaintiffs allege that the particular purpose of the opinion letter was to aid them in deciding whether to enter into the loan transaction, that defendant was aware that they were relying on the opinion in making that decision, and that defendant evinced its understanding of that reliance by addressing the legal opinion to them. However, the complaint fails to allege (a) that plaintiffs informed defendant that its obligations were not limited solely to a review of relevant and specified documents or (b) that plaintiffs informed defendant that it was to investigate, verify and report on the legitimacy of the transaction. Absent such factual allegations, plaintiffs cannot establish that defendant breached a duty of care. As Dreier was Solow Realty's attorney and the guarantor of the loan, defendant had no reason to suspect that Solow Realty was not in fact a party to the loan transaction or that Dreier forged the signatures of its principal and CEO. We note that plaintiffs had previously made two large loans to Dreier, while represented by international firms that specialized in financial transactions. Prior to Dreier's arrest, plaintiffs never suspected fraud.

This case was brought against the estate of an attorney, and claims legal malpractice.  One sometimes wonders how the family of a deceased attorney picks up the pieces of the practice, turns what assets remain (especially cases in situ) into something of value, hands the cases off to other attorneys, and closes out that portion of their lives.

Here, the estate is sued for claimed mistakes in the handling of a security agreement, and the loss of a significant amount of money.  In Americana Capital Corp. v Nardella ; 2011 NY Slip Op 33002(U); November 9, 2011 ; Supreme Court, New York County; Docket Number: 604179/2005
Judge: Saliann Scarpulla, we see the following:

In or about November 2005, ACT commenced this action alleging that the deceased, Allan J. Goodman, ("Goodman") committed legal malpractice by negligently preparing a November 3002 Master Security Agreement and related documents. ‘There was no retainer agreement executed by Goodman and ACC’s president and sole shareholder Garald R. Paulis (“Paulis”). According to the allegations of the complaint, the Agreement was intended to secure a loan from ACC to Frank Kania ("Kania") by placing certain of‘Kania’s antiques and real property as collateral.  If Kania breached the Agreement, ACC could seize all  of his collateral property. Kania signed the Agreement and a modification to the Agreement on November IS, 2002.  Paulis signed the
Agreement on November 29, 2002.

In or about August 2003, Kania defaulted on his loans from ACC.  In November 2003, ACC  contacted attorney Howard Kantrowitz ("Kantrowitz") who  ultimately concluded (hat the Agreement would be unenforceable in Connecticut, where the collateral property was located. In or around 2005, Kantrowitz prepared a new security agreement  for Kania and ACC that was enforceable in Connecticut.  Pursuant to that agreement, the amount owed to ACC was reduced from 1.75 million to 1.3 million dollars.  Kania’s collateral was collected and sold, however, according to ACC, the assets only brought in a fraction of the amount loaned to and owed by Kania.

 A legal malpractice claim accrues when all of the facts necessary to the claim have occurred  and an injured party can obtain relief in court.  McCoy v. Feinman, 99 N.Y.2d 295, 301
(2002). Here, the Agreement, which is the subject of the legal malpractice action, was
fully executed when signed by Paulis on November 29, 2002. As such, ACC's claim could only accrue as of that date, when the Agreement became practicable. Thus, because the summons with notice was filed on November 23, 2005, the legal malpractice claim is not time barred..
 

Further, this action is not barred by the Dead Man's Statute. Pursuant to CPLR 4519 the Dead Man's Statute docs not, by its terms, prohibit the introduction or documentary evidence against a deceased estate. Rather, an adverse party's introduction of a document authored by a deceased "does riot violate the Dead Man's Statute, as long as the document is authenticated by a source other than an interested witnesses' testimony concerning a transaction with the deceased.

Sometimes a legal malpractice complaint is difficult to understand and sometimes it is plain as day. This case seems to be an example of the plain variety. Gioeli v Vlachos ;2011 NY Slip Op 08559 Decided on November 22, 2011  Appellate Division, Second Department .
 

'Here, the plaintiff alleges that the defendants committed legal malpractice in their representation of the plaintiff in an underlying claim against the State of New York for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. As pertinent to this appeal, "to present [a] claim for unjust conviction and imprisonment, claimant must establish by documentary evidence" his conviction of one or more felonies, that he was sentenced to a term of imprisonment, that he served "any part" of the sentence imposed, that the judgment of conviction was reversed and the indictment dismissed upon certain enumerated grounds, and that the claim was timely filed (Court of Claims Act § 8-b[3] [emphasis added]). It is undisputed that the defendants failed to submit such "documentary evidence" when they filed the underlying claim in the Court of Claims and that the underlying claim was dismissed based on that pleading defect (Reed v State of New York, [*2]78 NY2d 1, 7; Gioeli v State of New York, 39 AD3d 815; Piccarreto v State of New York, 144 AD2d 920, 921; Heiss v State of New York, 143 AD2d 67, 69; Ivey v State of New York, 138 AD2d 963; Stewart v State of New York, 133 AD2d 112, 113; Lanza v State of New York, 130 AD2d 872, 873). Accordingly, contrary to the defendants' contention, the complaint adequately pleaded the element regarding the defendants' failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Leder v Spiegel, 9 NY3d at 837). "

This was a divorce case, and the couple had a business.  What was the business worth? How was it to be split?  Was there an appraisal?  Strumwasser v Zeiderman ; 2011 NY Slip Op 32971(U); October 18, 2011; Supreme Court, New York County; Docket Number: 113524/10
Judge: Joan A. Madden is a case in which husband settles, and then sues wife's attorney for deceit.The deceit?  Offering a business plan with a missing page in order to set the value of the business. Was this deceit under Judiciary Law 487?  It turns out that the Court thought it was not.

"Plaintiff maintains that it was deceitful for the law firm to represent that the financial projections w e r e anything other  than informational, and bases the allegation of deceit on this representation.
The law firm contends that it was arguing, on behalf of Wife, that the issue of the value of the jointly-held stock in Snow Beverages was an issue for consideration in the distribution of marital assets. The law firm maintains that its presentation of the business plan was to oppose plaintiff's motion to be relieved of the cost of the court-appointed appraisal, and that the presentation of the business plan was to provide evidence to the court that plaintiff had ascribed a value to Snow Beverages' stock. According to the law firm, it is irrelevant whether the business plan was designed for informational or investment purposes; its import was to demonstrate plaintiff's own concept of the value of the stock.

In the complaint, plaintiff also alleges that it was deceitful for the law firm to represent that Snow Beverages was profitable since, at the time of the divorce proceedings, it was losing money. Complaint, 17 59-63. In support of its instant motion, the law firm has attached a copy of the Snow Beverages' website of December 15, 2010, that indicates that the company was still operating as of that date. Motion, Ex. C."

"Plaintiff argues that he may maintain an action against an adversary’s expert if the expert is involved in a larger fraudulent scheme, such as he has alleged in his complaint. Further, plaintiff contends that justifiable reliance is a question for a jury and cannot be dismissed by dispositive
motion. In reply, the EisnerAmper defendants assert that the exception to suing an adversary’s expert as being part of a larger fraudulent scheme is inapplicable to the case at bar, since plaintiff had every opportunity to refute the Blauatein report and the report was prepared only for a determination of equitable distribution in a divorce proceeding. defendants say that plaintiff has not alleged a fraud for any larger purpose. Moreover, the EisnerAmper defendants point out that the settlement was overseen and approved by the matrimonial The EisnerAmper court, and plaintiff was fully represented in those proceedings. It is noted that plaintiff has not responded to the
EisnerAmper defendants‘ argument that a cause of action cannot be maintained as against EisnerAmper LLC under the doctrine of respondeat superior. that EisnerAmper LLC negligently supervised Blaustein and McLaughlin."

" A clear reading of the complaint indicates that plaintiff never believed the valuation and never relied upon it. the complaint alleges that plaintiff relied upon the Instead, representation of his own counsel that challenging the valuation would be expensive, and his counsel's advice to settle.
Furthermore, the alleged misrepresentation was not made to plaintiff, according to the complaint, but was made to the court, which never relied upon it because the parties settled. In addition, plaintiff signed the stipulation of settlement in which he affirmatively stated that he was not fraudulently induced to enter into the agreement. Therefore, by his own admission, no
fraud was perpetrated on him."

"Since plaintiff has failed articulate or allege a chronic or extreme pattern of behavior on the part of the law firm , plaintiff’s causes of action asserted as against Zeiderman and J&C for violation of the Judiciary Law are dismissed."

in Frederick v Meighan ;2010 NY Slip Op 06076 ;Appellate Division, Second Department we see the effect of Attorney 2 failing to clean up Attorney 1's mistakes. In addition we see an instance of what we believe to be a systemic aversion to legal malpractice cases. Here, for example, Supreme Court sua sponte grants dismissal to Attorney 1 in this legal malpractice case; the Appellate Division not only reinstates the case, it grants summary judgment to plaintiff. But, on to the substance.
 

"At the outset, we find that the Supreme Court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint insofar as asserted against the Meighan defendants pursuant to CPLR 3211(a)(4) in view of the continued pendency of the first legal malpractice action against those defendants, which relief was not requested by any party in this action (see Clair v Fitzgerald, 63 AD3d 979, 980; Frankel v Stavsky, 40 AD3d 918, 919).

"We further find that the Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the Meighan defendants. In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). Here, in opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law, the Meighan defendants failed to demonstrate the existence of any triable issues of fact with respect to their liability for legal malpractice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Northrop v Thorsen, 46 AD3d 780, 784; Jampolskaya v Victor Gomelsky, P.C., 36 AD3d 761, 762). Contrary to the Meighan defendants' contention, inasmuch as the plaintiff did not sustain "actionable injury" until this Court awarded the buyers specific performance in the underlying action, the plaintiff's legal malpractice cause of action against them was not time-barred (McCoy v Feinman, 99 NY2d 295, 301; see Kerbein v Hutchison, 30 AD3d 730, 732). Also contrary to the Meighan defendants' contention, their malpractice was a proximate cause of the injury in this case. If the DeCaro defendants are found to have also committed malpractice, the Meighan defendants and the DeCaro defendants may both be liable as successive tortfeasors who each contributed to the same injury (see Schauer v Joyce, 54 NY2d 1, 6; Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 66 AD3d 993, 994-995; Khlevner v Tylo, 16 Misc 3d 1129[A]).

The Supreme Court should have denied those branches of the DeCaro defendants' cross motion which were for summary judgment dismissing so much of the complaint as alleged that they committed legal malpractice by failing to interpose a claim in the underlying action for rescission of the construction agreement based on mistake, by failing to interpose an affirmative defense in the underlying action of rescission based on mistake, and by arguing on appeal in the underlying action that the plaintiff instructed the Meighan defendants to send the construction agreement to the attorneys for the other parties to that agreement, which argument was contrary to the plaintiff's testimony at the underlying trial. While the DeCaro defendants contend that a rescission defense based on unilateral mistake would not have been successful in the underlying action for specific performance, specific performance may be denied based on unilateral mistake [*4]where the other party must have been aware of the mistake (see Da Silva v Musso, 53 NY2d 543, 548; Sheridan Drive-In v State of New York, 16 AD2d 400, 405; Harper, Inc. v City of Newburgh, 159 App Div 695, 696-697). However, the Supreme Court should have granted that branch of the DeCaro defendants' cross motion which was for summary judgment dismissing so much of the complaint as alleged that they committed legal malpractice by failing to advise the plaintiff of a potential legal malpractice claim against the Meighan defendants. As discussed above, the plaintiff lacked a viable legal malpractice claim against the Meighan defendants until this Court awarded the buyers specific performance."
 

We wrote about the Pryor Cashman legal malpractice case last week. Here is the NY Law Journal's take on it:

"A legal malpractice lawsuit filed by the trustees to a union's benefit funds against Pryor Cashman for failing to provide advice that would have prevented the funds' third-party administrator from embezzling $42 million may go forward, a unanimous Appellate Division, First Department, panel ruled Thursday.

The trustees for the three Construction Workers Local 147 filed the lawsuit, Fitzsimmons v. Pryor Cashman, 651360/10, last year (NYLJ, Aug. 30, 2010). It followed the December 2009 arrest of Melissa G. King on federal charges of embezzling millions from the funds as the principal behind administrator King Care LLC.

Pryor Cashman had advised the trustees and benefit funds for more than a decade. The trustees claim the law firm should have realized administrative expenses for the funds were "unusually high" and encouraged the trustees to ask why, the complaint said. Pryor Cashman also should have recommended hiring an independent auditor, the complaint said.

Pryor Cashman moved to dismiss, arguing that the trustees had not brought specific allegations of the firm failing to fulfill its duties. Manhattan Supreme Court Justice Barbara R. Kapnick (See Profile) denied the motion in March, and the First Department affirmed. "Plaintiff put forth sufficient detail to establish the negligence of the attorneys, that the negligence was the proximate cause of the losses sustained by the benefits funds, and actual damages to those funds," the panel said. "Plaintiffs were not required to allege the specific scope of defendants' duties, given the absence of a governing retainer agreement."
 

We have written that sometimes Courts are too eager to dismiss a legal malpractice case in CPLR 3211 grounds.  Here, in Fitzsimmons v Pryor Cashman LLP ; 2011 NY Slip Op 08280 ; Decided on November 17, 2011 ; Appellate Division, First Department  the Court denied dismissal and the Appelate Division affirmed.
 

"The court applied the correct standard and properly held that the complaint states a cause of action for legal malpractice. Plaintiff put forth sufficient detail to establish the negligence of the attorneys, that the negligence was the proximate cause of the losses sustained by the benefits funds, and actual damages to those funds (see Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied 552 US 1257 [2008]; O'Callaghan v Brunelle, 84 AD3d 581, 582 [2011]). Plaintiffs were not required to allege the specific scope of defendants' duties, given the absence of a governing retainer agreement (see Greenwich v Markhoff, 234 AD2d 112, 114 [1996]). Moreover, the documentary evidence — including Form 5500s, minutes of a 1997 Board meeting, and Department of Labor letters — does not conclusively disprove plaintiffs' allegations (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Plaintiffs' expert affidavit was properly considered to remedy any defects in the complaint (see Leon v Martinez, 84 NY2d 83, 88 [1994]). "

One frequently sees an argument made in motions to dismiss pursuant to CPLR 3211 (multiple sub-divisions) in which evidentiary material is submitted by defendant, and it is argued that damages cannot be ascertained or proven.

In Simpson v Alter ;2010 NY Slip Op 08089 ;Decided on November 9, 2010 ;Appellate Division, Second Department the Court answers this question:
 

"The Supreme Court also properly denied that branch of the appellants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7). On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87; Sokol v Leader, 74 AD3d 1180). "Where evidentiary material is submitted on a CPLR 3211(a)(7) motion, it may be considered by the court, but unless the defendant demonstrates, without significant dispute, that a material fact alleged by the complaint is not a fact at all, the motion will not be granted" (Quesada v Global Land, Inc., 35 AD3d 575, 576; see Caravousanos v Kings County Hosp., 74 AD3d 716). Contrary to the appellants' contention, the documentary evidence which indicated that certain information about the plaintiff's residency status may have been publicly available does not completely disprove her factual allegation that Alter divulged personal information which she had imparted to him when he represented her in 2003. Furthermore, the complaint sufficiently pleads allegations from which damages attributable to the appellants' alleged legal malpractice might be reasonably inferred (see Kempf v Magida, 37 AD3d 763, 764; see also Rock City Sound, Inc. v Bashian & Farber, LLP, 74 AD3d 1168)."

On occasion, a story makes one stop and wonder how it could have happened.  In Heller v Goldberg, Scudieri & Lindenberg, P.C.; 2011 NY Slip Op 32930(U); November 2, 2011;Sup Ct, NY County;Docket Number: 105061/11;Judge: Eileen A. Rakower we see not the first, but rather, the second transgression by a partner in a well known law firm.  How did the law firm let him stay on?

Justice Rakower writes:  "The malpractice allegedly began in 1997 when Block lied and  told plaintiffs that he had filed two claims against their landlord, that he had made several court appearances on plaintiffs’ behalf, and secured default judgments in the total amount of $675,000. In 1999 Block lied to plaintiffs again and told them that he was filing a lien against the landlord’s property in order to secure the two judgments.

Also in 1999, Block negotiated a buy-out of plaintiffs’ rent-stabilized apartment by the landlord for $60,000, from which the Firm was paid a fee of $10,000. As part of the settlement, plaintiffs allege that Block induced them to execute a general release in favor of the landlord by convincing them that the release would not have any bearing on their ability to collect on the fictitious default
judgments. In 2005 Block represented to plaintiffs that the landlord’s building had sold for
$3,500,000, and that a judge had directed the funds to be place in an escrow account by the New York City Department of Finance (LLD OF”I)n. 2006 Block conveyed to plaintiffs that he had  persuaded” the City Department of Finance to transfer the funds into a separate account, but that he could only disburse small amounts per month to them until the money was released.

The monthly stipends were paid out of the Firm’s escrow account. In the meantime, Block told plaintiffs that their judgment was now valued at over $14,200,000 due to penalties imposed by the judge on the DOF. In or around 2008 Block claimed that he secured a default judgment against the DOF in the amount of $5,000,000.  Block continued to make ever increasing payments to plaintiffs out of the firm’s escrow funds until September 28, 2010. On November 9, 2010 Block told
plaintiffs that they could expect a $7,000,000 disbursement the following day. When plaintiffs called the office to inquire further, Defendant Alan J. Goldberg answered and told plaintiffs that Block had been suspended from the practice of law and that the Firm had no active cases on file for them.

Defendants now move to dismiss the claims against them pursuant to CPLR 321 l(a)(l), CPLR321 l(a)(7)and CPLR3016(b). Plaintiffs oppose the motion.Block does not submit papers. In support of their motion, defendants submit: their affidavits; two printouts from the N Y S Department of State Division of Corporations; a copy of the complaint; a list of checks disbursed from the Firm’s escrow account; and a copy of a Grand Jury indictment. Defendants contend that the individual members of the PC cannot be held liable for Block’s malpractice because plaintiff cannot show that they participated in, or had knowledge of Block’s misconduct. Defendants claim that the “Adverse Interest Exception” bars the malpractice claim against the Firm. Plaintiffs, in opposition, claim that defendants had direct supervision and control over Block, and were active participants themselves in Blocks wrongdoing. Plaintiffs argue that defendants affirmatively undertook the duty to supervise Block after his 2001 disciplinary hearing. At that hearing, Block was suspended for six
months from the practice of law for deliberately deceiving another husband and wife “through lies and fabrication of documents to corroborate those lies, and by neglecting the clients’ affairs . . . [and making] false assurances to his client as to the status of their case when, in fact, the matter was never commenced , . .”(Matter of Block, 282 AD2d 12[ 1 st Dept. 200 11). Plaintiffs allege that the partners knew of the . . suspension. Indeed, Goldberg represented Block at the hearing."

The case continues, motion to dismiss legal malpractice denied.

Plaintiff law firm wants to collect $ 58,000 in fees, and Defendant Client believes that the law firm abandoned her during a divorce, took her escrow monies to pay fees, and caused her to spend $ 250,000 to get another attorney up to speed. The case has been before Justice James, in Supreme Court, New York County, then to the AD, and now back to her.  Here is her take on the matters in Bender Burrows & Rosenthal, LLP v Simon ; 2011 NY Slip Op 32923(U);November 4, 2011; Sup Ct, NY County;Docket Number: 100358/06 ;Judge: Debra A. James:  "The Law Firm commenced the instant action to recover legal fees in the amount of $58,900.36, arising from its representation of Simon during her underlying matrimonial action, entitled Simon v Simon (Sup Ct, NY County, Index No.: 303306/2001). The complaint asserts three causes of action: breach of contract (first), account stated (second), and quantum meruit (third). Simon interposed an Answer, asserting two counterclaims: legal malpractice (first) and the return of escrow funds alleged
to have been improperly appropriated by the Law Firm (second). The Law Firm subsequently moved to dismiss the counterclaims, and Simon cross-moved for partial summary judgment on its second counterclaim. After this court denied the parties' respective applications in its order dated July 2, 2007 (the Prior Order), the parties appealed the Prior Order. The Appellate Division modified the Prior Order, only to the extent of granting that branch of the Law Firm's motion dismissing Simon's firat counterclaim for legal malpractice (Bender Burrows & Rosenthal, LLP v Simon, 65 AD3d 499 [lst Dept 20091 [the AD Decision]). Simon's subsequent motion for clarification of the AD Decision, or alternatively leave to appeal, was denied in its entirety on March 9, 2010. Simon then served an Amended Answer, dated May 2 5 , 2010, which asserts, inter alia, five counterclaims: return of the purportedly diverted escrow funds (first); \\refund of legal fees
paid to [the Law Firm]" (second)  ; "refund of overcharges for fees fee paid to [the Law Firm]" (third & fourth); and violation of Judiciary Law § 487 (fifth). The Law Firm now moves to di'smiss the second through fifth counterclaims asserted in the Amended Answer. "

"The third Counterclaim purportedly states a fee overcharge claim, seeking a refund of the legal  funds paid to the Law Firm. It alleges that the Law Firm overcharged and collected excessive
and unreasonable fees, by, inter alia, "not assigning the matter and specific tasks to the most competent and efficient staff/counsel,,, "spending excessive and redundant time on tasks,"
"utilizing three attorneys who appeared at trial ," and 'failing to properly prepare for trial." A party may bring a claim to recover legal fees already paid to his or her attorney on the grounds that the fees were excessive (see Boslia v Green berq, 63 AD3d 973 [2nd Dept 2005] ) , and such claim is not considered duplicative of a legal malpractice claim (&; see also Loria v Cerniqlia, 69 AD3d 583 [2d Dept 20101). Therefore, contrary to the Law Firm's argument, the mere fact that the third
counterclaim is based upon similar conduct raised in the legal malpractice action does not warrant its dismissal. Thus, Simon shall be granted leave to amend the answer to include the third
counterclaim for a legal fee overcharge and the court shall deny dismissal of the counterclaim."

Clients often feel that attorneys are less than trustworthy, and never more often than in the company-executive situation where the company believes that the lawyers are in cahoots with the executive.  Here, in FLYCELL, INC.,  -against- SCHLOSSBERG LLC and MICHAEL T. O'NEIL, Defendants.;No. 11-CV-0915-CM;UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ;2011 U.S. Dist. LEXIS 126024; October 28, 2011,we see a stunning example.  From the decision:

"Plaintiff, a Delaware corporation with its principal place of business in New York, is a digital media company that primarily offers digital content — such as ringtones, graphics, and games (Compl. ¶ 9) — to the public through internet advertising (id. ¶ 18). Plaintiff can either place the advertising itself, or hire a third party to do so pursuant to an agency agreement. (Id.)

Schlossberg is a limited liability company engaged in the practice of law with five members. Schlossberg is organized and has its principal place of business in Massachusetts, and its five members are citizens of Massachusetts. (Id. ¶ 12.) O'Neil is a member of [*3] Schlossberg, and was the attorney primarily responsible for Plaintiff's business; Plaintiff was one of Schlossberg's clients. (Id. ¶ 13.) Schlossberg and O'Neil served as Plaintiff's general outside counsel since 2005. (Id. ¶ 2.) Beginning at an undetermined time, but no later than 2009, Defendants also represented Flycell's now-former CEO, Alberto Montesi ("Montesi").

The Court notes that Flycell has separately resolved its claims against Montesi and his network of companies. See Flycell Inc. v. Alberto Montesi and Smart Ads, LLC, No. 10 Civ. 6500 (CM) (THK) (S.D.N.Y.) (the "Smart Ads Action"). In this action, Montesi was ordered by Magistrate Judge Theodore H. Katz to produce communications with the Defendants pursuant to the crime-fraud exception to the attorney-client privilege. Smart Ads Action, Mot. to Compel Hearing Tr., 35:13-14 (Dec. 1, 2010). Magistrate Judge Katz stated at a hearing on December 1, 2010, "There's no question in my mind that there have been specific facts that have been advanced that lead me to conclude that there's probable cause to believe that establishing these companies and the business they were supposed to carry on was in furtherance of a crime or fraud." [*4] Id. at 33: 17-22.

B. The Glispa Kickback Scheme

In 2006, Montesi, Glispa LLC ("Glispa"), a company that places advertising on the internet for third parties (id. ¶ 10), and Matrix Management Group, LLC ("Matrix"), a company controlled by a friend of Montesi (id. ¶ 20), entered into a kickbacks scheme. (Id. ¶¶ 6, 22.) Under their arrangement, Glispa, through Gary Lin ("Lin"), its founder and president (id. ¶ 6), paid bribes to Montesi in exchange for Montesi awarding Glispa "lucrative agency agreements" with Flycell. (Id. ¶ 19-20.) These bribes were funneled through Matrix, which held the funds for Montesi's benefit, and took a cut in exchange (Id. ¶ 22, 83) pursuant to a pair of "consulting agreements executed between the parties in 2006 and 2008 (Id. ¶ 23). Montesi was to receive between 20%-30% of the revenue Glispa received from placing ads with Plaintiff. (Id.)

Defendants Schlossberg and O'Neil came into the story when Glispa and Montesi entered into a third consulting Agreement in 2009, cutting out Matrix, the middleman (the "Consulting Agreement"). (Id.) In this agreement, Montesi agreed to perform "consulting services" for Glispa. (Id. ¶ 31.) In fact, Glispa simply paid Montesi [*5] for directing Flycell's business its way. On May 29, 2009, Lin, on behalf of Glispa, purported to request that Montesi "provide documentation of [Flycell] board approval" of the Consulting Agreement to "make the illegal payments from Glispa to [Montesi] appear legitimate." (Id. ¶ 32.) Montesi replied, "You must be joking," (id.) and turned to Defendants for advice.

On June 1, 2009, Montesi approached O'Neil to represent him personally and provide advice with respect to this third consulting agreement between Glispa and Montesi. (Id. ¶ 31.) Defendants accepted the engagement without disclosure to or consent from Plaintiff. (Id. ¶ 31, 35.) On the same day, Montesi sent a copy of the Consulting Agreement to Defendants for review. (Id. ¶ 31.) At the time, Defendants were aware that Glispa had pre-existing contracts with Flycell, because O'Neil had reviewed those agreements as Flycell's counsel in 2006 and March 2009. (Id. ¶ 25, 31.)

O'Neil reviewed the Consulting Agreement, and wrote to Montesi on June 2, 2009, stating that the "Only thing that concerns me here is that they are requiring you to get Flycell Board approval." (Id. ¶ 33.) O'Neil then allegedly revised the agreement so that it [*6] reflected a "false representation" from Montesi that Montesi had obtained board approval, rather than requiring actual board documentation. (Id. ¶ 34.) The parties entered into the agreement on August 1, 2009. (Id. ¶ 83.)

In total, Plaintiff paid Glispa over $3.8 million pursuant to these fraudulent agreements. (Id. ¶ 28.) Plaintiff estimates that Montesi received over $500,000 in kickbacks pursuant to these first two agreements, and $237,000 for the third. (Id. ¶ 23) All services that Glispa purported to perform for Plaintiff could have been performed by Plaintiff in-house. (Id. ¶ 29.) Defendants' actions also hurt Flycell by allowing the scheme to continue through the Consulting Agreement. (Id. ¶ 35.)"

""A claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of breach." Lerner v. Fleet Bank, N.A.., 459 F.3d 273, 294 (2d Cir. 2006) (quoting Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157 (N.Y. App. Div. 2003)).

Plaintiff must allege that Defendants had actual knowledge of the breach of duty, not mere constructive knowledge. Kaufman, 307 A.D.2d at 125; Brasseur v. Speranza, 21 A.D.3d 297, 299, 800 N.Y.S.2d 669, 671 (N.Y. App. Div. 2005) ("bare allegations that the agent "knew or should have known" of numerous instances of the [primary] breach of fiduciary duty was insufficient to satisfy this element"). Additionally, Plaintiff must allege that Defendants provided "substantial assistance" to Montesi, the primary violator. Id. at 126. "Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required [*22] to do so, thereby enabling the breach to occur" or, if a defendant owes a fiduciary duty to the plaintiff, inaction of an alleged aider and abettor constitutes substantial assistance. Id.

As to the first element, the parties do not contest that the Complaint adequately alleges that Montesi breached his fiduciary obligations to Plaintiff. (Compl. ¶¶ 94, 99; Mot. to Dismiss at 19.)

Defendants vigorously contest the second element, however. Defendants claim that Plaintiff does not sufficiently allege that Defendants substantially assisted Montesi's breach of fiduciary duty (Mot. to Dismiss at 19-20), and that Plaintiff fails to plead "actual knowledge" (Reply at 6-8). I disagree. Reading the "complaint generously, drawing all reasonable inferences" in Plaintiff's favor, Lee, 557 F. Supp. 2d at 423, Plaintiff does allege that Defendants were "aware of [Montesi's] fiduciary duties to [Plaintiff]" (Compl. ¶ 96), and yet provided Montesi with substantial assistance in breaching his fiduciary duties (id. ¶ 98).

First, Plaintiff alleges that "O'Neil knew that the companies [Defendants] set up for [Montesi] were being used to defraud [Plaintiff]," yet still prepared documents to conceal Montesi's [*23] ownership of Smart Ads. (Compl. ¶¶ 47-49.) While the emails referred to may be far from damning, it is a reasonable inference that Defendants knew that Montesi created the Entities to usurp business opportunities that he should have secured or reserved for Plaintiff, and knowingly helped Montesi conceal this fact by hiding his ownership. (Id. ¶ 47-48.)

Plaintiff also alleges that Defendants had actual knowledge that the Consulting Agreement between Montesi and Glispa was illegal, yet persisted in helping Montesi keep the arrangement hidden from Plaintiff by inserting a false representation into the agreement. (Compl. ¶¶ 33-35.) In light of O'Neil's email stating that he was concerned that Plaintiff's Board would have to approve the Consulting Agreement, it is a reasonable inference that O'Neil had actual knowledge that Montesi's arrangement with Glispa was a breach of Montesi's duty to Plaintiff. (Id. ¶ 33.)

In addition, Plaintiff adequately alleges that Defendants had actual knowledge that Montesi's activities with the Entities conflicted with his duties as Plaintiff's CEO because Defendants knew that Montesi's employment contract with Plaintiff required Montesi to devote substantially [*24] all of his time to Plaintiff's business. (Compl. ¶ 46.) Plaintiff further alleges that Defendants still assisted Montesi in "carrying out [the Entities'] fraudulent purpose" (Compl. ¶¶ 51-52) in contravention of Montesi's duties to Plaintiff.

Thus, Plaintiff adequately alleges Defendants' actual knowledge of Montesi's breach of fiduciary duty.


 

During the housing run-up there was a frenzied buy-and-sell atmosphere.  Buyers were looking to maximize a purchase with an eye to a large profit.  Not all transactions went well, and as always, when commercial transactions fail, there will have been representation by attorneys, and later claims of attorney malpractice.

Here, in Humbert v Allen ;2011 NY Slip Op 08125 ; Decided on November 9, 2011 ; Appellate Division, Second Department  we see the situation in which buyer deposits downpayment and then applies for a mortgage.Events go down-hill from there.  When they are sued by seller, who wants to retain the downpayment, they third-party their own attorney.

"The defendants third-party plaintiffs, Allison E. Allen and Robert T. Allen (hereinafter together the Allens), entered into a contract to purchase a condominium unit from the plaintiff for a total purchase price of $475,000. Upon signing the contract, the Allens deposited a down payment in the sum of $47,500 into an escrow account managed by the Allens' lawyer, the defendant Luigi Rosabianca, and his law firm, the third-party defendant Rosabianca & Associates, PLLC (hereinafter together the appellants). The contract of sale contained a mortgage contingency clause that entitled the Allens to a refund of their down payment if they could not secure a commitment for a mortgage loan in the amount of $427,500, after making a good faith and diligent attempt to obtain such a commitment. The Allens proceeded to apply for a mortgage loan in a far greater amount, intending to purchase another condominium unit in addition to the unit owned by the plaintiff. Although the Allens received a "counteroffer" commitment from a bank for a loan in the amount of $846,000, they instructed the appellants to cancel the contract of sale with the plaintiff in accordance with the mortgage contingency clause.

The plaintiff subsequently commenced this action against the Allens and Rosabianca, alleging breach of contract and seeking to receive and retain the down payment as liquidated damages. In her complaint, the plaintiff alleged, inter alia, that the Allens had violated the terms of the mortgage contingency clause and forfeited their down payment by failing to make a diligent application for a mortgage loan in the amount of $427,500. The Allens asserted, inter alia, a cross claim against Rosabianca and a third-party cause of action against Rosabianca & Associates, PLLC, alleging legal malpractice.

The plaintiff and the Allens ultimately entered into a settlement agreement pursuant to which each of them received a portion of the down payment. By stipulation, the plaintiff discontinued her claims against the Allens and Rosabianca. The Allens, however, maintained the aforementioned cross claim and third-party cause of action against the appellants, alleging that they were negligent in failing to tender written notice of cancellation to the plaintiff in accordance with the terms of the contract of sale, that this negligence was a proximate cause of the Allens' damages, and thus, that the appellants were liable for the portion of the down payment that the Allens forfeited to the plaintiff. "
 

"Here, the Allens did not meet their prima facie burden of establishing their entitlement to judgment as a matter of law on the cross claim and the third-party cause of action alleging legal malpractice insofar as asserted against the appellants. They failed to demonstrate that the appellants' alleged malpractice (the failure to tender written notice of cancellation of the contract of sale) was a proximate cause of their damages (see Bells v Foster, 83 AD3d 876, 877; compare Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511). The Allens did not establish, prima facie, that they would have been entitled to the return of their down payment, but for this alleged malpractice (see Kluczka v Lecci, 63 AD3d 796, 797). As the record indicates, and the Allens do not dispute, they applied for a mortgage loan in an amount far greater than that which was specified under the express terms of the mortgage contingency clause, and they received a "counteroffer" commitment from a lender for a loan in an amount almost double that which they needed to secure pursuant to the terms of the contract of sale. Under these circumstances, the Allens did not have grounds to cancel the contract of sale pursuant to the terms of the mortgage contingency clause (see Post v Mengoni, 198 AD2d 487; Silva v Celella, 153 AD2d 847, 848). Thus, regardless of any malpractice on the part of the appellants in allegedly failing to tender written notice of cancellation, the Allens independently breached the contract of sale and forfeited their down payment to the plaintiff as liquidated damages (see Post v Mengoni, 198 AD2d 487; Silva v Celella, 153 AD2d at 848). "

Macaluso v Pollack , 2010 NYSlipOp 30276(U) , Justice Diamond, Nassau County, presents an interesting story of how a case can get dismissed. Beyond the storyline, the case presents analysis of liability of predecessor/subsequent attorneys, how the dissolution of a partnership affects legal malpractice litigation, what subsequent attorneys can accomplish in the Second Circuit, and potential liability of associate attorneys.

The original attorneys were to represent plaintiff in an employment discrimination case, but negligently failed to follow court orders in US District Court. Eventually, the case was dismissed by the US District Judge, on one particular day in which the attorneys did not appear for a conference. This was apparently the last straw, as there had been many previous late filings, etc. So case is dismissed. Attorneys for plaintiff at that point were a partnership of two attorneys. These attorneys then file an appeal to the Second Circuit, but leave out several essential filings which dooms the appeal.

Plaintiff hires set two of attorneys, who try to fix the appeal, but fail. The appeal is dismissed by the Second Circuit. This firm consists of attorneys and an associate attorney who are sued. Who is at fault? . In the end, first attorneys remain in the case, second attorneys are out, and the associate is out, too.

"On or about September 25 , 2007, the plaintiff then retained defendant Jason R. Corrado, P. C.
and Jason R. Corrado, Esq. (refereed to hereafter collective as Corrado). Plaintiff met with Corrado
at his law office in mid October, 2007. He advised her that the appeal that Pollack failed was defective because she failed to fie Forms C and D. On January 7 2008 she signed another retainer agreement with Corrado. The plaintiff retained Corrado to seek to restore the appeal to the  appellate calendar, reversal of the dismissal of the Federal discrimination case from the trial calendar and restoration to the trial calendar. Plaintiff asserts she paid a retainer of$5 000.00 and neither Corrado nor Rizzuto took any legal action with regard to the appeal. Plaintiff alleges that due to the legal malpractice of defendants law firm, Pollack, Kotler, Corrado and Rizzuto, she suffered the loss of right to litigate and would have prevailed in her underlying sexual harassment and  employment  discrimination case. Moreover she asserts each defendant breached the respective duty owed to her resulting in damages."

"The Corrado defendants argue that the dismissal of the discrimination action was caused solely by the action of defendant Pollack. Corrado asserts a motion to vacate had already been made
and a second motion could not be made while an appeal was already pending. Corrado contends that only where an aggrieved client can establish the presence of "extraordinary circumstances" would there be a chance of prevailing on the appeal and Judge Spatt had expressly ruled that "extraordinary circumstances" were not present.  The two dismissals of plaintiffs lawsuit (at district court and at the appellate level) were the result of the actions of plaintiff s initial counsel, co-defendant Pollack. For almost two years, plaintiff and her prior counsel, co-defendant Pollack failed to provide court-ordered discovery and even failed to appear at court-ordered conferences. Judge Wall, in his lengthy 48 page order concluded that co-defendant Pollack' s behavior was "undeniably negligent." . Plaintiff appealed Judge Wall' s order to Judge Spatt who adopted Judge Wall' s order and reiterated that defendant Pollack was negligent. In so holding, Judge Spatt used language such as "numerous late filings persistent failures  'counsel' s negligence , " irrational and bizarre claims" and "reckless manner Appeals were taken by co-defendant Pollack and once again, co-defendant Pollack failed to file the appropriate forms. The appeal was dismissed. (See Exhibit " , motion-in-chief). In July 2007, plaintiff appealed the Order of Dismissal to the United States Court of Appeals for the Second Circuit by notice filed by Pollack. However, Pollack failed to fie Forms C and D that were required to be filed with the appeal. In October 2007, the Second Circuit issued an order to show cause which provided that the appeal would be dismissed for failing to file Forms C and D. Corrado, who was retained by plaintiff after her case had been dismissed, to try and undo the harm caused by Pollack. The Second Circuit denied the application and as such Corrado was unable to reverse the dismissal of the action caused by Pollack' s actions. "

Quantum Meruit Claims: Is Interest Mandatory or Discretionary? by Joseph H. Einstein and Jonathan Gardner provides a well written analysis of whether pre-judgment interest is available to attorneys who prevail in a quantum meruit claim for fees.  The cases are all over the board, with differences between the Appellate Divisions and even within each individual Appellate Division.

From the article : "Quantum meruit claims are based on a hybrid of law and equity. There is no express contract between the parties, but one is implied because of the course of dealings between them. The cases are in conflict as to whether interest is mandatory or discretionary and the Court of Appeals has yet to weigh in on the issue. In this era, where cases may be pending for years, substantial dollars are at stake."\
 

"Not only is there no consistent jurisprudence resolving this issue to be found in either the state or federal courts, but different panels within the same department have reached different conclusions. Thus, in Ogletree, Deakins, Nash, Smoak & Stewart P.C. v. Albany Steel Inc.,3 the plaintiff law firm sued to recover fees, alleging breach of contract, quantum meruit, and account stated. The causes of action based on contract and account stated were dismissed, but a recovery was obtained on the quantum meruit claim. On the issue of interest, the Third Department stated:

Turning to the issue of interest, we reject defendant's categorization that plaintiff's claim is "equitable" and, therefore, any award of interest was discretionary (see, CPLR 5001[a]). Plaintiff's quantum meruit action is essentially an action at law, inasmuch as it seeks money damages in the nature of a breach of contract, "notwithstanding that the rationale underlying such causes of action is fairness and equitable principles in a general rather than legal, sense" (Hudson View II Assocs. v. Gooden, 222 A.D.2d 163, 168, 644 N.Y.S.2d 512). Thus, Supreme Court correctly determined that it was required to award interest (see, CPLR 5001[a]).

Notwithstanding, seven years later in Precision Foundations v. Ives,4 the plaintiff obtained a recovery in quantum meruit for certain work performed on the defendant's premises. On the issue of interest, without mentioning its prior decision in Ogletree, Deakins, the Third Department stated:

Turning to the Supreme Court's award of preverdict interest to plaintiff, we note that such awards are discretionary for a quantum meruit claim (see CPLR 5001[a]). Here, as already indicated, plaintiff waited almost four years after having rendered its services to bring this litigation. Under the particular circumstances herein, we do not find a sufficient basis for a discretionary award of preverdict interest on plaintiff's quantum meruit claim and, accordingly, reverse that award.

No explanation is offered as to why or how the "required" award in the first instance became "discretionary" in the second.

First Department cases also are at odds. In Ash & Miller v. Freedman,5 the court held that "an award of interest would be mandated in an action by an attorney to recover under a retainer agreement or in quantum meruit for the reasonable value of legal services rendered." However, in Hugh O'Kane Elec. Co., LLC v. Master North America Inc.,6 in affirming an award of interest, the court stated: "This is an action for breach of contract and not, as defendant asserts, an action sounding in quantum meruit." This clearly implies that interest on a quantum meruit claim should not be awarded as a matter of right. And in Leroy Callender, P.C. v. Fieldman,7 the court awarded prejudgment interest on a quantum meruit claim from the date payment was demanded, noting that "we find that plaintiff has established its entitlement" thereto, again suggesting a discretionary, not mandatory, approach."
 

One aspect of legal malpractice litigation is the failure to follow developments in the law. Rules change and not keeping up with the changes leads to mistakes, criticism and, later, litigation. The rules for non-party discovery have undergone some changes over the years, and today's decision is worth reading.

In Kooper v Kooper ; 2010 NY Slip Op 04147 ;Decided on May 11, 2010 ;Appellate Division, Second Department ;Angiolillo, J., J. the Court lays out an arc of procedure for non-party discovery. Prior to 1984 a motion was required. The rule was amended and then in 2002 the rule was amended again to allow for subpoenas instead of motions when seeking documents from a non-party. Now the rule again changes:
 

"Subsequent to Dioguardi, many of our cases involving nonparty discovery continued to hold that "special circumstances" must be shown (see e.g. Katz v Katz, 55 AD3d 680, 683; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725, 726; Attinello v DeFilippis, 22 AD3d 514, 515; Tannenbaum v Tenenbaum, 8 AD3d 360; Lanzello v Lakritz, 287 AD2d 601; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d 482, 483; Tsachalis v City of Mount Vernon, 262 AD2d 399, 401; Mikinberg v Bronsther, 256 AD2d 501, 502; Matter of Validation Review Assoc. [Berkun- Schimel], 237 AD2d at 615; Wurtzel v Wurtzel, 227 AD2d 548, 549), while many of our most recent cases have avoided the "special circumstances" rubric (see e.g. Cespedes v Kraja, 70 AD3d 622; Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 843-844; Tenore v Tenore, 45 AD3d 571, 571-572; Smith v Moore, 31 AD3d 628, 629; Matter of Lutz v Goldstone, 31 AD3d 449, 450-451; Thorson v New York City Tr. Auth., 305 AD2d 666). In light of its elimination from CPLR 3101(a)(4), we disapprove further application of the "special circumstances" standard in our cases, except with respect to the limited area in which it remains in the statutory language, i.e., with regard to certain discovery from expert witnesses (see CPLR 3101[d][1][iii]). On a motion to quash a subpoena duces tecum or for a protective order, in assessing whether the circumstances or reasons for a particular demand warrant discovery from a nonparty, those circumstances and reasons need not be shown to be "special circumstances."

Whether or not our cases have applied the "special circumstances" standard, however, they contain underlying considerations which the courts may appropriately weigh in determining whether discovery from a nonparty is warranted. We look, then, to the reasoning in our cases to find guidance with respect to the circumstances and reasons which we have considered relevant to the inquiry with respect to discovery from a nonparty. Since Dioguardi, this Court has deemed a party's inability to obtain the requested disclosure from his or her adversary or from independent sources to be a significant factor in determining the propriety of discovery from a nonparty. A motion to quash is, thus, properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty (see Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d at 726; Tannenbaum v Tenenbaum, 8 AD3d at 360; Lanzello v Lakritz, 287 AD2d at 601; Tsachalis v City of Mount Vernon, 262 AD2d at 401; Matter of Validation Review Assoc. [Berkun-Schimel], 237 AD2d at 615), and properly denied when the party has shown that the evidence cannot be obtained from other sources (see Cespedes v Kraja, 70 AD3d at 722; Tenore v Tenore, 45 AD3d at 571-572; Thorson v New York City Tr. Auth., 305 AD2d at 666; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d at 483). Our cases have not exclusively relied on this consideration, however, and have weighed other circumstances which may be relevant in the context of the particular case in determining [*6]whether discovery from a nonparty is warranted (see Abbadessa v Sprint, 291 AD2d 363 [conflict in statements between the plaintiff and nonparty witness]; Mikinberg v Bronsther, 256 AD2d at 502 [unexplained discontinuance of the action against the witness, formerly a party]; Patterson v St. Francis Ctr. at Knolls, 249 AD2d 457 [previous inconsistencies in the nonparty's statements]).

We decline, here, to set forth a comprehensive list of circumstances or reasons which would be deemed sufficient to warrant discovery from a nonparty in every case. Circumstances necessarily vary from case to case.

A criminal defendant is convicted and takes an appeal.  He loses.  Criminal defendant makes a CPL 440 motion.  He loses.  Now he finds out that no one seems to have his grand jury indictment.  Is that grounds for a successful appeal?  We don't know, but in Lee v Pierre
2011 NY Slip Op 32911(U); November 1, 2011; Supreme Court, New York County;Docket Number: 403536/10; Judge: Anil C. Singh was faced with this question, and a motion to dismiss.

Was this a breach of contract or legal malpractice?   Here, the attorney filed an appeal, while the correct act was to file a motion seeking leave to appeal.  The outcome was negative.  Is this grounds for a legal malpractice case?  Justice Singh said no.

"“A cause of action to recover damages for legal malpractice requires proof of three elements: (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant’s negligence, the plaintiff would have been successful in the underlying  action” (Cummings v, Donovan, 36 A.D.3d 648, 643 [2d Dept 20071). “Furthermore, to state a cause of action for legal malpractice arising from negligent misrepresentation in a criminal proceeding, the plaintiff must allege his or her innocence or a colorable claim of  innocence of the underlying offense” (u)(se e also Ben-zvi v, Kronish Lieb Weiner & Hellman LLP, 278 A.D.2d 167 [lStD ep’t 20001; Daly v. Peace, 54 A.D.3d 801 {2d Dep’t 20081; Boomer v. Gross, 34 A.D.3d 1096 [3d Dep’t 20061). After careful consideration, the Court finds that the documents exhibited by defendant are sufficient to make out a prima facie case in favor of defendant. The Court finds further that plaintiffs conclusory, self-serving affidavit is insufficient to establish the existence of any genuine issue of material fact or otherwise rebut defendant’s prima facie case."
 

We often wonder whether legal malpractice cases are treated with a type of royal exasperation by judges.  Often the feeling in the air is that legal malpractice cases maybe should not be brought, or that its somewhat shameful to bring one, or that perhaps attorneys are due a little extra consideration.  We wonder if that's what happened in Burbige v Siben & Ferber ;2011 NY Slip Op 07794 ; Decided on November 1, 2011 ; Appellate Division, Second Department. 
 

Did the judge just want to get this case over with? 

"The plaintiff commenced this legal malpractice action alleging, inter alia, that the defendants were negligent in failing to diligently prosecute a products liability action against the manufacturer of a ladder which broke while the plaintiff was descending it. After the conclusion of opening statements, the defendants' counsel moved, in effect, pursuant to CPLR 4401 for judgment as a matter of law or, in the alternative, for an offer of proof. The trial court reserved decision. However, before the close of the plaintiff's case, the court granted the defendants' motion based upon the plaintiff's failure to make an offer of proof that he would have been successful in the underlying products liability action by offering expert testimony that the ladder from which he fell was defective.

The trial court erred in granting that branch of the defendants' motion which was, in effect, pursuant to CPLR 4401 for judgment as a matter of law, and dismissing the action before the plaintiff rested (see CPLR 4401; Greenbaum v Hershman, 31 AD3d 607; McGhee v New York City Hous. Auth., 243 AD2d 544; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d 196). A motion for judgment as a matter of law is to be made at the close of an opposing party's case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party's case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable (see Cass v Broome County Coop. Ins. Co., 94 AD2d 822; see also Canteen v City of White Plains, 165 AD2d 856; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d at 197; Page v City of New York, 79 AD2d 573; Cetta v City of New [*2]York, 46 AD2d 762; Budner v Giunta, 16 AD2d 780; cf. Clifford v Sachem Cent. School Dist. at Holbrook, 271 AD2d 470, 470-471). Therefore, the judgment must be reversed and a new trial granted to the plaintiff. "

Plaintiff and a buddy go to attorney to start a business. Attorney is retained, and eventually Plaintiff is the odd-person out. Attorney's retainer agreement names only the buddy, and even though attorney sends letters to both Plaintiff and buddy, and creates documents which plaintiff and buddy sign, it is Buddy who comes out with 75% of the business. Is there a breach of fiduciary duty, and if so, what is the statute of limitations, 3 years or 6?

Some answers are found in Schlissel v Subramanian ;2009 NY Slip Op 52188(U) ; Decided on October 26, 2009 ; Supreme Court, Kings County ; Demarest, J. As to Breach of Fiduciary Duty:
 

""In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct" (Kurtzman v Bergstol, 40 AD3d 588, 590 [2d Dept 2007]).

"An attorney stands in a fiduciary relation to the client" (Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112, 118 [1995]). As a fiduciary, an attorney "is charged with a high degree of undivided loyalty to his [or her] client" (Matter of Kelly v Greason, 23 NY2d 368, 375 [1968]). "In this case, plaintiff alleges that Van Epps was her attorney, that he unilaterally advanced Wasan's interests over those of plaintiff, that he prepared certain corporate documents for the purpose of diluting and diminishing plaintiff's interest in T & T, and that he concealed material information from plaintiff concerning the adverse contents of these documents (Stark Affirmation in support of the Cross Motion, Ex. 2, Proposed Amended Complaint, ¶¶ 46-47). In opposition, Van Epps contends that he was not plaintiff's attorney and that, in any event, his representation of her had ended by the time she signed the corporate documents.

There is no set of rigid rules that must be followed to form an attorney-client relationship (see McLenithan v McLenithan, 273 AD2d 757, 758 [3d Dept 2000]). It may exist without an explicit retainer agreement or payment of fee (see Tropp v Lumer, 23 AD3d 550, 551 [2d Dept 2005]). "Rather, to establish an attorney-client relationship there must be an explicit undertaking to perform a specific task. In determining the existence of an attorney-client relationship, a court must look to the actions of the parties to ascertain the existence of such a relationship," (id., at 551 [internal quotation marks and citations omitted]) [*8]bearing in mind that plaintiff's unilateral belief does not confer upon her the status of defendant's client (see Volpe v Canfield, 237 AD2d 282, 283 [2d Dept 1997], lv denied 90 NY2d 802 [1997]). "

"Ultimately, the evidence as to the alleged existence of an attorney-client relationship between plaintiff and defendant Van Epps is inconclusive, depends on a fact-finder's [*11]assessment of the parties' credibility, and thus is outside the scope of the court's review on a motion to dismiss. Assuming the truth of her affidavits, plaintiff sufficiently alleges that Van Epps represented conflicting interests at the time plaintiff signed the corporate documents (see Shumsky, 96 NY2d at 168). Plaintiff thus adequately alleges the first element of her breach of fiduciary duty claim — the existence of a fiduciary relationship. Furthermore, having alleged misconduct by defendant by his alleged simultaneous representation of adverse interests, and damages directly caused by his misconduct (Proposed Amended Complaint, ¶¶ 47-50), plaintiff adequately pleads the other two elements of her claim. Defendant's motion seeking dismissal of the breach of a fiduciary duty cause of action pursuant to CPLR 3211(a) (7) is denied. Defendant's motion pursuant to CPLR 3211 (a) (1) is also denied inasmuch as defendant's affidavit and the documents attached thereto do not definitively and "conclusively establish[ ] a defense to the asserted action as a matter of law" (Leon, 84 NY2d at 88); the documentary evidence merely raises numerous issues of fact, rather than finally dispose of them (see Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 435 [1st Dept 1990]). "

"Defendant contends that plaintiff's claims against him are in the nature of professional malpractice and, therefore, are barred by the three-year statute of limitations of CPLR 214 (6), which is applicable to legal malpractice actions. Defendant asserts that by formulating her proposed amended complaint using language such as fraud and breach of fiduciary duty, plaintiff is attempting to circumvent the three-year limitations period applicable to legal malpractice claims pursuant to CPLR 214 (6) regardless of whether the underlying theory is based in contract or tort. However, as discussed, plaintiff adequately pleads a distinct cause of action for fraud against Van Epps which goes beyond ordinary malpractice (see Simcuski v Saeli, 44 NY2d 442, 453 [1978][finding that an independent cause of action for fraud against a professional may be established when exposure to liability "is not based on errors of professional judgment, but is predicated on proof of the commission of an intentional tort, in this instance, fraud"]; see also Mitschele v Schultz, 36 AD3d 249 [1st Dept 2006]). Defendant's malpractice argument fails, as the gravamen of plaintiff's suit is fraud. The motion to dismiss the action is therefore denied. "
 

In Hirsch v Fink ; 2011 NY Slip Op 07699 ; Decided on November 1, 2011 ; Appellate Division, First Department  we see an unusual situation.  Attorney-client sues his own attorney after an attorney-based litigation for legal malpractice.  In this particular case plaintiff-attorney loses on res judicata and subsequent attorney grounds.
 

Subsequent attorney grounds

"As defendant did not represent plaintiff in the underlying accounting action at the time the conditional order of preclusion was issued or in the next 30 days, during which plaintiff was to provide outstanding discovery, he was not responsible for plaintiff's answer being stricken (see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P.C., 82 AD3d 652 [2011]). Contrary to plaintiff's contention, his attorney-client relationship with defendant did not continue indefinitely simply because it was not terminated in writing (see Leffler v Mills, 285 AD2d 774, 776-777 [2001]). The record contains no "indicia of an ongoing, continuous, developing and dependent relationship" between plaintiff and defendant (see Muller v Sturman, 79 AD2d 482, 485 [1981]), particularly where plaintiff engaged another lawyer. Nor could defendant have moved timely, i.e., within 30 days, to reargue the order to permit plaintiff to disregard overly broad discovery requests (see CPLR 2221). "

Res judicata grounds

"To prevail in this legal malpractice action, plaintiff would have to show that but for defendant's negligence he would have obtained a better result in the underlying accounting action (Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [2007]). To make that showing, plaintiff would have to litigate the issues of which cases belonged to the alleged partnership between himself and the underlying plaintiff and the fees to which he was entitled. However, those issues were raised and decided against plaintiff in the underlying action (Frankel v Hirsch, 38 AD3d 712 [2007]), where he had a full and fair opportunity to litigate them, and he is precluded by the
doctrine of collateral estoppel from re-litigating them in this action (see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). "
 

Sometimes its obvious what responsibilities the attorney will take on in a new representation. If it's a motor vehicle accident, then the attorney is hired to prosecute the personal injury action, up to and including trial. Here, in Hallman v Kantor ;2010 NY Slip Op 03280 ;Decided on April 20, 2010 ;Appellate Division, Second Department the attorneys took on a more limited role.
 

From the decision: "The defendants submitted a retainer agreement reflecting that the plaintiff "understood, accepted and agreed" that the "scope of" their "engagement" was "to represent" her as a co-executor of her deceased father's estate. This documentary evidence conclusively established a defense to the plaintiff's claims of malpractice. The plaintiff alleged that she was the subject of a pending lawsuit, in effect, to recover sums of money due under certain notes she executed before her father died, and that the defendants committed legal malpractice by, inter alia, failing to speak with her "about the circumstances surrounding [her] signing of [those] notes," and failing to "question[ ]" their "validity." However, the documentary evidence demonstrated that the plaintiff's individual liability on the notes was a matter outside of the scope of the defendants' representation of the plaintiff in her capacity as co-executor of the estate (see CPLR 3211[a][1]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). [*2]"
 

Legal malpractice cases arise when there has been some departure from good and accepted practice, and a negative result follows.  What happens if a party waits too long to file for some relief?  Generally speaking, they will be precluded, and some attorney will tell the client that there has been a departure.  In Simon v Usher ; 2011 NY Slip Op 07305 ; Decided on October 20, 2011
Court of Appeals ; Jones, J. we see one such potential case.
 

"The question presented for our review is whether the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) to move for change of venue when a defendant serves its demand for change of venue by mail. We hold that it does.

On July 17, 2009, plaintiffs Allen and Barbara Simon commenced this medical [*2]malpractice action against defendants in Supreme Court, Bronx County. Defendants Sol M. Usher, Sol M. Usher, M.D., Maxwell M. Chait, White Plains Hospital Center and Hartsdale Medical Group, P.C., (collectively, the Usher defendants) served their verified answers and demands to change venue to Westchester County on August 20, 2009. Twenty days later, on September 9th, the Usher defendants moved to change venue to Westchester County on the grounds that, except for Usher and Usher, M.D., P.C., all of the defendants and the plaintiffs reside in Westchester County; Usher's and Usher, M.D., P.C.'s primary offices are in Westchester County; and plaintiff Allen Simon received the medical care at issue in Westchester County. The remaining defendants Sheldon Alter, Mid-Westchester Medical Associates, LLP, Westchester Medical Group, P.C. and Marianne Monahan served their answer on September 3rd and filed an affirmation in support of the motion to change venue on September 15th.

Supreme Court granted the motion to change venue to Westchester because "none of the parties to this action reside in Bronx County." The Appellate Division unanimously reversed and denied the motion. The court, among other things, rejected the Usher defendants' motion for a change of venue as untimely because it was made 20 days after service of the demand. It concluded that CPLR 2103(b)(2)'s five-day extension for time periods measured from service by mail did not apply to CPLR 511. The Appellate Division granted the Usher defendants leave to appeal to this Court and certified the following question for review: "Was the order of this court, which reversed the order of the Supreme Court, properly made?" We answer the certified question in the negative and now reverse.

When construing a statute, we must begin with the language of the statute and "give effect to its plain meaning" (Kramer v Phoenix Life Ins. Co., 15 NY3d 539, 552 [2010]). Pursuant to CPLR 511(a), a defendant shall serve with the answer, or prior to service of the answer, a demand "for change of place of trial on the ground that the county designated for that purpose is not a proper county." Subsection (b) permits defendant to "move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant." CPLR 2103 provides "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period." "The extension provided in CPLR 2103(b)(2) constitutes legislative recognition of and compensation for delays inherent in mail delivery" (Sultana v Nassau Hosp., 188 AD2d 627 [2d Dept 1992]). "

What must plaintiff prove in order to be successful in a legal malpractice case?  SOFIA FRANKEL, Plaintiff, - against - BRIAN F. McDONOUGH and DRINKER BIDDLE & REATH LLP, Defendants.10 Civ. 6106 (DAB)UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 123992;October 24, 2011 shows us that plaintiff must clear a very high bar.  Here, plaintiff was a stock broker who was the subject of a FINRA arbitration which ended in a multi-million dollar award against her and the brokerage.  She claims that her attorneys, who represented both her and the brokerage, could have had her dismissed personally and failed.

"It is well-established that in order to state a claim for legal malpractice under New York law, a Plaintiff must allege [*11] "(1) the negligence of an attorney; (2) the negligence was the proximate cause of the loss sustained; and (3) proof of actual damages." Rondout Landing at the Strand, Inc. v. Hudson Land Development Corp., 361 F.Supp.2d 218, 223 (S.D.N.Y. 2005).2 "In order to plead causation adequately in a legal malpractice claim, the plaintiff must show that but for the attorney's negligence, 'what would have been a favorable outcome was an unfavorable outcome. The test is whether a proper defense would have altered the result of the prior action.'" Flutie Bros. v. Hayes, No. 04 Civ. 4187 (DAB), 2006 WL 1379594 at *4 (S.D.N.Y. 2006) (quoting D'Jamoos v. Griffith, No. 00 Civ. 1361, at *5 (E.D.N.Y. 2001)). See also Pellegrino v. File, 738 N.Y.S. 2d 320, 323 (1st Dep't) (citations omitted), lv denied, 98 N.Y.2d 606 (2002). "This causation requirement, a high bar to attorney malpractice liability, seeks to insure a tight causal relationship exists between the claimed injuries and the alleged malpractice, and demands a nexus between loss and injury. Flutie Bros., 2006 WL 1379594 at *4 (citation and internal quotation marks omitted). The "'but for' [causation] prong requires the trier of fact in effect [*12] [to] decide a lawsuit within a lawsuit, because it demands a hypothetical re-examination of the events at issue absent the alleged malpractice." Littman Krooks Roth Ball, P.C. v. New Jersey Sports Prod., Inc., No. 00 Civ. 9419, 2001 WL 963949, at *3 (S.D.N.Y. Aug. 22, 2001) (citing N.A. Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy, et al., 397 N.Y.S.2d 142, 143 (2d Dep't 1977)"

"The Court finds that Plaintiff has not sufficiently alleged negligent conduct by Defendants. Plaintiff primarily alleges that Defendants committed malpractice by failing to challenge the arbitrators' entry of a joint and several award against Plaintiff and Lehman Brothers. However, as the New York Supreme Court and the Appellate Division have accurately observed, the Statement of Claim brought by the Underlying Claimants sought recovery from Lehman Brothers only as a result of Plaintiff's own misdeeds. Further, though the Damages section of the Statement of Claim did not specifically seek joint and several damages against Plaintiff and Lehman Brothers, it nevertheless [*13] expressly sought to impose several liability on Plaintiff for the entire amount of Underlying Claimants' out-of-pocket damages, all of which arose from her misconduct. (See Compl. Ex. A at 43 (seeking an award against Plaintiff and Goldman Sachs, jointly and severally, for the entire $7.7 million Underlying Claimants claimed as out-of-pocket losses, and against Lehman Brothers for only the last $2.2 million in out-of-pocket losses).) Consistent with even that portion of the Statement of Claim which Plaintiff now identifies as defective, therefore. Plaintiff could have been held severally liable for the entire amount which was awarded jointly and severally against her and against Lehman Brothers, as well as that which was awarded jointly and severally against her and Goldman Sachs. Since the joint and several award Plaintiff challenges could in any case have been awarded against her severally, or jointly with Goldman Sachs, wholly consistent with the ad damnum clause, Plaintiff's allegation that Defendants were deficient in allowing the entry of an award against her jointly and severally with Lehman Brothers fails to state a claim for attorney negligence."

The law of legal malpractice is different; it is ubiquitous.  We see this theme again and again in the published cases.  In products liability law, privity was jettisoned years ago.  It remains in legal malpractice law.  In In re: HIRSCH ELECTRIC CO., INC., Debtor. ALLAN B. MENDELSOHN, as Chapter 7 Trustee of the estate of HIRSCH ELECTRIC CO., INC., Plaintiff, M. CARL LEVINE, MORGULAS & FOREMAN, P.C., JERROLD L. MORGULAS and McLAUGHLIN & STERN, LLP, Defendants.; Case No. 894-81580-reg, Chapter 7, Case No. 809-8452-reg;UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NEW YORK;2011 Bankr. LEXIS 4040;
October 20, 2011 we see the effect:

"In the underlying action, the Debtor (subcontractor) sued Morse (general contractor) and LIJ (owner), for contract damages. All agree that the claims against Morse were worthless because Morse has ceased operations and any judgment would be uncollectible by the Debtor. The Plaintiff argues, however, that the Debtor's claims against LIJ were valid and valuable. The Defendants argue that the Debtor had no viable cause of action against LIJ because there was no actionable legal relationship between the Debtor and LIJ, i.e., no privity. The Plaintiff argues that the claims against LIJ were valid, but for the Defendants' malpractice, because Morse (with whom the Debtor clearly had a contractual relationship) was an agent of LIJ with the ability to create [*4] liability for LIJ under the subcontract. Thus, the theory is that the Debtor had valid claims against LIJ as the principal for whom the agent, Morse, was acting.

For the reasons that follow, the Court finds that there was no general agency relationship between Morse and LIJ, and as such no privity between the Debtor and LIJ which would have permitted a direct claim by the Debtor against LIJ. The Plaintiff has conceded that a finding by the Court that no agency relationship exists would defeat the legal malpractice claims in this case. Therefore, summary judgment shall be entered in favor of the Defendants."

"In order to establish a claim for legal malpractice, the Plaintiff must prove "that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community . . . . In addition, the plaintiff must establish that the attorney's negligence was a proximate cause of the loss sustained, that the plaintiff incurred actual damages as a direct result of the attorney's actions or inaction, and that but for the attorney's negligence, the plaintiff would have prevailed in the underlying action or would not have sustained any damages . . . ." Cannistra v O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, 728 N.Y.S.2d 770 (N.Y. App. Div. 2001) (citations omitted)."

"The Plaintiff urges this Court to find that where there is a principal/agent relationship between a project owner and a general contractor, privity exists between the subcontractor and the owner despite the absence of any direct contact between those parties. This theory derives from the general rule under New York law, that "an agent for a disclosed principal is not liable to third parties for any sums owed by the principal." Owen Steel Co., Inc. v. George A. Fuller Co., et al., 563 F.Supp. 298, 300 (S.D.N.Y. 1983) (finding agency existed between general contractor and owner and dismissing subcontractor claims against general contractor). This means that a general contractor is not liable to a subcontractor for contract damages where it is proven that the general contractor was acting as the agent of the owner. Id. The logical extension of this rule, relevant in the context of the instant matter, is that in situations where a general contractor is found to be the agent for the owner, a subcontractor's contract claim is properly brought against the [*14] owner even if no direct contractual relationship exists between the subcontractor and the owner. Cf. Superb Gen. Contr. Co. v. City of New York, 893 N.Y.S.2d 866 (N.Y. Sup. Ct. 2010) (dismissing direct subcontractor claim against project owner where construction manager was not an agent or representative of the owner)."
 

"For all of the foregoing reasons, the Court grants summary judgment in favor of the Defendants. Judgment will issue in favor of the Defendants."

Plaintiff buys a house which it says was illegally constructed, and further says that since the seller worked for Oyster Bay, the town overlooked illegal construction and gave a Certificate of Occupancy.  This action, JULIE LAMOTHE and JUSTIN LAMOTHE, Plaintiffs, -against- THE TOWN OF OYSTER BAY, THE TOWN OF OYSTER BAY DEPARTMENT OF PLANNING AND DEVELOPMENT, et al, 08-cv-2078 (ADS)(AKT);UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 120843;October 19, 2011, then went the way so many cases do.  Plaintiffs and attorneys parted ways, second attorney came on board, and then left, and plaintiffs now proceed pro se.  They ask to amend the scheduling order.  They say that vital allegations and evidence were overlooked by their first attorney.  May they amend?

"On May 21, 2008, Plaintiffs Julie Lamothe and Justin Lamothe ("the Plaintiffs") commenced this action against the Town of Oyster Bay (the "Town"), the Town's Department of Planning and Development, and several municipal employees (collectively the "municipal defendants"), as well as against individual Defendants Vincent Acquilino and Diane Aquilino, seeking damages associated with defects in a home purchased in 2005. Following this Court's dismissal of all claims against the Aquilinos and certain claims against the municipal defendants, the only viable claims that remain against the municipal defendants are for deprivation of the Plaintiffs' constitutional [*2] rights to equal protection of the laws and substantive due process, pursuant to 42 U.S.C. § 1983, and aiding and abetting those violations. Presently before the Court is the Plaintiffs' motion to amend their complaint to assert: (1) certain additional facts that they claim their two prior counsels failed to present to the Court in the initial complaint; and (2) a number of new causes of action against the remaining Defendants, mainly grounded in fraud and negligence, that are related to the same underlying events as the initial complaint. For the reasons set forth below, the Court denies the Plaintiffs' motion."

"The Defendants oppose the Plaintiffs' motion to amend on the grounds that the amendment is futile; that the motion is untimely; that it will result in undue delay; and that it will cause the Defendants undue prejudice. At its core, the Defendants' argument, as stated in their joint opposition to Plaintiffs' motion to amend their complaint dated August 9, 2011, is that the Plaintiffs are utilizing Federal Rule of Civil Procedure 15 in an attempt "to start the case over" as pro se litigants. (Docket Entry No. 103.) With regard to whether an amendment would be futile, the Defendants contend that the proposed amendments merely seek to resurrect and add volume to claims that were dismissed by this Court more than two years ago. As to untimeliness, the Defendants maintain that the Plaintiffs have waited too long to move to amend. They point out that discovery in this matter closed on November 9, 2009, after two prior extensions by United States Magistrate A. Kathleen Tomlinson at the Plaintiffs' request. In addition, the Defendants emphasize that the case is already at the summary judgment stage, as Rule 56.1 [*14] Statements have been exchanged.

With regard to undue prejudice, the Defendants assert that granting the Plaintiffs leave to amend their complaint would require that discovery be reopened, because the entire course of discovery was geared towards only the Section 1983 claims that remained after the early dismissal of the other causes. Finally, the Defendants claim that any additional discovery, along with the ensuing delay in the case that would result, would be unfair because the case is more than three years old and summary judgment procedures have already been initiated.

In response, the Plaintiffs note that the reason why these claims were not previously filed is because of the alleged inadequacies of their first counsel—against whom they now have a malpractice suit—and the similar alleged inadequacies of their successor counsel. The Plaintiffs do not speak directly to the potential unfair prejudice to the Defendants that may result from the amendment. Instead, the Plaintiffs emphasize in their response to the Defendants' Opposition to amend the complaint dated August 15, 2011, that their purpose for filing this amended complaint is "to start this case over from the beginning" and [*15] "to correct what went miserably wrong." (Docket Entry No. 106.)"

In DUSHYANT KURUWA and MONICA ARGUELLES, Plaintiffs, -v.- MILTON L. MEYERS, Defendant.;09 Civ. 4412 (GWG);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ;2011 U.S. Dist. LEXIS 122466; October 21, 2011, we a most unusual case of successful pro-se litigants.  Even more so, the Court granted punitive damages agaisnt the attorney.  In the opening paragraphs, we may see the reason.
 

"On April 12, 2011, after the Court denied both parties' motions for summary judgment, see Order, filed Mar. 2, 2011 (Docket # 40), the Court ordered the parties to submit a proposed joint pretrial order by May 6, 2011. Order, filed Apr. 12, 2011 (Docket # 43). The Court directed Meyers to supply his portion of the pre-trial order materials to plaintiffs by April 22, [*2] 2011. See id. ¶ 2. At Meyers' request, this deadline was extended to April 27, 2011. Memorandum Order, filed Apr. 25, 2011 (Docket # 44). Meyers did not comply with this deadline but instead wrote a letter after the deadline seeking an extension sine die for medical reasons, which was granted. See Memorandum Order, filed May 6, 2011 (Docket # 47). By Order dated May 24, 2011, the Court gave Meyers an extension until June 15 to submit his pre trial order materials to plaintiffs. See Order, filed May 25, 2011 (Docket # 48). The Court extended this deadline to June 22. See Order, filed June 15, 2011 (Docket # 49). Meyers failed to meet this deadline, however, and has never asked that it be extended.

When the June 22 deadline was not met, the Court issued an Order to Show Cause directing Meyers to show cause why he should not be sanctioned for his failure to supply his portion of the joint pre-trial order materials. See Order, filed June 29, 2011 (Docket # 50). Not only did Meyers fail to provide a reason to the Court as to why he should not be sanctioned, he failed to respond to the Order to Show Cause at all. Accordingly, the Court issued an order finding Meyers in default as a sanction [*3] pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vi). See Order, filed July 14, 2011 (Docket # 51)"

"Meyers is an attorney with an office in New York, NY. Compl. ¶ 4. Kuruwa is a citizen of India and his wife, Arguelles, is a citizen of Mexico. Id. ¶¶ 2,3. In August 2007, Kuruwa was hired "as a Project Engineer by the Turner Corporation." Id. ¶ 8. At the time he was hired, Kuruwa had an H1-B visa which authorized him to work in the United States. Id. ¶ 10. Kuruwa had obtained the H1-B visa in or around 1999 and it was set to expire on July 28, 2008. Id. ¶¶ 10-11. As the dependent of an H1-B visa recipient, Arguelles had an H-4 visa. Id. ¶ 17.

In September 2007, Kuruwa agreed that Meyers would process his visa paperwork to extend his stay past July 28, 2008. Id. ¶ 12. Meyers was aware that Kuruwa's visa expired in 2008 and that he needed to act quickly. See Email from M. Meyers to R. Vigilante, dated Aug. 21, 2007 (annexed as Ex. 16 to Pl. Aff.). Kuruwa's employer, Turner Corporation, agreed to sponsor Kuruwa for a green card application. Compl. ¶ 20. Meyers agreed to submit the green card application [*8] for Kuruwa. Id. ¶ 21. Meyers claimed to have filed the green card application, see id. ¶ 23; id. Ex. A, but in fact did not do so, id. ¶ 24. Nor did Meyers file for an extension of the H1-B visa before it expired. Id. ¶ 25. Kuruwa did not learn that his paperwork was not completed until March 7, 2009, when he was notified by the Department of Homeland Security that a petition to extend his B-2 status had been denied. Id. ¶ 26. Kuruwa also learned that someone, without his authorization, had filed a petition to change his status to "B1/B2 - business or tourist." Id. ¶ 27, 29.

Kuruwa and Arguelles departed from the United States in July 2009, though they later returned. The record on this motion does not explain how they returned or what their current immigration status is. The Court notes that they appeared at a court conference seeking to relieve their attorney on October 1, 2010."

"Meyers does not dispute the amount that Kuruwa asserts constitutes one-year's salary at Turner Corporation.3 Instead, he argues that Kuruwa had a duty to mitigate his damages. Def. Aff. ¶ 4. Meyers is correct that under New York law a "harmed [*11] plaintiff must mitigate damages." Air Et Chaleur, S.A. v. Janeway, 757 F.2d 489, 494 (2d Cir. 1985) (citations omitted); accord Wilmot v. State, 32 N.Y.2d 164, 168 (1973) ("[T]he party seeking damages is under the duty to make a reasonable effort to avoid consequences of the act complained of.") (internal quotations and citations omitted). However, the burden is on the defendant to introduce "evidence to prove that plaintiffs could have lessened their damages." Air Et Chaleur, S.A., 757 F.2d at 494 (citation omitted). A defendant must show that the plaintiff failed to mitigate, and that reasonable efforts "would have reduced the damages." Tatar v. Elite Gold, Inc., 2002 WL 31682391, at * 2 (S.D.N.Y. Nov. 26, 2002) (citations omitted); accord Coastal Power Int'l Ltd. v. Transcont'l Capital Corp., 10 F. Supp. 2d 345, 370 (S.D.N.Y. 1998) (citations omitted).

FOOTNOTES

3 Kuruwa seeks $109,227 as one year's salary. See Pl. Aff. at 9; Ex. 8A, 8B. While the total amount supported by the documentary evidence Kuruwa provides — including a promised bonus, a 15% locality adjustment, and a July 1, 2008 merit increase — would seem to support a slightly greater annual salary, we will accept Kuruwa's figure.

Despite [*12] having the burden to show the failure to mitigate, Meyers has provided no evidence on this point. He merely states his own belief — the foundation of which is not revealed — that "while markets and construction were depressed here that apparently was not the case in India." Def. Aff. ¶ 4. This vague and unsupported statement is insufficient to show that Kuruwa failed to mitigate damages. Accordingly, Kuruwa is entitled to damages of $109,227, or one year's salary, as Kuruwa requests. See Pl. Aff. at 9; Ex. 8A, 8B.

In addition, Meyers' failure to inform plaintiffs that their visas had expired led them to incur costs in arranging for a voluntary departure from the United States. See Pl. Aff. at 13. In order to avoid being subject to a mandatory ten-year ineligibility period, see 8 U.S.C. § 1182(a)(9)(B)(i)(I), plaintiffs voluntarily departed the United States on July 18, 2009. Pl. Aff. at 13, Ex. 11D. As it was Meyers' failure to file the necessary paperwork and inform plaintiffs of their illegal status that led to their voluntary departure, Kuruwa is entitled to the expenses related to arranging for and effectuating the voluntary departure, or $6,808. See Pl. Aff. 13; Ex. 11A-G."

"Punitive damages are available where the plaintiff demonstrates "conduct that was directed to the [*17] general public or that evinced the requisite 'high degree of moral turpitude' or 'wanton dishonesty.'" Williams v. Coppola, 23 A.D.3d 1012, 1013 (4th Dep't 2005) leave dismissed 7 N.Y.3d 741 (2006) (quoting Walker v. Sheldon, 10 N.Y.2d 401, 405 (1961)). The Court believes the standard of "wanton dishonesty" has been met in that it is alleged that Meyers was dishonest in asserting that he had filed a green card application on Kuruwa's behalf. Accordingly, the Court in its discretion awards $25,000 in punitive damages to Kuruwa and $5,000 in punitive damages to Arguelles."
 

A post-matrimonial legal malpractice case has some elements of sadness.  From the court's decision, desperation is apparent.  Wife has divorced, and four years later still is trying to get what she believes is justice.  Attorney seems to be caught in a cycle of client dissatisfaction and litigation.

What finally emerges as the reason for the decision is the settlement of the matter itself.  This analysis, while elemental, has emerged as a raison d'etra, that is, the settlement wording acts as a barrier to looking at whether the settlement was accurate and whether there were "side-deals,"  Hence, there is no investigation, and no look at the underlying circumstances.  This is another case in the Katebi line.

Castano v Richman; 2011 NY Slip Op 32686(U); October 11, 2011; Sup Ct, Nassau County
Docket Number: 007770/11 ; Judge: Jeffrey S. Brown.  "Plaintiff alleges that she entered into the settlement based upon representations and assurances by defendant that any errors or  missions in the stipulation would be separately dealt with later on by a "private agreement" with the attorney for the plaintiffs former husband. Plaintiff alleges that defendant failed to inform her that she had no recourse to obtain alleged necessar financial items not included in the stipulation of settlement upon allocution in open court. Plaintiff contends that she would never have entered into the  settlement if defendant had not promised her that she could later enter into a side agreement."

"While 'ra) claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel' (Bernstein Oppenheim Co. 160 AD2d 428 430 554 NYS2d 487 (1990)), here, the complaint is contradicted by the evidentiar material submitted on the motion to dismiss (see Guggenheimer Ginzburg, 43 NY2d 268 275 372 NE2d 17, 401 NYS2d 182 (1977)). (Katebi
v. Fink 51 AD3d 424.) The two separate allocutions by plaintiff on May 28, 2008 and May 30
2008 with respect to her underlying matrimonial action, constitute documentar evidence that
contradicts the allegation of legal malpractice. On each occasion during which plaintiff was
allocuted by the court, plaintiff indicated that she was satisfied with the settlement of the action;
that she was satisfied with the services of her attorney; that she understood the terms of the
settlement; that she knew she was giving up the right to a trial of the action; and that she was
entering into the stipulation by her own free will.

Plaintiffs claim that defendant told her what to say for the allocutions is without merit. It would be ineffective assistance of counsel if defendant hadn t advised plaintiff of the types of questions the court would ask her in the allocutions. Additionally, the recorded conversations between the parties is inadmissible evidence on this motion as plaintiff has failed to properly authenticate same by clear and convincing evidence that the tape is genuine and has not been tampered with (see generally, People v. Ely, 68 N. Y.2d 520). "

What happens when four people get together and decide to open a restaurant?  Often enough, they are friends, and  have only the highest regard for each other.  They trust each other, and have high expectations that each is ready to get going and get the business started.  It does not always work that way.  We see, in   Battaglia v Grillo ;2011 NY Slip Op 32691(U);October 11, 2011 ;Sup Ct, Nassau County ;Docket Number: 014807/2010 ;Judge: Ira B. Warshawsky, just how sour it might all go.

"Giovanni Battaglia ("Battaglia ), Nancy Piraino ("Nancy P. ), Massimo Grillo Grilo ), and Bartolomeo Piraino ("Bart P. ) embarked on a project of opening a restaurant to be known as The Cove Cafe, at 58-60 Landing Road, Glen Cove, NY. Drago was the builder they used to build-out the restaurant, and movant, defendant and third-party defendant, was the attorney who drafted the operating agreement for plaintiff Macabagi, LLC. He also represented Nancy Piraino in her acquisition of the real property in her own name, for which she obtained a $200 000 mortgage against the purchase price of $275 000. "

"The Second Amended Complaint includes a Second Cause of Action against Spadaccini in which Battaglia alleges that he retained Spadaccini to represent his interests in connection with the purchase of the real estate. He claims that he was advised by Spadaccini that each of the four individuals were to contribute $100 000 toward the purchase and development of the property, with each of them having a 25% interest in the real estate. Instead,. Spadaccini arranged for the property to be purchased in the name of Nancy P. only, with his contribution being used toward the purchase, and the property subjected to a mortgage, thereby diluting whatever interest he was to obtain in the property. Nancy P. subsequently executed a deed to Macabagi, LLC on April 6, 2010. As a consequence, Battaglia who has a 25% membership interest in Macabagi, is a 25% owner of the real estate, subject to a $200 000 mortgage. He claims that his investment is in jeopardy because Grilo and Bart P. , also each holding a 25% membership interest in the property, have not made their $100 000 contribution."

"Allegations with respect to alleged violations of the disciplinary rules cannot, standing alone, substantiate a claim for professional malpractice. (Pilard v, Goodman 82 A.D.3d 541 (1 Dept. 2011)). Where, however, the joint representation produces a circumstance in which counsel
is precluded from asserting a defense on behalf of one, because it would act to the detriment of the others, a finding of malpractice may follow. "

"Thus, it cap be seen, that an ostensible violation of the disciplinary rules, the [* 4] representation of parties with differing interests, led to the imposition of liability on an individual who had no role in the hiring or firing of the complaining former employee.. Such is not the case in this instance. The parties have a commonality in interest in acquiring title to a parcel of real property in the name of a limited liability company in which they each hold a 25% membership interest.  This is precisely what they now have, albeit subject to a $200 000 mortgage obtained by Nancy P. in conjunction with the purchase of the property in her own name. Since the parties seem no longer interested in proceeding to the final step of operating The Cove Cafe at the premises, the remedy which they ought be seeking is the dissolution of Macabagi , LLC and the distribution of the assets in accordance with the contributions made by the members. There is nothing more than speculation that those who have contributed to the purchase and renovation of the premises will not be made whole. Neither plaintiffs nor defendant and third-party plaintiff have yet to sustain actual or ascertainable damages, and certainly not because of the representation of all members of Macababi by Spadaccini. If the proposal to open a restaurant fails, it can be blamed on the lack
of funding; with some persons not even making their initial $100 000 contribution.
Battaglia claims that the premises are subject to a contract of sale for $375 000, and even
that is subject to obtaining a use variance. If title closes for that amount, the proceeds will not be
sufficient to satisfy the mortgage, which is in default, pay delinquent real estate taxes , and
reimburse him for his initial $100 000 investment. Nevertheless, unless and until that occurs
Battaglia has not sustained actual damages."

Attorney represents X and then later represents X's opponent in litigation. Aside from the fact that the opponent is X's mother, when does such representation cause a conflict and legal malpractice? We see in Benaquista v Burke ;2010 NY Slip Op 04896 ;Decided on June 10, 2010
Appellate Division, Third Department that there is no per se rule.
 

"Plaintiff and his mother co-owned two corporations and defendant represented the corporations in various matters. In December 2002, plaintiff was removed as an officer and director of one of the corporations. Shortly thereafter, his mother and the corporations commenced an action against him for, among other things, mismanagement and misappropriation [*2]of corporate funds. Defendant was the attorney of record for plaintiff's mother and the corporations in that action. Plaintiff then commenced this action alleging, as pertinent here, that defendant committed legal malpractice. In the complaint, plaintiff alleged that he had previously sought legal advice from defendant concerning business issues between plaintiff and his mother and, in doing so, he had discussed confidential legal and personal matters with defendant. Plaintiff asserted that defendant then used such confidential information against him in commencing the action on behalf of his mother and the corporations, as a result of which he had suffered damages.

In order to recover for legal malpractice, plaintiff must demonstrate that defendant "'failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession'" (Bixby v Somerville, 62 AD3d 1137, 1139 [2009], quoting Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 301-304 [2001]) and that plaintiff was damaged as a result of such negligence (see Bixby v Somerville, 62 AD3d at 1139). Nonetheless, as the proponent of a motion for summary judgment, defendant had the initial burden of establishing his prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant met this burden by proffering defendant's sworn affidavit, alleging that his firm had represented plaintiff's mother and the corporations prior to his representation of plaintiff — which consisted only of the incorporation of a business owned by plaintiff — and that no conflict of interest existed. In addition, defendant provided plaintiff's bill of particulars and asserts that it fails to specifically identify any personal or confidential information used by defendant against plaintiff or any damages suffered by plaintiff [FN2]. Thus, the burden shifted to plaintiff to raise a question of fact requiring a trial (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

Plaintiff's only opposition to defendant's cross motion was an attorney affirmation and various documents which, as relevant to this appeal, consisted primarily of billing records. Inasmuch as plaintiff failed to proffer any sworn allegations of an individual with personal knowledge of the relevant facts and the documents submitted were not in admissible form, his opposition was insufficient to sustain his burden of raising a triable issue of fact to defeat defendant's entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d at 327; Zuckerman v City of New York, 49 NY2d at 562; Bixby v Somerville, 62 AD3d at 1139; Polyglycoat Ctr. of Conn. v Arace's Ford, 126 AD2d 844, 845 [1987]). Accordingly, Supreme Court properly granted defendant's cross motion for summary judgment dismissing the complaint. "
 

Justice Schack's decision in Taveras v American Tr. Ins. Co.; 2011 NY Slip Op 51831(U) ; decided on October 17, 2011 ;Supreme Court, Kings County ; Schack, J. is an eye-opener.  Basically put, this was a three car accident in which American Transit had two of the cars.  Each of the cars had a $ 100,000 policy.  The entire case could have been settled within policy limits, yet American Transit failed to offer the policies.  The verdict, even after reduction by the Appellate Division was $2.25 million.
 

The decision is well worth reading, as Justice Schack has lovingly quoted from the deposition transcripts and from the trial transcript. The effect is devastating.

One interesting sidelight was the preclusion of expert reports by defendants based upon late production.  We wonder if a legal malpractice case will follow this bad faith case.

"The first time AT weighed the comparative risk to its insured AMIR was on April 26, 2006, after defendants had been precluded from offering the testimony of ELRAC's experts. (Jay Ellenberg EBT, pp. 86 - 87). AT admitted that it did not have the information necessary to evaluate the relative financial risk to its insured and failed to do so. (Jay Ellenberg EBT, p. 165, p. 169). Mr. Ellenberg testified that based upon the relative exposure of AMIR and AT, AT failed to put itself on equal footing with their insured at the time the damages phase of the trial commenced. (Jay Ellenberg EBT, p. 230)."

"Therefore, based upon applicable case law and AT's own admissions, AT is estopped from denying that AMIR is its insured. Defendant AT has absolutely no good faith basis to deny AMIR is its insured. It is perfectly clear that AT represented and defended AMIR for nine years. Even after becoming aware, in 2009, of STEED's death, AT did nothing to disclaim coverage and on a number of occasions admitted that AMIR is its insured. Further, it is disingenuous for AT to claim that it did not know STEED was dead while it actively represented him and assigned defense counsel to him. This is yet another example of AT's pattern of gross disregard for the interests of its insureds. Obviously, AT would have learned of STEED's death if AT fulfilled its obligation to communicate with its insureds at any point during the pendency of the underlying action.

Further, defendant AT, in its instant cross-motion, in a deliberate attempt to deceive the Court and harm its insured, AMIR, takes the absurd position that only the $100,000 PLATFORM/SINGH policy existed and was available to TAVERAS' claim. This is an outrageous mischaracterization of the actual facts and another failure to handle the truth. Defendant AT's counsel manufactured for the instant cross-motion the fiction that AT's $100,000 settlement offer during the damages portion of the underlying trial was actually an offer of the entire coverage available. This is false and cannot be countenanced by the Court. The actual record of the underlying trial makes it clear that at no time during the trial did AT ever disclaim coverage for AMIR or limit their settlement discussion to only the $100,000 PLATFORM/SINGH policy. Both AT's Vice President and Treasurer Richard Carroll and AT's Claims Examiner Rick Persaud, in their sworn depositions, admit that the $100,000 offer to settle the underlying action, which Mr. Sands, in ¶'s 3 (d) and 26 of his affirmation in support of cross-[*36]motion, asserts was only the $100,000 PLATFORM/ SINGH policy, was in reality an offer of $50,000 each from the STEED/AMIR and the PLATFORM/SINGH policies. (Rick Persaud EBT, pp. 116 - 117; Richard Carroll EBT, p. 162). Accordingly, the $100,000 offered was not the total amount of available coverage. AT offered half of each of the two available policies. This proved to be inadequate, in light of AT's own evaluation of the risks to its insureds and the economic damages presented in excess of $1,500,000 on behalf of TAVERAS.Therefore, in the absence of triable issues of fact, the Court denies defendant AT's cross-motion for summary judgment and dismissal of plaintiff's complaint. "

Cases rarely are dismissed by the Court for reasons that have absolutely nothing to do with the merits, almost never sua sponte.  Here is an exception.  This plaintiff was enjoined from bringing any further litigation in either State or Federal court for anything to do with his former apartment.  Nevertheless...

RAFFAELE M. PANDOZY, Ph.D., Plaintiff, - against - DAVID A. GABAY, Defendant.;10 Civ. 3473 (PGG);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 112303;September 29, 2011, Decided ;September 30, 2011, Filed
 

"Pandozy has been enjoined from "commencing, without prior leave of court, any further federal court actions relating in any way (1) to the sale of his apartment; (2) to the numerous lawsuits concerning the sale of his apartment; or (3) to the individuals and attorneys who were involved in that transaction."1 Pandozy v. Tobey, No. 06 Civ. 12885(CM)(THK), 2007 U.S. Dist. LEXIS 97901, 2007 WL 2815627, at *1 (S.D.N.Y. Sept. 24, 2007); see also Pandozy v. Segan, 518 F. Supp. 2d 550, 558 (S.D.N.Y. 2007) (enjoining Pandozy "from commencing, without prior leave of the Court, any federal action in this Court relating in any way to (1) the sale of the [*2] Pandozy's cooperative apartment at 280 Lafayette Street, New York, New York (the 'Apartment') to Brock Wylan, (2) litigation related to the sale of the Apartment or the events surrounding that sale, or (3) the conduct in that transaction by individuals and attorneys involved in the litigation arising from such sale"). Gabay moves to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Because this Court concludes that Pandozy's complaint falls under the court's previous injunction against filing such suits without leave, Pandozy's complaint will be dismissed sua sponte and Gabay's motion to dismiss will be denied as moot."

"The lawsuits [*3] concerning the sale of Pandozy's apartment began when he placed his New York apartment up for sale and signed a contract with a buyer. (Am. Cmplt. ¶ 7) Pandozy claimed that the sale was never approved by the cooperative board, and attempted to cancel the contract. (Id.) The buyer sued Pandozy in state court and was awarded specific performance. See Wylan v. Pandozy, No. 600211/04 (N.Y. Sup. Ct. July 27, 2004).

A series of lawsuits followed. Pandozy sued the cooperative and its general counsel, alleging intentional interference with contractual relations and breach of fiduciary duty; that case was dismissed on April 4, 2006. Pandozy v. Lafayette Studios, Index No. 600495/05 (N.Y. Sup. Ct. April 4, 2006). The buyer's attorney, Lawrence Segan, then brought a successful action for libel against Pandozy in Segan v. Pandozy, Index No. 104238/05 (N.Y. Sup. Ct. Feb. 21, 2006). Pandozy also filed a federal action challenging the specific performance judgment and alleging fraud upon the court, Pandozy v. Segan, No. 06 CV 7153(VM) (S.D.N.Y. filed Sept. 18, 2006), which was dismissed on September 28, 2007. Pandozy then filed the action Pandozy v. Tobey, No. 06 Civ. 12885(CM) (S.D.N.Y. filed Nov. 2, 2006) [*4] , against the cooperative board, alleging conspiracy to harass him and oust him from the Apartment, malicious and frivolous prosecution, and discrimination on the basis of financial status; that action was dismissed on September 25, 2007. Finally, in Pandozy v. Robert J. Gumenick, P.C., No. 07 Civ. 1242(NRB) (S.D.N.Y. filed Feb. 16, 2007), Pandozy asserted claims against five attorneys who represented him in various stages of his litigations, charging them with fraud, legal malpractice, breach of contract, and deceptive practices; this action was dismissed on May 23, 2008.

Gabay represented Pandozy in connection with two of these lawsuits — an appeal from the libel judgment in Segan v. Pandozy, Index No. 104238/05 (N.Y. Sup. Ct.), and the malpractice action against Pandozy's former attorneys in Pandozy v. Robert J. Gumenick, P.C., No. 07 Civ. 1242(NRB) (S.D.N.Y.). It is clear that both of these actions fall under the broad injunctions issued on September 24, 2007, Tobey, 2007 U.S. Dist. LEXIS 97901, 2007 WL 2815627, at *1, and September 27, 2007, Segan, 518 F. Supp. 2d at 558. The injunctions apply to actions that relate "in any way" to the sale of Pandozy's apartment, lawsuits concerning the sale of the [*5] apartment, or the attorneys involved. The libel action was brought by the buyer's attorney, and Pandozy's libelous statement was made in a letter he sent to the cooperative's shareholders that discussed his pending appeals from the specific performance suit and asked the shareholders to submit affidavits to the judge in that action. (Am. Cmplt. Ex. 19) Clearly, the libel action — and the subsequent appeal from it — "relat[e] . . . (1) to the sale of [Pandozy's] apartment; (2) to the numerous lawsuits concerning the sale of his apartment; [and] (3) to the individuals and attorneys who were involved in that transaction." Tobey, 2007 U.S. Dist. LEXIS 97901, 2007 WL 2815627, at *1.

Similarly, Gabay's representation of Pandozy in the legal malpractice action against five of Pandozy's former attorneys falls squarely within the injunctions. The defendants in that action — Robert Gumenick, Victor Worms, Gary Adelman, Jeffrey Roth, and Sherwood Salvan — represented Pandozy in his previous suits stemming from the sale of his apartment: Gumenick was hired in connection with the specific performance action; both Worms and Adelman represented Pandozy at various points in the specific performance action; Roth represented Pandozy [*6] in the libel suit and the breach of fiduciary duty suit brought against the cooperative; and Salvan was hired to initiate a lawsuit for malpractice against Gumenick. (Am. Cmplt. ¶ 25) Accordingly, Pandozy's malpractice action against these defendants for their alleged deficiencies in his prior cases involving the apartment "relat[es] . . . to the numerous lawsuits concerning the sale of his apartment . . . [and] to the . . attorneys who were involved in that transaction." Tobey, 2007 U.S. Dist. LEXIS 97901, 2007 WL 2815627, at *1."
 

Plaintiff-.Attorney in this RICO action sues other attorneys who have brought legal malpractice cases, some against him.  Plaintiff was at one time a major player in the plaintiff's legal malpractice world.  Now, in W. ROBERT CURTIS, Sc.D., J.D, CURTIS & ASSOCIATES, P.C., Plaintiffs-Appellants, - v - THE LAW OFFICES OF DAVID M. BUSHMAN, ESQ., DAVID M. BUSHMAN, Attorney at Law, JANET CALLAGHAN, EILEEN DEGREGORIO, STEVI BROOKS NICHOLS, JEFFREY LEVITT, ESQ., Attorney at Law, HERBERT MONTE LEVY, ESQ., LAW OFFICES OF HERBERT MONTE LEVY, ESQ., JOHN DOE, ESQ., LAW OFFICES OF JOHN DOE, ESQ., JANE DOE, ESQ., LAW OFFICES OF JANE DOE, ESQ  the end of years of litigation appears.

"Plaintiffs-Appellants Curtis & Associates, P.C. and W. Robert Curtis (collectively "Curtis") appeal from a December 17, 2010 judgment of the United States District Court for the Eastern District of New York (Matsumoto, J.) dismissing with prejudice their complaint alleging civil violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), [*2] 18 U.S.C. §§ 1961-1968, denying leave to amend, denying motions to disqualify counsel, and denying sanctions against Curtis. Curtis alleges, in essence, that various of his former clients and those clients' current counsel committed violations of RICO by bringing "counterfeit" malpractice claims and disputing fees earned by Curtis in his former representation of these clients."

"Curtis and defendants have been involved in numerous state court proceedings stretching back for many years. Curtis alleges that the underlying state court lawsuits between Curtis and defendants were part of the interconnected "schemes" of Defendants-Appellees the Law Offices of David M. Bushman, Esq., David M. Bushman, Attorney at Law, and David M. Bushman, Esq. (collectively "Bushman") "to Defraud Curtis" and "to Obtain Money," 1 J.A. 2377, and that Bushman recruited and controlled Defendants-Appellees Jeffrey Levitt, Esq. and Jeffrey Levitt, Attorney at Law (collectively "Levitt"); Herbert Monte Levy, Esq. and Law Offices of Herbert Monte Levy, Esq. (collectively "Levy"); and Stevi Brooks Nichols ("Nichols") to execute his schemes. Curtis further alleges that in the course of those suits, defendants made, submitted, or suborned the submission to the courts of [*6] various false and misleading statements or evidence. He alleges as predicate acts of mail and wire fraud the transmission of court filings and other case-related communications in the underlying state court lawsuits.
"The alleged "schemes" require the coordination of the defendants: three counsel (Bushman, Levy, and Levitt) and three former Curtis clients (Defendants-Appellees Nichols, Janet Turansky Callaghan ("Turansky"), and Eileen DeGregorio). Levy is conclusorily alleged to have learned of Bushman's schemes and become Bushman's "surrogate" and "puppet" in representing DeGregorio and continuing the schemes. J.A. [*8] 2396, 2402. Curtis alleges that Levitt was recruited by and is "under the control of Bushman," id. at 2412, and "upon information and belief," Bushman continued to assist Levitt in "seamlessly implement[ing] the fraudulent schemes devised by Bushman," id. at 2411. With respect to the various clients, Curtis alleges, again "upon information and belief," that Bushman counseled Turansky that she could avoid paying fees owed to Curtis if she terminated Curtis for cause and that Bushman would represent her for "a nominal fee." Id. at 2406. Nichols, who is pro se, is alleged on "information and belief" to have been counseled behind the scenes by Bushman. Id. at 2384, 2415. There is a noted dearth of allegations suggesting that the clients were aware or joined in any sort of fraudulent scheme beyond their own individual cases. As these highlighted allegations indicate, the fraudulent "schemes" boil down to little more than speculative and conclusory allegations that the various defendants and others worked together under Bushman's direction. There are no facts alleged to support these implausible allegations of an overarching scheme or schemes, nor is a common intent properly pleaded. Because [*9] Curtis has failed to plead a fraudulent scheme with the requisite particularity, we need not reach the issues of additional pleading deficiencies raised by defendants."

is it legal malpractice for an attorney to answer a information subpoena concerning his retainer agreement with a client if the answer does not contain privileged communications?  We will not know the answer to this question from GREGORY P. MORSON, Plaintiff, -against KREINDLER & KREINDLER, LLP, Defendant.09 CV 2994 (DRH)(ARL)UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, 2011 U.S. Dist. LEXIS 112310;September 28, 2011, Decided because plaintiff waited too long to bring the action.
 

"Plaintiff's claims arise out of events that occurred during defendant's legal [*2] representation of plaintiff (or "Morson") and his sister, Vanessa Morson, (collectively, the "Morsons"), who served as the co-administrators of their mother's estate. The subject representation involved a 1996 case brought in this District alleging wrongful death against the Libyan government for its involvement in the 1988 bombing of Pan American Airlines flight 103 over Lockerbie, Scotland (the "Lockerbie action").2 See Morson v. The Socialist People's Libyan Arab Jamahirya, No. 96 CV 2077 (TCP) (E.D.N.Y). In October 2002, a conditional settlement agreement was reached between the parties in that action that relied on the occurrence of three "triggering events," the details of which are not relevant for present purposes. (Statement of Undisputed Material Facts, pursuant to Local Civil Rule 56.1 ("56.1 Stmt.") ¶¶ 20-21.) Kreinder & Kreindler LLP represented many of the victims' families in the Lockerbie action. (Rule 56.1 Statement ¶ 11.)

Prior to this conditional settlement, on December 26, 2001, judgment was entered against Morson for approximately $1.7 million in a separate lawsuit in the Southern District of New York. (56.1 Stmt. ¶¶ 24, 27); See Palazzetti Import/Export, Inc. v. [*3] Morson, No. 98 CV 722 (FM) (S.D.N.Y.)(the "Palazzetti action"). The judgment was later affirmed on appeal at some point in 2002. (56.1 Stmt. ¶ 28.) Kreindler & Kreindler LLP did not represent Morson in that action.

In late 2002, Morson and one Sergio Palazzetti began direct settlement negotiations without the aid of counsel regarding payment of the Palazzetti judgment. (56.1 Stmt. ¶ 34.) During these talks, Palazzetti indicated that he "would be amenable to settle for $500,000 in cash," as a lump sum, (Deposition of Sergio Palazzetti ("Palazzetti Dep.") at 58-69, D's Ex. I), though no final agreement was entered into by the two men at that time. (See Deposition of Gregory Morson ("Morson Dep.") at 46-47, D's Ex. G; see also Palazzetti Dep. at 51 ("The only thing I remember is that when we actually sort of agreed on the 500,000 number.").)

Around that same time, Palazzetti discussed with his attorney, Debra J. Guzov, what Palazzetti had learned primarily through the news media, viz., that Morson was involved in the Lockerbie action, that settlement talks were underway between the parties, and that Morson was potentially entitled to a large payout in that case. (56.1 Stmt. ¶¶ 22, 30; Palazzetti [*4] Dep. at 34-36.) Guzov then served Kreindler & Kreindler LLP with a "Restraining Notice," pursuant to N.Y. CPLR 5222, requesting that the firm complete an attached questionnaire concerning Morson's current and potential assets. On January 15, 2003, James P. Kreindler ("Kreindler") completed the questionnaire and returned it to Guzov. (Pl's Ex. 4.) In his response, Kreindler provided the following statement relevant to this suit: "We filed suit arising from the death of Eva I. Morson against Libya in 1996. We have a written settlement agreement which goes into effect when Libya complies with the United Nations requirements. Settlement not less than $5 million nor more than $10 million." (Pl.'s Ex. 5.)

Meanwhile, Palazzetti had informed his "trial counsel," Michael Regan (who had a lien on any judgment in the Palazzetti action), that he had discussed settling the Palazzetti action with Morson for $500,000. According to Palazzetti's testimony, Regan informed him that he learned from Guzov that the Lockerbie action "would be resolved positively for the Morsons very soon," and that he should not settle for less than the judgment. (Palazzetti Dep. at 58) Shortly thereafter, Palazzetti communicated [*5] to Morson that he would no longer settle the judgment for $500,000. Palazzetti testified that he changed his position because he "was told that [he] could get the whole amount in a fairly short time." (Palazzetti Dep. at 9, 64.)

The Morson's eventually recovered $10 million from the Lockerbie action (56.1 Stmt. ¶ 32; D's Ex. L.), and Palazzetti collected the entire amount of his judgment from Morson, (Pl.'s Ex. 7)."
 

"As to the date of accrual of the malpractice claims, New York looks to the date in which the malpractice was committed, while Illinois and Massachusetts consider the date in which the plaintiff discovers his or her injury arising out of such misconduct. McCoy v. Feinman, 99 N.Y.2d 295, 301, 785 N.E.2d 714, 755 N.Y.S.2d 693 (2002) (A claim accrues "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court." (citing Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 644 N.E.2d 1009, 620 N.Y.S.2d 318 (1994))); Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 750 N.E.2d 67, 726 N.Y.S.2d 365 (2001) (citing Glamm v. Allen, 57 N.Y.2d 87, 95, 439 N.E.2d 390, 453 N.Y.S.2d 674 (1982)("What is important is when the malpractice [*17] was committed, not when the client discovered it.")); Hester v. Diaz, 346 Ill. App. 3d 550, 553, 805 N.E.2d 255, 281 Ill. Dec. 887 (Ill. App. Ct. 5th Dist. 2004)("In Illinois, the statute of limitations for legal malpractice is two years 'from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.'" (citing 735 Ill. Compiled Statutes 5/13-214.3(b))); Lyons v. Nutt, 436 Mass. 244, 247, 763 N.E.2d 1065 (Mass. 2002)("The statute of limitations applicable to a legal malpractice claim begins to run when a client 'knows or reasonably should know that he or she has sustained appreciable harm as a result of the lawyer's conduct.'" (citing Williams v. Ely, 423 Mass. 467, 473, 668 N.E.2d 799 (1996))). Here, the purported malpractice was committed by defendant, and the resulting injury was discovered by plaintiff in or around January 15-22, 2003. See discussion supra. Plaintiff's malpractice claims therefore accrued under the law of all three states during that period."
 

When practitioners in Legal Malpractice stay in the area long enough, older cases they handled come back to save or haunt them. A prime example isDeNatale v Santangelo ; 2009 NY Slip Op 06398 ;; Appellate Division, Second Department . Here the defendant law firm wins dismissal based upon a now well known case. In that case, defendant attorney lost the motion and the appeal, here, based on the same law, defendant attorney wins.
 

The case in common is Barnett v Schwartz ;2007 NY Slip Op 09712 [47 AD3d 197] . Important language there: "The elements to be proved in a legal malpractice action have been subjected to various formulations. Thus, while it is clear that a plaintiff-client must prove negligence (i.e., that the defendant-attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community), some cases hold that the negligence must be "the" proximate cause of damages (Britt v Legal Aid Socy., 95 NY2d 443, 446 [2000]; see e.g. Kleeman v Rheingold, 81 NY2d 270 [1993]; Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407 [2007]; Cohen v Wallace & Minchenberg, 39 AD3d 691 [2007]; Cummings v Donovan, 36 AD3d 648 [2007]; Kotzian v McCarthy, 36 AD3d 863 [2007]), while others hold that it must be "a" proximate cause of damages (Bauza v Livington, 40 AD3d 791, 793 [2007]; see e.g. Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725 [2006]; Terio v Spodek, 25 AD3d 781 [2006]; Pistilli v Gandin, 10 AD3d 353 [2004]). There are also cases from this Court requiring the damages to be a "direct result" of the negligence (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409 [2007]; Kotzian v McCarthy, 36 AD3d 863 [2007]; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725 [2006]). In the main, the cases from the Court of Appeals, including the most recent, do not expressly require that the negligence be either "the" or "a" proximate cause of damages, but require proof that, "but for" the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action (in a classic lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action alleging negligent advice, etc.) (see e.g. Leder v Spiegel, 9 NY3d 836 [2007]; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428 [2007]; Davis v Klein, 88 NY2d 1008 [1996]; Carmel v Lunney, 70 NY2d 169 [1987]). The defendants here, while not expressly describing the difference between proximate and "but for" causation, argue that the latter requires a greater, more direct degree of causation. However, we find no substantive{**47 AD3d at 204} import to the variations in the formulations discussed above, and hold that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney's negligence was a proximate cause of damages. "

"Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause.""In sum, regardless of the formulation employed, a plaintiff in a legal malpractice action need prove only that the defendant-attorney's negligence was a proximate cause of damages. "

We've seen busses cloaked in ads, and we've seen big big Times Square building ads, but who knew there was a name for this style of billboarding?  Who knew there would be a legal malpractice angle to it?  We did not, until today. From Law.Com:

"Welcome to the latest round in what might be called the Battle over the Blanketing of Los Angeles.
Municipal authorities have in recent years clashed with a group of sign companies and property owners who defied a local ban on so-called supergraphics—the once-omnipresent multistory advertisement draped along the sides of some of the city's biggest buildings.
Many of the offending signs began to fall last year after the city scored a decisive victory at the U.S. Court of Appeals for the Ninth Circuit, which reversed a federal district court decision striking down the supergraphics ban on First Amendment grounds.
Now, one of the companies that led the supergraphics fight has filed a legal malpractice lawsuit against Akin Gump Strauss Hauer & Feld, which represented the company during the litigation battle.
In the suit [PDF], filed Friday in Los Angeles County Superior Court, World Wide Rush and owner Barry Rush claim that Akin Gump committed professional negligence by, among other things, advising the company to put up as many of the controversial signs as possible after the lower court ruling struck down the ban.
As a result of following this advice, the complaint states, World Wide Rush and Barry Rush, personally, were targeted in criminal and civil suits brought by the state of California and the city of Los Angeles.
The complaint further alleges that Akin Gump is responsible for more than 30 other parties connected to World Wide Rush—including contractors and property owners—being targeted in similar suits as part of a campaign that was something of a cause célèbre for current Los Angeles city attorney Carmen Trutanich. (In February 2010, for example, a Hollywood property owner who allowed a supergraphic to be put on his eight-story building was jailed.)
World Wide Rush claims to have racked up more than $1 million in legal fees defending itself and some of its codefendants against the actions initiated by government officials. The complaint also claims that Akin Gump's advice led to "the demise of WWR."
Citing the firm's policy of not discussing pending litigation, Akin Gump spokeswoman Kathryn Holmes Johnson declined to comment on the suit. World Wide Rush and Barry Rush are being represented in the suit by Los Angeles–based firm Webb & Beecher, which also declined to comment.
The events leading up to the suit began April 2008. It was then, the complaint states, that World Wide Rush retained Akin Gump at rates of up to $1,050 an hour, in connection with "legal action on behalf of [the company] against the City of Los Angeles."
At that point, World Wide Rush was already embroiled in litigation with the city, having filed a lawsuit challenging the supergraphics ban in January 2007. (The lawsuit was initially filed on behalf of the company by Newport Beach, California–based Paul Fisher, who was later suspended and ultimately disbarred in May 2010 after pleading guilty to several felonies, including having sex with a minor.)
In its suit against Akin Gump, World Wide Rush alleges that the firm's lawyers "held themselves out…as specializing in advising and directing clients such as [World Wide Rush] with regards to laws, ordinances, zoning, and other regulations of the City of Los Angeles and well-suited to advise [World Wide Rush] as to actions it should take with regard to its supergraphics and signage business in Los Angeles and also with regard to the litigation and scrutiny from the City of Los Angeles."
 

Fighting in the trenches during WW1 was said to be dirty and without any rules.  It often seems that the same situation obtains for third-party litigation between law firms, one of which was responsible for failing to file a mortgage.  Fighting over money is the domain of attorneys, it can be dirty, and seemingly without rules and has been for centuries.

in U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR ASSET BACKED PASS THROUGH CERTIFICATES, SERIES 2006-HE1, Plaintiffs, -against- ALAN C. STEIN, ESQ., GASTWIRTH, MIRSKY & STEIN, L.L.P., LAW OFFICE OF ALAN C. STEIN, P.C., ROBERT M. STEINERT and CHICAGO TITLE INSURANCE COMPANY, Defendants. ALAN C. STEIN, ESQ., GASTWIRTH, MIRSKY & STEIN, L.L.P. and LAW OFFICE OF ALAN C. STEIN, P.C., Third-Party Plaintiffs, -against- STEVEN J. BAUM, P.C., and STEVEN J. BAUM, ESQ., Third-Party Defendants. Index No.: 016919/08 we see one law firm pitted against aother.  In this particular round of engagements, one law firm now seeks re-argument after an appeal.
 

"On or about September 11, 2008, the Plaintiff, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR ASSET BACKED PASS THROUGH CERTIFICATES, SERIES 2006-HE1 ("US Bank"), commenced this action against the Stein Defendants for legal malpractice alleging that the Defendants were negligent in failing to properly record a mortgage executed in favor of the Plaintiff on a certain parcel of land located at 112 Irving Avenue, Deer Park, New York (hereinafter "Premises"). The Stein [*3] Defendants subsequently commenced a third-party action against the Baum Firm for contribution alleging that the Baum Firm failed to timely intervene in the action which could have secured the Plaintiff an equitable lien on its incorrectly recorded mortgage. The basis of the Stein Defendants' claim for contribution is that the Baum Firm was negligent/guilty of malpractice in that it knew or should have known of another mortgage on the same Premises in favor of T&V Construction Corp. (hereinafter the "T&V Mortgage"), and the Baum Firm's failure to timely intervene in the T&V Mortgage foreclosure proceeding proximately caused damages to the Plaintiff, US Bank."

"The Baum Firm moved to dismiss the third-party complaint, pursuant to CPLR § 3211 (a) (7), claiming that there was no basis for a malpractice action since it was retained in a different matter and for a different purpose than were the Stein Defendants. Justice William R. LaMarca, prior to his retirement from the bench, denied the motion to dismiss, relying on Schauer v. Joyce, 54 N.Y.2d 1, 429 N.E.2d 83, 444 N.Y.S.2d 564 (1981) and Dole v. Dow Chemical Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972), finding that the third-party complaint validly stated a claim for contribution.2 [*4] (See Short Form Order, LaMarca, J., 12/04/09). In affirming Justice LaMarca's Order, the Appellate Division, Second Department, held that, "[t]he Supreme Court properly determined that the Stein defendants stated [**4] a cause of action against the third-party defendant Steven J. Baum, P.C., by asserting, among other things, that Steven J. Baum, P.C., failed to timely correct the legal errors allegedly committed by the Stein defendants in their representation of the plaintiffs predecessor in interest, despite having sufficient time and an opportunity to do. The third-party complaint alleged sufficient facts which, if true, would establish that Steven J. Baum, P.C., may be liable to the Stein defendants for causing or contributing to the plaintiffs alleged damages"."

"A motion for reargument is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principles of law. Ito v. 324 East 9th Street Corp., 49 A.D.3d 816, 817, 857 N.Y.S.2d 578 (2d Dept. 2008). It is not designed, however, as a vehicle to provide an unsuccessful party with successive opportunities to rehash issues previously decided (Foley v. Roche, 68 A.D.2d 558, 567, 418 N.Y.S.2d 588 (1st Dept. 1979)), or to present arguments different from those originally presented. Giovanniello v. Carolina Wholesale Office Mach. Co., 29 A.D.3d 737, 738, 815 N.Y.S.2d 248 (2d Dept. 2006).

The Court finds that, in rendering its previous decision, all of the arguments raised by the Stein Defendants herein were considered. Stein failed to show that the Court [*9] overlooked or misapprehended the relevant facts or misapplied any controlling principles of law. As such, the Court adheres to its original decision and Stein's motion to reargue is DENIED.
 

"

In this upstate 4th Department grievance/disciplinary case we see the effect an attorney can have on the lives of his clients.  Plaintiffs' house burns down, and they retain this attorney to represent them.  He waits until the very last day to file, and then allows the case to be dismissed on discovery shortcomings.  The homeowners sue for legal malpractice and Judiciary Law 487, and win on default.  "Respondent did not contest the malpractice action, and a judgment was entered awarding the homeowners compensatory damages in the amount of $226,000 and punitive damages in the amount of $700,180.82. Respondent failed to appear in response to a subpoena for a judgment debtor examination and failed to respond to an order to show cause brought by the homeowners seeking an order finding him in contempt." 

Respondent raised as affirmative defenses and in mitigation of the misconduct that he began suffering from severe depression in 2005, but ignored advice to seek mental health treatment until 2007; that he did not contest the legal malpractice judgment, including the finding of intentional deceit, because he had been advised by a pro bono attorney to allow the homeowners to obtain a default judgment against him to enable them to recover damages from his malpractice insurer and he was unaware that they were seeking treble damages; and that he did not respond to the subsequent judgment debtor subpoena or order to show cause for contempt because he mistakenly believed that an agreement had been reached with the homeowners pursuant to which the default judgment would not be executed against respondent in his individual capacity. "

In determining an appropriate sanction, we have considered respondent's previously unblemished record during his 22 years of practicing law and his expression of remorse. Respondent, however, has committed serious misconduct that caused harm to his clients. In particular, we have considered that respondent's neglect of the fire insurance matter and his deceit in trying to conceal that neglect deprived the homeowners of an opportunity to retain new counsel who could have acted in a timely manner to preserve their claim for damages. Accordingly, after consideration of all of the factors in this matter, we conclude that respondent should be suspended for three years and until further order of the Court. "
 

Sub-prime mortgages and mortgage litigation in general has expanded if not exploded.  New rules, new fees, limitations and new court parts have all followed in the wake.  Borrowers who lose at the mortgage litigation stage then look to legal malpractice as a follow up.  in Jay v. Gallagher
2011 NY Slip Op 32563(U); September 20, 2011; Supreme Court, Nassau County; Docket Number: 323/11; Judge: Karen V. Murphy we see one example.

Plaintiff borrowed and then defaulted on mortgage 1.  Plaintiff e-negotiated and then defaulted on mortgage 2.  Plaintiff filed for bankruptcy, had the bankruptcy dismissed, and then settled the foreclosure litigation.  As part of that litigation the target attorneys moved for and received a charging and retaining lien.

Plaintiff then sued, pro se for legal malpractice.  She loses, for reasons of collateral estoppel and res judicata.

"Collateral estoppel bars relitigation of an issue that has already been decided in prior action, and where the part against whom the estoppel is being asserted had a full and fair opportunity to contest the issue in the prior proceeding (Tydings v. Greenfield, Stein & Senior, LLP 11 N.Y.3d 195, 199, 897 N. 2d 1044, 868 N. S.2d 563 (2008); Jeffreys v. Grifn 1 N.Y.3d 34, 801 N. 2d 404, 769 N. 2d 184 (2003); Schwartz v. Public Administrator 24 N. 2d 65 , 246 N. 2d 725 298 N. S.2d 955 (1969)).
Pursuant to this doctrine, a legal malpractice action generally will be barred by the defendant' s ' successful prosecution of a prior action to recover fees for the same legal services which the (plaintiff) presently allege(s) were negligently performed''' (York v. Landa 57 A.D.3d 980 981 , 870 N. 2d 459 (2d Dept., 2008) citing Pirog v. Ingber, 203 2d 348, 348-349, 609 N. 2d 675 (2d Dept., 1994)). Specifically, a charging lien entered in an underlying action against plaintiff in a legal malpractice action bars plaintiff from asserting the malpractice claim. By fixing the value of the defendant attorney services, the court necessarily concludes that there is no malpractice. (see Lusk v. Weinstein 85 A.D.3d 445, 924 N. 2d 91 (1 st Dept. , 2011); Wallach v. Unger Stutman, LLP, 48 D.3d 360, 853 N. 2d 295 (2d Dept., 2008); Afsharimehr v. Barer 303 A. 2d 432 755 N. 2d 888 (2d Dept., 2003); Lefkowitz v. Schulte, Roth Zabel 279 A. 2d 457 718 N. 2d 859 (2d Dept. , 2001))."

We sometimes ponder whether attorneys are held to a lesser standard in Legal Malpractice, or to put it a different way, are plaintiffs in legal malpractice forced to overcome sympathy for attorneys?  It cannot be argued that there is a fourth element in legal malpractice - the "but for" rule - that exists no where else.  But, let's look at a recent case.

In Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank ; 2011 NY Slip Op 06829
Decided on September 27, 2011 ; Appellate Division, Second Department  Supreme Court dismissed the Temple's complaint.  The Appellate Division reversed most of the dismissals.  Did Supreme Court just have it wrong, or does this reflect an institutional bias for attorneys?  You decide.
 

"The Supreme Court held that the attorneys were entitled to dismissal of the eighth cause of action to recover damages for legal malpractice insofar as asserted against them on the grounds that the applicable statutes of limitations had run, the attorneys had presented documentary evidence that conclusively disposed of the temple's claims, and the temple failed to state a cause of action. We disagree. Based upon the allegations in the complaint and the documentary evidence presented, it cannot be determined at this juncture whether the continuous representation doctrine tolls the three-year statute of limitations for attorney malpractice under the circumstances (see Kanter v Pieri, 11 AD3d 912, 913-914). Moreover, the temple properly alleged all of the elements necessary to recover damages for legal malpractice. Accordingly, the Supreme Court erred in holding that the eighth cause of action to recover damages for legal malpractice should be dismissed insofar as asserted against the attorneys. "

"The Supreme Court further erred in holding that the seventh cause of action to recover damages for fraud should be dismissed insofar as asserted against the attorneys. Contrary to the attorneys' contention, that cause of action was pleaded with sufficient specificity (see CPLR [*3]3016[b]; Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492; PDK Labs v Krape, 277 AD2d 211), and the attorneys' documentary evidence failed to "resolve[] all factual issues as a matter of law, and conclusively dispose[] of the plaintiff's claim" (Brunot v Eisenberger & Co., 266 AD2d 421, 421; see CPLR 3211[a][1]). However, in its current form, the sixth cause of action alleging a violation of Judiciary Law § 487 lacks the required specificity (see Mars v Grant, 36 AD3d 561; Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297-298), and, under the circumstances of this case, we modify the order dated August 2, 2010, to grant that branch of the motion which was pursuant to CPLR 3211(a) to dismiss the sixth cause of action insofar as asserted against the attorneys with leave to the temple to replead the allegations in an amended complaint. "

Much of what we report is legal malpractice, and that almost always deals with money.  What did plaintiff lose?  How much was plaintiff required to pay?  What are the attorney fees?  Why is plaintiff liable to pay an attorney some money?  All important questions, and often they tell of a subtext of injury, divorce, disenfranchisement, and sadness.  Rarely, however, does legal malpractice result in death.

Yet, it can happen.  Pro bono capital crimes representation is a lovely act, and many innocent prisoners have benefited from Project Innocence and other similar programs.  Many of the big NY firms do criminal pro bono work, and they extol it on their web sites.  Here, is the flip side.  Associate attorneys working for Sullivan & Cromwell take on a pro bono case, and then as the years go by, they move on to other firms.  What happens to the case?

Today's Law,Com answers the question, in the US Supreme Court.  "Alabama death row inmate Cory Maples, who lost his chance to bring a critical appeal because of a mailroom snafu in a New York law firm, may be getting a second chance from the U.S. Supreme Court.

In fast-paced arguments on Tuesday that delved into the obligations of lawyers representing criminal defendants, all of the justices, with the exceptions of Justice Antonin Scalia and a silent Justice Clarence Thomas, appeared concerned about the predicament in which Maples finds himself and skeptical of the state's arguments that they should do nothing about it.

Maples, sentenced to death for the 1995 murders of two men, was represented pro bono in his state post-conviction appeal by two associates at New York's Sullivan & Cromwell. As required by Alabama rules at the time, the two lawyers associated themselves with a local attorney, John Butler, in order to be admitted to practice in the state. Although the rules required Butler to be jointly and severally responsible for the case, he claimed his only role was to secure the New York attorneys' admission.

The three attorneys filed a state post-conviction petition for Maples in which they raised ineffective assistance of trial counsel claims. After 18 months, the trial judge denied the petition, and then Maples' problems began.

The court clerk sent notices of the denial order to the two associates and Butler. The associates, however, had left the firm for other jobs and failed to inform Maples or the court that they no longer represented him. Neither they nor Marc De Leeuw, the partner who worked with the associates, filed a substitution of counsel form. The firm's mailroom returned the denial notices to the court clerk marked "return to sender" and "left firm." Butler did nothing with his notice, assuming the associates were handling the case. Maples actually learned of the denial and the missed appeal deadline when the prosecutor sent him a letter alerting him that the time for filing a federal habeas petition was close to expiring. He contacted his stepmother, who then contacted Sullivan & Cromwell. De Leeuw and Butler scrambled to ask the trial court to reissue its denial order so they could file an out-of-time appeal, but their motion was denied as was a request to the state criminal appeals court.

"

When does continuous representation end?  Sometimes there is a specific event (a judgment, a verdict, a motion decision) and sometimes there is a specific event plus a specific period of time (the date of the injury + three years) and sometimes continuous representation ends when the parties believe it ends.  So it is in Hadda v Lissner & Lissner LLP ; 2011 NY Slip Op 32519(U)
September 19, 2011; Sup Ct, NY County; Docket Number: 109329/10; Judge: Emily Jane Goodman.

"The continuous legal representation doctrine recognizes that the statute of limitations for  ommencing a malpractice action may be tolled, if the continuing representation "pertains specifically to the matter in which the attorney committed the alleged malpractice." Shumsky, 96 NY2d at 168. In other words, the doctrine permits the tolling of the statute of limitations "until
the ongoing representation is completed." Id. at 167-168. The plaintiff bears the burden to prove that the doctrine applies. See Corless v Mazza, 295 AD2d 848 (3d Dept 2002). The doctrine
requires a clear indicia of an ongoing, continuous, developing and personal relationship between the attorney and client or a mutual understanding of the need for further representation on
the specific subject matter underlying the malpractice claim.  See Matter of Merker, 18 AD3d 332 (1st Dept: 2 0 0 5 ) ."

"Defendants have not demonstrated, by conclusive documentary evidence, when the legal  alpractice action accrued (i.e, defendants rely on April 2006 as the date, which was when the
firm participated in a conference call, but did not bill for the work)’ and have not demonstrated that the continuous representation doctrine does not apply. Although it is true that the relationship may have ended prior to the time that plaintiffs’ terminated the relationship by l e t t e r , no conclusive
proof has been submitted regarding when the relationship ended.  Defendants note that the doctrine applies until the client is on notice that the attorney is no longer addressing their needs,
which need not be in the form of a motion to withdraw, but only needs to be reasonably sufficient to advise the client that the attorney w i l l no longer pursue the matter. However, contrary to defendants’ argument, that ”[pllaintiffs were surely on notice that the Law Firm w a s no longer addressing their legal needs” (Reply Affirm at 4), the affidavits of the husband of Ceri Hadda,
(who is himself an attorney), and Ceri herself, paint a different picture.  because he \‘is not a plaintiff in this action and his surname is not ‘Hadda”‘ and, because he was not party to the retainer (Id.at 16). While it is true that the doctrine depends upon the relationship between the attorney and the client (see Grlffen v Anslow, 17 AD3d 889 (3d Dept 2005) (retainer agreement and other documents conclusively established that the legal malpractice action should be dismissed because they indicated that the attorney-client relationship was not between plaintiff and
defendant, but was between plaintiff‘s corporations and defendant), nothing has been cited to support defendants’ contention that the client cannot act through her attorney husband. Here, apparently the f i r m itself recognized the husband’s authority to act on behalf of plaintiffs."

Decedent hires attorney to prepare a will, and to make changes to beneficiaries for her assets.  As one might predict, something goes wrong.  in Gurvitz v Wank; 2011 NY Slip Op 32511(U); September 19, 2011; Supreme Court, Nassau County; Docket Number: 10468/06; Judge: Ute W. Lally we see the results.  The litigation goes on for years, and only now, some 20 years later, are the actual claims honed to an amended complaint.

"In December 1989 , defendant Jerald Wank, an attorney and a certified public accountant, prepared the Last Will and Testament for non-party Marta Wisterich (the Will"). The Will was executed on January 3 , 1990 and named , both , the plaintiff Barbara Gurvitz, and the defendant, Jerald Wank, as co-executors of her Estate. The Will also named the plaintiff as the sole beneficiary. Apparently, at the time of the preparation and execution of the Will , Marta Wisterich asked Wank to change the beneficiary of her Teacher s Insurance and Annuity Association (TIM) Equity Fund to Barbara Gurvitz. Plaintiff claims that the defendant failed to file the requisite paperwork with the TIM reflecting the requested change. As a result, plaintiff filed the appropriate papers with TIM herself on April 22 1991.  Marta Wisterich died on May 28 , 1991.

Plaintiff claims that the defendant then negotiated an agreement to split the Estate of Marta Wisterich in half as between the decedent's aunt and the plaintiff. She claims that during the negotiations therein , defendant apparently represented the interests of the plaintiff as well as the interests of the Estate. Furthermore , plaintiff claims that the defendant failed to pay her the half of the estate to which she was entitled , instead retaining said share and telling her that he would first pay the outstanding taxes on her behalf. Plaintiff claims that the defendant deposited said monies into a new (escrow) account created under her name, from which defendant withdrew the money to give to the decedent's aunt. Plaintiff claims that the escrow account created an appearance of income that the plaintiff did not in fact receive. She also claims that not only did the defendant fail to
file or pay plaintiff' s taxes , but he also refused to pay back the money he held in escrow and refused to represent her before the IRS and the New York State Department of Finance when plaintiff received a tax bill. Plaintiff claims that as the result of defendant's mistakes, her liability to the IRS totaled more than $160 977. 84 and the amount paid to the Department of Finance totaled more than $23 361. 11. In addition plaintiff claims that as the executor, defendant failed to sell Wisterich' s cooperative apartment in New York for two years after her death , resulting in  fines and penalties to the Estate and further diminishing the value of the residual Estate.

The statute of limitations begins to run when the cause of action accrues (CPLR 9203(aD, Le.
 "when all of the facts necessary to the cause of action have occurred so that the party would be entitled to obtain relief in court"(Aetna Life Cas. Co. v Nelson 67 NY2d 169 , 175).  Plaintiff claims in her first cause of action (breach of fiduciary duty as attorney) that plaintiff was represented by the defendant from "March 1992 to now acting as her  attorney with respect to the estate of Marta Wisterich". As alleged in her proposed amended complaint, the claimed breach , as attorney, occurred when the defendant misappropriated funds with respect to plaintiff' s taxes. According to the plaintiff' s own allegations said breach occurred some time after May 1992 and before 2000 when defendant forwarded the funds held for the plaintiff in his escrow account to the plaintiff'  then attorney, Mr. Caro. Clearly, under these facts , and even assuming that the breach of fiduciary duty occurred at the very latest in 2000, the cause of action to recover damages for breach of fiduciary duty is time-barred insofar as asserted against Wank as attorney (CPLR 3211 (a)5.). Accordingly, plaintiffs proposed first cause of action for breach of fiduciary duty as attorney is dismissed. Plaintiff has failed to make the requisite evidentiary showing establishing merit to her proposed amended claim (Joyce v McKenna Assoc. , supra; Morgan v Prospect Park Assocs. Holdings, supra). '

Might we trust our attorneys?  Can a plaintiff be assured that the attorneys are not conspiring with defendants to "carve" up the settlement between them.  Our system is based upon trust and loyalty, and a belief in the incentive of success.  However...

It need not always be true.  as an example, the Second Circuit reversed the dismissal of a major case against Leeds Morelli & Brown, finding  "overriding and abiding conflicts of interest for LMB and thoroughly undermined its ability to "deal fairly, honestly, and with undivided loyalty to [appellants]"  "The overriding nature of the conflict is underscored by the fact that, when fourteen of the 587 clients failed to agree,Nextel's final, but pre-consultancy, payment to LMB was reduced from $2 million to $1,720,000, or $20,000 per non-agreeing client. "  In Johnson v. Nextel Communications 1892-cv -09 we see:

"Once all the claims were processed, LMB would formally go to work for Nextel as a consultant for two years at $1 million per year. LMB also promised in the DRSA not to accept new clients with claims against Nextel, not to refer any such client to another lawyer or firm, and not to accept compensation for any prior referral.

It cannot be gainsaid that, viewed on its face alone, the DRSA created an enormous conflict of interest between LMB and its clients. Such a conflict is permissible only if waivable by a client through informed consent. See Int'l Bus. Machs, Corp. v. Levin, 579 F.2d 271, 282 (3d Cir. 1978); Filippi v. Elmont Union Free Sch. Dist. Bd. of Educ., 722 F. Supp. 2d 295, 310-11 (E.D.N.Y. 2010). However, there may be circumstances in which a conflict is not consentable. See GSI Commerce Solutions, Inc. v. BabyCenter, L.L.C., 618 F.3d 204, 212 n.2 (2d Cir. 2010); CenTra, Inc. v. Estrin, 538 F.3d 402, 412 (6th Cir. 2008); Cohen v. Strouch, No. 10 Civ. 7828, 2011 WL 1143067, at *2-3 (S.D.N.Y. Mar. 24, 2011). For two reasons, this is such a case."

"Therefore, LMB's clear duty as counsel to the parties seeking relief from Nextel was to advise each client individually as to what was in his or her best interests taking into account all of the differing circumstances of each particular claim. See Ziegelheim v. Apollo, 128 N.J. 250, 260-61 (1992); Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 674 N.Y.S.2d 280, 284-85 (N.Y. App. Div., 1st Dep't. 1998). The DRSA was flatly antagonistic to that duty.

On the face of the DRSA, its inevitable purpose was to create an irresistible incentive—millions of dollars in payments having no relation to services performed for, or recovery by, the claimants—for LMB to engage in an en masse solicitation of agreement to, and performance of, the DRSA's terms from approximately 587 claimant clients. The effectiveness of the DRSA, and therefore the payments to LMB, depended on Nextel's conclusion that a sufficient number of clients had agreed to it.3 Any number short of all 587, and Nextel would have no obligation to pay anything, as Amendment 2 demonstrated by reducing the final, pre-consultancy $2 million payment to LMB to $1,720,000, a reduction of $280,000, or $20,000 apiece for the fourteen clients LMB failed to deliver. By entering the DRSA, agreeing to be bound by its terms and accepting the financial incentives available therein, LMB violated its duty to advise and represent each client individually, giving due consideration to differing claims, differing strengths of those claims, and differing interests in one or more proper tribunals in which to assert those claims.4 See Elacqua, 860 N.Y.S.2d at 232-33; accord Matter of Educ. Law Ctr., Inc., 86 N.J. 124, 133 (1981).

Legal malpractice is ubiquitous and might be expected at any attorney-client interface.  What is not expected, nor routine is the big loss of escrow funds.  News cycles have more and more reported on "rogue" traders/professionals.  Here is a big one in the law world from the NY Law Journal:

Client Sues Crowell Over Missing Escrow
 

"Crowell & Moring was sued Friday for $5.5 million in missing real estate escrow money that a client says was improperly diverted by former firm associate Douglas R. Arntsen (See Complaint).

Attorney Bruce H. Lederman, representing Regal Real Estate and related entities, sued Crowell & Moring ten days after reporting Mr. Arntsen to the Manhattan District Attorney's Office. According to published accounts, Mr. Arnsten was in custody in Hong Kong after fleeing to avoid arrest. The reports could not be confirmed.

"My client has a big problem—this is unbelievable," Mr. Lederman, of D'Agostino, Levine, Landesman & Lederman said in an interview. "I feel like I've been living a bad episode of Law & Order since last Tuesday."

Mr. Arntsen's picture has been taken down from Crowell & Moring's website. The lawsuit accuses the firm of negligence and breach of contract for failing to prevent the improper diversion of funds by Mr. Arntsen. The funds came from deposits for sales of real estate in lower Manhattan and a condemnation award for a property on Eighth Avenue in Manhattan.

The lawsuit states that Crowell & Moring partner William O'Connor came to the firm in 2007, bringing Mr. Arntsen and Regal's business with him, from Buchanan Ingersoll & Rooney. It states that Mr. O'Connor was responsible for supervising the work of Mr. Arntsen, who was with the firm until Sept. 9. The suit said the firm failed "to maintain adequate checks and controls over escrow accounts" to prevent the diversion of money.

Mr. Lederman said that the suit, Regal Real Estate, LLC. v. Crowell & Morning, was filed by Mr. Lederman after the law firm failed to meet a 3 p.m. Friday deadline for returning the money. With interest and the costs of the investigation, Regal is seeking $6 million, plus an award of attorney's fees.

Crowell & Moring declined to comment"
 

A recent case, reported on Lexis but not yet entered in the NYS Court Appellate Division web site discusses the interrelation of defamation and legal malpractice.  In DANY DAVID, Plaintiff, - against - MICHAIL Z. HACK, WILLIAM J. O'MAHONEY and QUADRINO & SCHWARTZ, Defendants. INDEX NO. 103705/11; 103705/11; SUPREME COURT OF NEW YORK, NEW YORK COUNTY; 2011 NY Slip Op 32443U; 2011 N.Y. Misc. LEXIS 4461, Justice Mills, we see a case in which plaintiff and law firm argued over fees, and came to a resolution.  In that resolution the law firm refunded $250 and required a release.  Plaintiff signed the release, but now claims that it covered only a fee dispute and not any underlying legal malpractice.  In addition, client has a defamation claim.
 

The release definitely covered "legal malpractice" but the court found underlying indicia that the refund and the agreement did not contemplate anything but a fee dispute.  "It is undisputed that the law firm ceased its representation of plaintiff by December 23, 2009. Thereafter, plaintiff contested the amount due and owing for the services [*3] provided by the law firm during its prior representation of plaintiff, and such dispute was resolved with a refund to plaintiff by the law firm in the amount of $250.00. In consideration of such refund, plaintiff executed a mutual release on March 31, 2010, in favor of the law firm. The subject release specifically "RELEASES, ACQUITS AND FOREVER DISCHARGES" the law firm and its attorneys:
from any and all claims, rights, demands, liabilities, controversies, or causes of action, known or unknown, asserted or unasserted, liquidated or unliquidated, fixed or contingent, or of any nature whatsoever including without limitation, claims in contract, tort, or legal malpractice, under statutory or common law, or in equity...from the beginning of the world to the date of execution of this Agreement.
Moreover, such release also states as follow:

5. Careful Review and Understanding of Agreement

The parties to this Agreement acknowledge, [**3] represent and warrant that:
a. They have fully read this Agreement, understand its contents, and agree to its terms and conditions; and

b. They have consulted with legal counsel prior to executing this Agreement and the consequences of this Agreement have been completely explained to them by their attorneys and those terms are fully understood and voluntarily accepted by them.

Accordingly, the law firm contends that the plaintiff's action against it are barred by the subject release.

As a general rule, a valid release that is clear and unambiguous on its face constitutes a complete bar to an action on a claim which is the subject of the release absent fraudulent inducement, fraudulent concealment, misrepresentation, mutual mistake [*4] or duress (see Littman v Magee, 54 AD3d 14, 17, 860 N.Y.S.2d 24 [2008]).

While plaintiff acknowledges signing the subject release, he contends that he was unrepresented at the time he signed it, and was under the impression that the release was limited to his fee dispute, and not a malpractice action. Plaintiff cites Rule 1.8(h)(2) in support of his position, which provides as follows:
(h) A lawyer shall not:
(2) settle a claim or potential claim for such liability with an unrepresented [**4] client or former client unless that person is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel in connection therewith.

There is no evidence presented by the law firm that the plaintiff was given a reasonable opportunity to seek, the advice of independent legal counsel in connection with the signing of the release. Additionally, plaintiff in his opposition annexes correspondence sent from the law firm to him, suggesting that he come into their office to sign the release and pick up the check in the amount of $250.00 to complete the pending fee dispute."

A potential client comes to the legal malpractice practitioner and says that a good medical malpractice case was lost at trial because of errors by their attorney.  They tell you that their expert was precluded, and that the case was lost against all defendants.  What's more, the defendants were permitted to ask hypothetical questions that were not proper.  What can you do for me?

In many situations, the facts recited are true, and yet may not be actionable.  As an example,in Banister v Marquis ; 2011 NY Slip Op 06544 ; Decided on September 20, 2011 ; Appellate Division, Second Department  we see the following:
 

"Contrary to the plaintiffs' contention, the trial court providently exercised its discretion in precluding them from calling an expert radiologist to testify. The proffered explanation for failing to identify this witness until after the trial began was not based on good cause (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Caccioppoli v City of New York, 50 AD3d 1079, 1080). [*2]"

"The trial court should have prohibited counsel for the defendant Belinda Marquis from questioning an expert witness for the plaintiffs about a hypothetical pertaining to the probability of the infant plaintiff having both a pectus carinatum and fibromastosis, as the hypothetical was not based on facts supported by the evidence, nor from facts fairly inferable from the evidence (see Gilleo v Horton Mem. Hosp., 196 AD2d 569, 570). However, the error was harmless (see CPLR 2002; Kropf v New York Hosp., 212 AD2d 761). The trial court's comments about the hypothetical did not deprive the plaintiffs of a fair trial (see Figueroa v Maternity Infant Care Family Planning Project, Med. & Health Research Assn. of N.Y. City, 243 AD2d 424).

Will preclusion of the expert survive a "judgment call" defense?  Can plaintiff prove to a judge's satisfaction that testimony from that expert would have made a difference?  Is it all speculative? 

Are the harmless errors a mistake of the attorney, or did he/she make a valiant effort to object, only to be overruled?  Obviously the AD felt that there was no "but for" aspect...they found it harmless.

Legal malpractice litigation seems different from all other professional malpractice areas.  There seem to be more defenses and hurdles in this lawyer written-lawyer judged-lawyer prosecution area.

InByron Chem. Co., Inc. v. Groman; 2009 NY Slip Op 03465 ; Decided on April 28, 2009 ; Appellate Division, Second Department plaintiff employer sued its attorneys for an employee benefit provision which was drafted by attorney firm 1, which was then taken over by attorney firm 2. At issue was whether the doctrine of continuous representation tolled the statute of limitations, and if it did, were the two law firms to be held in the case. The Second Department held that while the law firms continued to intermittently represent the employer, such was not sufficient to toll the statute of limitations.
 

"Contrary to the plaintiff's contention, the statute of limitations was not tolled by the continuous representation doctrine (see Dignelli v Berman, 293 AD2d 565; cf. Shumsky v Eisenstein, 96 NY2d at 168; see also Maurice W. Pomfrey & Assoc., Ltd. v Hancock & Estabrook, LLP, 50 AD3d 1531; Zaref v Berk & Michaels, P.C., 192 AD2d 346). The defendants' subsequent representation in matters unrelated to the specific matter that gave rise to the alleged malpractice was insufficient to toll the statute of limitations (see Dignelli v Berman, 293 AD2d at 565). Accepting the facts alleged in the plaintiff's complaint as true, there was a nine-year lapse between the defendants' representation as to the employment agreements. The continuous representation doctrine does not contemplate such intermittent representation (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9; Shumsky v Eisenstein, 96 NY2d at 167-168; Loft Corp. v Porco, 283 AD2d 556). Accordingly, the Supreme Court correctly granted the defendants' motions to dismiss the complaint insofar as asserted against them as time-barred. "
 

In a  Court of Appeals  case which limits potential liability, or more correctly put, continues a limit of potential liability of a corporation's outside professional advisors, including attorneys. In Kirschner v Kpmg Llp ; 2010 NY Slip Op 07415 ; Court of Appeals ; Read, J. we see a discussion of this accountant's malpractice question:

""Would the doctrine of in pari delicto bar a derivative claim under New York law where a corporation sues its outside auditor for professional malpractice or negligence based on the auditor's failure to detect fraud committed by the corporation; and, the outside auditor did not knowingly participate in the corporation's fraud, but instead, failed to satisfy professional standards in its audits of the corporation's financial statements?" (In re Am. Intl. Group, Inc., 998 A2d 280 [Del 2010]).

"The doctrine of in pari delicto [FN4] mandates that the courts will not intercede to resolve a dispute between two wrongdoers. This principle has been wrought in the inmost texture of our common law for at least two centuries (see e.g. Woodworth v Janes, 2 Johns Cas 417, 423 [NY 1801] [parties in equal fault have no rights in equity]; Sebring v Rathbun, 1 Johns Cas 331, 332 [NY 1800] [where both parties are equally culpable, courts will not "interpose in favor of either"]). The doctrine survives because it serves important public policy purposes. First, denying judicial relief to an admitted wrongdoer deters illegality. Second, in pari delicto avoids entangling courts in disputes between wrongdoers. As Judge Desmond so eloquently put it more than 60 years ago, "[N]o court should be required to serve as paymaster of the wages of crime, or referee between thieves. Therefore, the law will not extend its aid to either of the parties or listen to their complaints against each other, but will leave them where their own acts have placed them" (Stone v Freeman, 298 NY 268, 271 [1948] [internal quotation marks omitted]). "

"Traditional agency principles play an important role in an in pari delicto analysis. Of particular importance is a fundamental principle that has informed the law of agency and corporations for centuries; namely, the acts of agents, and the knowledge they acquire while acting within the scope of their authority are presumptively imputed to their principals (see Henry v Allen, 151 NY 1, 9 [1896] [imputation is "general rule"]; see also Craigie v Hadley, 99 NY 131 [1885]; accord Center, 66 NY2d at 784). Corporations are not natural persons. "[O]f [*10]necessity, [they] must act solely through the instrumentality of their officers or other duly authorized agents" (Lee v Pittsburgh Coal & Min. Co., 56 How Prac 373 [Super Ct 1877], affd 75 NY 601 [1878]). A corporation must, therefore, be responsible for the acts of its authorized agents even if particular acts were unauthorized (see Ruggles v American Cent. Ins. Co. of St. Louis, 114 NY 415, 421 [1889]). "The risk of loss from the unauthorized acts of a dishonest agent falls on the principal that selected the agent" (see Andre Romanelli, Inc. v Citibank, N.A., 60 AD3d 428, 429 [1st Dept 2009]). After all, the principal is generally better suited than a third party to control the agent's conduct, which at least in part explains why the common law has traditionally placed the risk on the principal. "

"We are also not convinced that altering our precedent to expand remedies for these or similarly situated plaintiffs would produce a meaningful additional deterrent to professional misconduct or malpractice. The derivative plaintiffs caution against dealing accounting firms a "get-out-of-jail-free" card. But as any former partner at Arthur Andersen LLP — once one of the "Big Five" accounting firms — could attest, an outside professional (and especially an auditor) whose corporate client experiences a rapid or disastrous decline in fortune precipitated by insider fraud does not skate away unscathed. In short, outside professionals — underwriters, law firms and especially accounting firms — already are at risk for large settlements and judgments in the litigation that inevitably follows the collapse of an Enron, or a Worldcom or a Refco or an AIG-type scandal. Indeed, in the Refco securities fraud litigation, the IPO's underwriters, including the three underwriter-defendants in this action, have agreed to settlements totaling $53 million (www.refcosecuritieslitigation.com). In the AIG securities fraud litigation, PwC settled with shareholder-plaintiffs last year for $97.5 million (www.refcosecuritieslitigationpwc.com). It is not evident that expanding the adverse interest exception or loosening imputation principles under New York law would result in any greater disincentive for professional malfeasance or negligence than already exists [FN6]. Yet the approach advocated by the Litigation Trustee and the derivative plaintiffs would allow the creditors and shareholders of the company that employs miscreant agents to enjoy the benefit of their misconduct without suffering the harm. [*20]"

One has to shake the head and ask why all the effort goes into a law suit that will [or is so likely to] fail? The question is multiplied when plaintiff is an attorney seeking fees.

Rule 137 seems pretty comprehensive and exacting. Attorney who seeks a fee needs to serve th client with an opportunity to arbitate. Here in Messenger v Deem; 2009 NY Slip Op 29501 ;Decided on December 7, 2009 ;Supreme Court, Westchester County ;Giacomo, J. we see what turns out to be a total waste of time for everyone, including the jurors.
 

"In his complaint, plaintiff alleged that "Pursuant to Second Department case law, notice of right to arbitrate legal fees need not be provided to a client who never disputes the reasonableness of an attorney's legal fees...Defendant never disputed the reasonableness of Plaintiff's fees." (Complaint at ¶¶6-7.)

In her answer [FN1], defendant denied the allegations of the complaint and plead thirteen affirmative defenses including that plaintiff was not entitled to an attorney's fee because of his: failure to provide defendant with notice of arbitration before commencement of the suit ."
 

"Part 137 of the Rules of the Chief Administrator of the Courts provides for a Fee Dispute Resolution Program. A mandatory Arbitration Procedure is set forth therein for all representations that commenced on or after January 1, 2002, and is applicable "to all attorneys admitted to the bar of the State of New York who undertake to represent a client in any civil matter." 22 NYCRR 137.1.

Plaintiff argues that the mandatory arbitration provisions of Part 137 are inapplicable to the instant matter because, like in the Scordio matter, there was no disagreement as to the amount of attorney's fee due to plaintiff, and that defendant [*3]simply did not pay what was due. In Scordio, the Appellate Division, Second Department held that the mandatory arbitration notice provided for by then Court Rule 136.5 did not apply where the client did not dispute the reasonableness of the fees charged, and specifically declined "to follow the rule adopted by the Appellate Division, First Department, which obligates an attorney to send such a notice even in the absence of any fee disagreement with a client." Scordio v. Scordio, 270 AD2d at 329, 705 NYS2d at 59.

Court Rule 136.5, upon which Scordio was premised, was repealed in January 2002 and replaced with Court Rule 137.6. Former Rule 136, which was applicable only to domestic matters has been subsumed by the newer Part 137 which, with limited exceptions that are not alleged here, is applicable to all civil matters. Court Rule 137.6 is applied in the same manner as former Rule 136.5. See, Abinanti v. Pascale, 41 AD3d 395, 837 NYS2d 740 (2nd Dept., 2007); Borah, Goldstein, Altschuler, Schwartz & Nahins, PC v. Lubnitzki, 13 Misc 3d 823, 822 NYS2d 425 (N.Y.Civ.Ct., 2006). "

"A "fee dispute" (22 NYCRR §137.2) or a disagreement as "to the attorney's fee" [22 NYCRR §137.6(a)] is not only found when the former client complains as to time billings on a line by line basis. Under Part 137, arbitrators are entrusted to "determine the reasonableness of fees for professional services". 22 NYCRR §137.0. Here the defendant "disputed the reasonableness of the fees" plaintiff was charging. See, Scordio v. Scordio, supra , 270 AD2d at 329, 705 NYS2d at 59. The "reasonableness" of the fee cannot be limited to disputes as to whether an attorney should have charge "1.0 hours of billing time" instead of "1.2 hours of billing time". If such were the case a simple audit of the bill would be all that was necessary. Instead, arbitrators are given authority to evaluate and make a subjective finding of reasonableness. For something to be reasonable it must be fair and proper under the circumstances. To hold otherwise would render the Rule impotent and unenforceable. "
 

Here is a short, pungent and dispositive decision by the Appellate Division, Second Department in Zito v Fischbein Badillo Wagner Harding ; 2011 NY Slip Op 00285 ; Decided on January 20, 2011 Appellate Division, First Department.
 

We've seen a "charging lien" utilized as res judicata against a subsequent legal malpractice case, but the use of a "retaining lien" is much more rare. Presumably, there was litigation in which the Court also determined that fees were actually due to the law firm, and not simply that the law firm had the right to retain files pending a later determination.

"Plaintiff is collaterally estopped from seeking a declaration that he had cause to terminate his attorney-client relationship with defendant Nimkoff Rosenfeld & Schechter (the third cause of action) by this Court's order on a prior appeal, which implicitly determined that defendant was not discharged for cause, because in fact it was not discharged at all but voluntarily withdrew (see 58 AD3d 532 [2009]). Any other construction of the order would be contrary to law, since an attorney discharged for cause "has no right to compensation or to a retaining lien" (Teichner v W & J Holsteins, 64 NY2d 977, 979 [1985]). The issue of discharge that plaintiff raised in his legal malpractice action is identical to the issue addressed by this Court in the prior appeal of the original action. Indeed, during the prior appeal, plaintiff asked this Court to take judicial notice of the malpractice action he commenced in Nassau County, and fully briefed his malpractice claims.

The second cause of action, alleging legal malpractice, is barred under the doctrine of res [*2]judicata by the court's imprimatur of a retaining lien (see Kinberg v Garr, 28 AD3d 245 [2006]; Molinaro v Bedke, 281 AD2d 242 [2001]; Summit Solomon & Feldesman v Matalon, 216 AD2d 91 [1995], lv denied 86 NY2d 711 [1995]; see generally Blair v Bartlett, 75 NY 150, 154 [1878]). "

in legal malpractice, the judgment rule holds that an attorney may not be held liable for choices of strategy whether they turn out successful or not.  These choices may be in the selection of witnesses, in the selection of experts, in the choice of questions to ask witnesses, and, as we see in this criminal law case, in the choice of consessions made at trial. 

 Baston v. US, 10 CV 4344 (HB), NYLJ 1202514447306, at *1 (SDNY, NY, Decided September 8, 2011) ;District Judge Harold Baer;  Decided: September 8, 2011
"Pro se petitioner, Wilson J. Baston ("Petitioner"), brings this petition for a writ of habeas corpus to vacate, set aside, or correct his federal criminal sentence pursuant to 28 U.S.C. §2255. Petitioner is currently serving 17 concurrent prison terms of 135 months, after having pled guilty to multiple counts of mail and wire fraud. Petitioner has also requested an evidentiary hearing. For the reasons set forth below, the petition and request for an evidentiary hearing are denied."

"On March 5, 2008, Petitioner pled guilty pursuant to a plea agreement that contained a Stipulated Sentencing Guidelines Range of 87 to 108 months and indicated that the loss amount would be at least $7 million but less than $20 million, with the specific amount to be calculated prior to sentencing. These ranges were calculated based on data known to the U.S. Probation Department at the time. Additional victims continued to make themselves known to the Government and the loss amount grew. Before the sentencing hearing, the Probation "

In Petitioner's sentencing memorandum, Petitioner's attorney, Matthew Kluger ("Kluger"), acknowledged that the Final PSR's calculation was a more accurate reflection of the actual loss attributable to Petitioner's conduct, but requested that Petitioner be sentenced to serve 87 months — the minimum number of months specified in the plea agreement — or less. The Government's sentencing memorandum noted the discrepancy between the recommendations in the Final PSR and the plea agreement, and requested a sentence of 108 months in order to comport with both. The Court also received a number of written victim impact statements prior to sentencing. The parties made the same arguments at the sentencing hearing as they did in their written submissions. I reminded the parties that the Court is not bound by the plea agreement and, after hearing testimony from several victims, I announced a sentence of 135 months and a final restitution order of $22,396,633.57.

Petitioner appealed, arguing that his sentence should be vacated on grounds that the Government breached the plea agreement, that his counsel provided constitutionally ineffective assistance, and that the restitution order was improper. See United States v. Baston, 355 F. App'x 530, 531-32 (2d Cir. 2009). The Second Circuit Court of Appeals affirmed the judgment below. Id. at 533. The Court of Appeals found that Petitioner forfeited his claim that the Government breached the plea agreement by having failed to raise it at the appropriate time. Id. at 533. It also found no plain error which would make the restitution order improper. Id. at 532. The Court of Appeals dismissed Petitioner's claim for ineffective assistance of counsel without prejudice, on the grounds that the Supreme Court has stated a preference for resolving such claims in a habeas petition, id. (citing Massaro v. United States, 538 U.S. 500, 504 (2003)), and consequently that ground is asserted by Petitioner here.

On June 2, 2010, Petitioner brought this habeas corpus petition under 28 U.S.C. §2255. Petitioner alleges two grounds for relief. First, he claims to have received ineffective assistance of counsel at trial because his trial counsel (a) breached the plea agreement by conceding at sentencing that the loss and restitution amounts were accurate and (b) failed to investigate andcorrect errors in the loss and restitution amounts. Second, Petitioner claims that the calculation of the restitution order and loss amount were inaccurate."

"Courts have denied ineffective assistance claims in situations, where counsel conceded certain evidence at trial, because it was a strategic decision to make the concession. See id. at 699 (holding counsel's decision not to present or investigate certain evidence was strategic and virtually unchallengeable); United States v. Gaskin, 364 F.3d 438, 468 (holding counsel's stipulation to defendant's signature on trial exhibits was a strategic choice and decisions to stipulate to evidence are strategic as a rule); United States v. Berkovich, 168 F.3d 64, 67-68 (2d Cir. 1999) (holding counsel's decision to enter into a global stipulation was part of a "reasonable trial strategy").

Kluger's concession of the loss amount, with which Petitioner takes issue, was a strategic choice, made to avoid the risk of an even higher loss amount and perhaps an even higher sentence."
 

In this non-legal but professional  malpractice case, the question of which state law applies is answered decisively.  Rose v Arthur J. Gallagher & Co. ; 2011 NY Slip Op 06374 ; Decided on August 30, 2011 ; Appellate Division, Second Department concerns negligent quoting of premiums in an insurance transaction.  The parties debated a "contact" analysis for choice of law questions.  The Court looked at it differently:
 

"The three causes of action in question sound in tort and, thus, contrary to the parties' contentions, the conflict-of-laws standard that applies in contract-based actions (see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317-319) does not apply here. Since the laws alleged to be in conflict—including those regarding the availability of punitive damages, an important purpose of which is deterrence (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489) — are of a conduct-regulating nature, the law of the place of the tort applies (see Padula v Lilarn Props. Corp., 84 NY2d 519; Cooney v Osgood Mach., 81 NY2d 66, 72; Schultz v Boy Scouts of Am., 65 NY2d 189, 198; Shaw v Carolina Coach, 82 AD3d 98, 101). In this case, the allegedly negligent quote was requested by the plaintiffs, and provided by the defendants, through e-mail communications that were sent from and received in New York. Thus, the tortious conduct alleged in the amended complaint is governed by New York law. Since the parties charted a procedural course in which the viability of the three causes of action in question depends upon whether they are governed by Louisiana law, the [*2]Supreme Court properly awarded the defendants summary judgment dismissing those causes of action. "
 

When are limited NY contacts enough to allow an attorney from New Jersey to be sued in New York?  The question is easy to answer in the abstract. That answer is "to the extent permitted by due process."  In the actual or practical world, the answer is much more difficult.  PHILIP SELDON, Plaintiff, - against - REBENACK, ARONOW & MASCOLO, LLP and JAY MASCOLO, Defendants. Index No. 101042/11;101042/11 ;SUPREME COURT OF NEW YORK, NEW YORK COUNTY;2011 NY Slip Op 32364; 2011 N.Y. Misc. LEXIS 4328; illustrates the manner in which Courts decide this question.

"In November 2006, a judgment was entered against Seldon in Supreme Court, New York County, and in favor of Andrew J. Spinnell, in the amount of $515,013.00. Defendants did not represent plaintiff in the New York action. In an effort to collect the judgment, Spinnell docketed his New York judgment in Superior Court of New Jersey. As a result, a bank affiliated with two of Seldon's companies, restricted those companies from accessing funds.

Thereafter, Seldon was referred by the Middlesex County Bar Association to defendants Rebenack, Aronow & Mascolo, LLP ("Rebenack"), a New Jersey law firm. Plaintiff signed a retainer agreement with Rebenack on June 27, 2007. Rebenack commenced an action ("the bank action"), and filed an order to show cause in Superior Court, seeking to lift the restrictions. [**2] The Order to Show Cause was denied and the court permitted Spinnell to withdraw certain funds in satisfaction of his [*3] judgment. In October 2007 Spinnell filed a separate action, also in Superior Court, alleging that plaintiff, individually, and through his corporations, had fraudulently conveyed funds. In May 2009 a Superior Court judge decided that Spinnell's claims were barred because he failed to assert them in the bank action. In July 2010, the Superior Court Appellate Division reversed the lower court and remanded the action to trial court to determine "whether there were any issues of material fact."

In December 2010 the action was tried and the judge found that Seldon fraudulently conveyed his funds and was directed to pay Spinnell the monies owed on the New York judgment. At the trial Rebenack represented the corporations and Seldon appeared pro se. Thereafter, Seldon commenced the instant malpractice action by service of a Summons with Notice on January 26, 2011, alleging that Rebenack failed to properly prepare him for trial, and failed to properly represent him.

Rebenack, in support of its motion, submits: the complaint; a copy of the Appellate Division decision; a copy of [**3] the retainer agreement; and a copy of a Superior Court "Order and Judgment." Rebenack argues that it is a New Jersey firm that does not advertise or conduct business in New York. The underlying matter, Rebenack asserts, arose out of New Jersey litigation, and all meetings, and preparation for trial were done in New Jersey.

Rebenack admits that it "shared a single office" in New York City with a New York attorney from 2009 until January 2011, but, through the affidavit of defendant Jay Mascolo, claims that it had no staff or telephone listing for that office, and that the firm did not hold a New York bank account. Rebenack further concedes that the New York address was listed on its letterhead during that period, but asserts that the office was only used three times to hold EBTs in unrelated insurance matters, and that the office was now closed due to non-use.

Although a plaintiff bears the ultimate burden of proof on the issue of personal jurisdiction, in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs [**6] need not make a prima facie showing of jurisdiction, but instead must only set forth "a sufficient start," and "should have further opportunity to prove other contacts and activities of the defendant in New York as might confer jurisdiction under the long arm statute, thus enabling them to oppose the motion to dismiss."(Peterson v. Spartan Industries, Inc., 33 NY2d 463[1974]).

Rebenack maintained an office in New York until January 2011, in or around the time the summons and notice would have been served. Additionally, the New York address was listed on Rebenack's letterhead during the period from 2009 through January 2011. Thus, there is sufficient basis to deny Rebenack's motion and permit discovery on the issue of whether Rebenack was "doing business" in New York. (see; CPLR 3211[d]).

Wherefore it is hereby

ORDERED that defendant's motion is denied without prejudice to a new motion at the close of discovery on the jurisdictional issue; "

The decision in Gucci America Inc. v. Guess? Inc., doesn't answer the legal malpractice question, but it does answer the privilege question. Here's the back story from Noeleen Walder at the New York Law Journal:

"Mr. Moss, a graduate of Fordham University School of Law, passed the California bar exam in 1993 but went on inactive status three years later.

He was referred to Gucci by two of its outside counsel from Patton Boggs in Washington, D.C., and joined the company's Secaucus, N.J., office in 2002 to analyze real estate financials.

Just months after joining the company, Mr. Moss, who maintains he was hired as a "legal associate," filed a pro hac vice motion in U.S. Bankruptcy Court for the Southern District to represent Gucci, according to Magistrate Judge Cott's decision.

In 2003, Gucci promoted Mr. Moss to in-house counsel. In that position, Mr. Moss filed trademark applications in which he was labeled an "attorney-at-law and member of the Bar of California," represented Gucci in employment matters, and appeared before courts and administrative agencies on the company's behalf. In 2005, Gucci once again promoted Mr. Moss, this time appointing him director of legal services. Three years later, Mr. Moss was appointed vice president and director of legal and real estate.

In an affidavit, Mr. Moss said, "I did not believe that my inactive status in California limited my ability to practice law in any other jurisdiction where such practice was permissible."

Mr. Moss insists that no one ever brought up the issue of his inactive status during his eight years at Gucci.

For its part, Gucci has maintained that it "perceived" Mr. Moss to be an attorney authorized to practice law.

In an affidavit, Christy Leleck, a director of Human Resources at Gucci during Mr. Moss' tenure, said she never thought to confirm Mr. Moss' qualifications since "he was already perceived by senior management as the company's lawyer."

It was not until December 2009 that Gucci launched a "preliminary investigation" into Mr. Moss' status.

Gucci terminated Mr. Moss on March 1, a month after he reactivated his bar status in California.

In court papers filed in April, Guess maintained that Gucci could have discovered "with a few clicks of the mouse" that Mr. Moss was not licensed to practice law (NYLJ, April 19).

"Gucci could have readily learned that Jonathan Moss was not authorized to practice law simply by asking him whether he was an active member of the California Bar… And this is what Gucci never did in all these years as Gucci's legal counsel."

Magistrate Judge Cott agreed.
 

in PETER MCCLUSKEY, Plaintiff-Appellant, -v.- NEW YORK STATE UNIFIED COURT SYSTEM, CHIEF JUDGE JONATHAN LIPPMAN, GABOR & GABOR, DAVID GABOR, HOPE GABOR, Defendants-Appellees we see a pro-se litigant's swipe at the NYS Court system, and his former attorneys.  This Federal case takes place after plaintiff lost a legal malpractice case against the same defendant-attorneys.

You may not sue the State successfully for claimed mistakes of a judge. "The district court correctly dismissed the claims against the State Defendants. First, the claims against the State Defendants are based solely on judicial acts preformed by judges in their judicial capacity. Hence, the claims against Chief Judge Lippman are barred by the doctrine of judicial immunity. Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). In addition, McCluskey's claims for injunctive relief against Judge Lippman are barred by statutory judicial immunity because McCluskey did not allege that "a declaratory decree was violated" or that "declaratory relief was unavailable." 42 U.S.C. § 1983; see also Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999).

Second, the claims against the Unified Court System are barred by the Eleventh Amendment since it is an arm of the State of New York. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) ("This jurisdictional bar applies regardless of the nature of the relief sought."); see also N.Y. Const. art. 6, § 1 (creating the unified court system); In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) ("[The Eleventh Amendment] jurisdictional bar also immunizes a state entity that is an arm of [*6] the State.") (internal quotation marks omitted); Zuckerman v. App. Div., Second Dep't, 421 F.2d 625, 626 (2d Cir. 1970) (holding that the Appellate Division was not a person under § 1983). In addition, there is no evidence suggesting any waiver of sovereign immunity. See Fla. Dep't of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S. Ct. 3304, 73 L. Ed. 2d 1057 (1982) ("A suit generally may not be maintained directly against the State itself, or against an agency or department of the State, unless the State has waived its sovereign immunity.")."

The claim against the attorney failed too: "Likewise, the district court correctly dismissed the claims against the Gabor defendants. First, private actors are not proper § 1983 defendants when they do not act under color of state law. See Am. Mfrs. Mut. Ins. Co., v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999) (explaining that § 1983 actions do not reach purely private conduct). "[A] private actor acts under color of state law when the private actor is a willful participant in joint activity with the State or its agents." Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (internal quotation marks omitted). A "conclusory allegation that a private entity acted in concert with a state actor [*7] does not suffice to state a § 1983 claim against the private entity." Id.

McCluskey contends that Gabor acted "jointly" with the Appellate Division by moving to dismiss his appeal for lack of jurisdiction, a motion which the Appellate Division granted. This claim is meritless, see Ciambriello, 292 F.3d at 324, especially as McCluskey concedes that state law permitted Gabor to move to dismiss the appeal, and the Appellate Division had "no choice but to apply the reargument procedural rule uniformly."

Second, to the extent that McCluskey asked the district court to review state court rulings in favor of Gabor, his complaint was properly dismissed pursuant to the Rooker-Feldman doctrine. Lower federal courts lack subject matter jurisdiction in "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. V. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005). As the district court correctly concluded, McCluskey's allegations against Gabor largely reiterate the claims made in the original state court malpractice proceedings, [*8] claims that were dismissed on the merits."

From the NY TImes:

"A bill to overhaul the patent system that is before the Senate contains a provision that could get an influential law firm off the hook for a possible $214 million malpractice payment.

J. Scott Applewhite/Associated Press
“The key question is whether we will vote to bail out a law firm that made a mistake and now wants consumers and taxpayers to pay the freight for that error,” said Senator Jeff Sessions, above, and Senator Tom Coburn, in a letter to colleagues.
The provision clarifies how much time pharmaceutical companies have to apply for patent extensions that can provide extra years of protection from generic competition.

But critics, who have labeled the provision “The Dog Ate My Homework Act,” say it is really a special fix for one drug manufacturer, the Medicines Company, and its powerful law firm, WilmerHale. The company and its law firm, with hundreds of millions of dollars in drug sales at stake, lobbied Congress heavily for several years to get the patent laws changed.

The patent office initially said that the company had missed the deadline for applying for a patent extension by a day or two, potentially losing nearly four years of patent protection on its main drug, the anticoagulant Angiomax. The provision would guarantee that the Medicines Company got the extra patent protection, and it would relieve WilmerHale, which was hired to file the application, of a possible malpractice payment to its client.

On Thursday, the Senate is scheduled to vote on an amendment proposed by Senator Jeff Sessions, Republican of Alabama, that would strip the provision from the bill. “The key question is whether we will vote to bail out a law firm that made a mistake and now wants consumers and taxpayers to pay the freight for that error,” Senator Sessions and Senator Tom Coburn, a Republican from Oklahoma, said in a letter sent Wednesday to colleagues. They said the extra patent protection on Angiomax could cost hospitals and consumers $1 billion."

GABRIEL D'JAMOOS, , v. MICHAEL GRIFFITH, No. 08-3668-cvUNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2009 U.S. App. LEXIS 17868;August 12, 2009, discusses termination for cause and the proofs needed:

"Under New York law, an attorney may be dismissed by a client at any time with or without cause." Garcia v. Teitler, 443 F.3d 202, 211 (2d Cir. 2006). "If the discharge is for cause, [*7] the attorney is not entitled to fees." Id. "If, however, the discharge is without cause, the attorney may recover the value of services rendered in quantum meruit," id. at 211-12, "even where the attorney discharged without fault was employed under a contingent fee contract," Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 263 (2d Cir. 2004) (internal quotation marks omitted). "Poor client relations, differences of opinion, or personality conflicts do not amount to cause, which is shown by impropriety or misconduct on the part of the attorney." Garcia v. Teitler, 443 F.3d at 212.

We identify no error in the district court's conclusion that Griffith was not terminated as a result of such "impropriety or misconduct." Id. D'Jamoos's December 1, 1999 letter releasing Griffith notes plaintiff's "profound dissatisfaction with the [1998 settlement] and the quality of the representation that [he] received." At his deposition, D'Jamoos noted as causes for the termination, inter alia, Griffith's failure to enforce the 1997 settlement, his dissatisfaction with the 1998 settlement, and various trial-related omissions. To the extent these complaints "consist solely [*8] of dissatisfaction with reasonable strategic choices regarding litigation," under New York law, "[s]uch choices do not, as a matter of law, constitute cause for the discharge of an attorney." Callaghan v. Callaghan, 48 A.D.3d 500, 501, 852 N.Y.S.2d 273 (2d Dep't. 2008). Moreover, as the district court rightly emphasized, on March 27, 1998, D'Jamoos expressed, under oath, his agreement with the 1998 settlement. That he subsequently became dissatisfied with that settlement does not constitute "cause" for Griffith's termination warranting D'Jamoos's withholding compensation for counsel's services. To the extent plaintiff also cites certain litigation and enforcement delays that might support termination for cause, plaintiff has failed to offer evidence indicating that such delays were caused by Griffith. Finally, while we have noted that, "[i]f a client who retained an attorney under a contingent-fee agreement discharges that attorney because there is no chance of recovery for the client, the discharge may be for cause, and the attorney may not be entitled to fees in quantum meruit," Universal Acupuncture Pain Services, P.C. v. Quadrino & Schwartz, P.C., 370 F.3d at 265 n.7, we agree with the district [*9] court that the record does not demonstrate this to be such a case."

Cases in Landlord-Tenant court often have sad back-stories, and even sadder endings.  In Alves v 152-154 W. 131st St. Holding Co., Inc. ;2011 NY Slip Op 32328(U) ;August 25, 2011
Supreme Court, New York ounty ;Docket Number: 116783/10 ;Judge: Donna M. Mills we see only the begining of a tale so complex, that it does not bear repeating.

"In her affidavit, plaintiff states that she was originally represented by an attorney, Romeo Salta (Salta), who filed the initial complaint, which allegedly contained errors and was incorrectly served upon the parties. Salta was thereafter relieved by this court on March 18, 20 11. Plaintiff is representing herself, and wishes to continue in that status. Plaintiff elaborates that the original complaint was vague in its language. In addition, she claims that Salta failed to sue defendant William T. Hurley (Hurley) both personally and as the  President of the Board of Directors of the co-op, and did not serve him. She contends that the amended complaint would not prejudice defendants at this early stage of the action. A copy of the proposed amended complaint is submitted. This complaint contains fourteen causes of action. The first cause of action is brought against the landlord and Hurley, in his dual capacities, for malicious prosecution and/or abuse of process. The second cause of action is brought against the landlord and Hurley as president of the Board of Directors, for violation of Section 223-b of the Real Property Law, The third cause of action is brought against Hurley, in his dual capacities, for harassment. The fourth cause of action is brought against the landlord for respondeat superior. The fifth cause of action is brought against defendant Michael Schwartz (Schwartz), the landlord’s attorney, for negligence. The sixth cause of action is brought against defendant Barry Malin & Associates, P.C. (Malin), Schwartz’s employer, for respondeat superior. The seventh cause of action is brought against Malin, Schwartz, the
landlord and Hurley, in his dual capacities, for intentional infliction of emotional distress. The
eighth cause of action is brought against defendants Adam L. Bailey (Bailey) and Steven Decastro (Decastro), former attorneys of plaintiff, for negligence. The ninth cause of action is brought against defendants Bailey and Decastro for breach of fiduciary duty. The tenth cause of action is brought against Bailey, Decastro and defendant Gregory Calabro (Calabro), a former attorney of plaintiff, for breach of contract. The eleventh cause of action is brought against Calabro for breach of fiduciary duty:The twelfth cause of action is brought against Calabro for fraud andor negligence. The thirteenth cause of action is brought against Calabro for conversion. The fourteenth cause of action is brought against Bailey, Decastro and Calabr based on a fee dispute.

Opposition to this motion is brought by Bailey, Calabro, the landlord and Hurley. Bailey  argues that this motion must be denied because it lacks colorable merit. He claims that he did not represent plaintiff in his personal capacity but that his firm was retained by her. According to him, the retainer checks she sent to that firm were not made out to him, but to the professional corporation, “Adam Leitman Bailey, P.C.”

Moreover, he states that there are no grounds for negligence or breach of contract due to the fact that she did not lose the Civil Court suit. He avers that the timeliness of the suit was not due to any actions taken by his firm. The fee dispute concerns a demand for a refund of money to which Bailey claims his firm was entitled. Calabro opposes the motion on the ground that there is no merit to the breach of fiduciary duty claim, since, through his efforts, plaintiff was relieved from the Civil Court suit, and he, not plaintiff, was entitled to attorney’s fees in that case. The landlord and Hurley oppose the motion, arguing that, as well as lacking in merit, plaintiffs amended complaint was improperly served on them. They acknowledge that tlus court, by Order dated March 18,201 1, granted plaintiffs former counsel’s motion to withdraw as plaintiffs counsel, and directed him to serve notice to plaintiff directing her to appoint a “substitute attorney” within 60 days. This Order prevented them, and other defendants, from taking any further proceedings against plaintiff without leave of court for a period of 90 days after entry of this Order, which allegedly expire on July 6,201 1. The landlord and Hurley request that the court prevent plaintiff from filing or serving the proposed amended complaint until after the expiration date of the stay. 
In reply, plaintiff states that she is suing Bailey in his capacity as the owner of his law firm. She asserts that the claim of malpractice against him is valid and that he did not give her a retainer. She argues that Calabro was not entitled to all legal fees and that he initiated a Civil Court suit against her .to recover other1 unearned fees. She claims that she was not present or represented at the proceeding. That suit is allegedly stayed by court order.Plaintiff contends that the claims against the landlord and Hurley are valid as these defendants brought a holdover proceeding based on false grounds and as a vehicle for abuse and harassment, that was finally dismissed after three years of litigation. She opposes their request to delay her motion as pointless, since the order was allegedly meant to protect her temporarily  from further actions brought by defendants. She defends her decision to sue Hurley in a dual capacity,due to the nature of his alleged misconduct. "

Appellate Decisions are always correct, well reasoned, and exquisitely written.  Sometimes they are recalled and changed.  Landa v Blocker   2011 NY Slip Op 06370 ;  Decided on August 30, 2011 ;  Appellate Division, Second Department  is an example of the result of persistence in appellate work.
This case is an attorney fee/legal malpractice matter in which it was alleged that the client "approved" monthly statements.  If she approved, then an account was stated and there is little to no defense to the attorney fee issue.

So the Appellate Division found, and so the appeal ended, until appellant's attorney moved to reargue.  Here it was successful,

"ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff the principal sum of $193,525.40; as so modified, the judgment is affirmed, without costs or disbursements, those branches of the plaintiff's motion which were for summary judgment on the first cause of action of the amended complaint and to strike the eighth affirmative defense are denied, and the order dated April 13, 2009, is modified accordingly; and it is further

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648; Landa v Sullivan, 255 AD2d 295). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154; Rodkinson v Haecker, 248 NY 480, 485). The defendant asserted in her affidavit that she signed the invoices as "approved," not because she actually agreed that the amounts reflected therein were correct, but because she was told that no work would be done on her case unless she signed the invoices. For example, the defendant averred that, during a conference at the plaintiff's office, the plaintiff produced a number of unsigned billing statements and told the defendant that "the conference was not going to proceed until [she] signed the billing statements." According to the defendant, she signed the billing statements, but "[t]here was no intent on [her] part to accept the billing so that it could never, ever, be challenged in the future."

We note that the plaintiff's alleged refusal to proceed with his representation of the defendant unless the defendant signed the billing statements "would not constitute duress by reason [*3]of which [the defendant] would be entitled to have the written statement invalidated" (Miller v Storer, 1 AD2d 956, 956, affd 2 NY2d 815). Here, however, the defendant does not seek to invalidate or repudiate either the billing statements or the retainer agreement between the parties. Indeed, unlike the client in Miller, the defendant in this case has not asserted a counterclaim for rescission of any agreement between the parties. Rather, the defendant seeks only to defeat that branch of the plaintiff's motion which was for summary judgment on his cause of action to recover on an account stated by raising a triable issue of fact as to whether she agreed to or acquiesced in the correctness of the invoices. The facts asserted in the defendant's affidavit are sufficient to raise a triable issue of fact as to whether her acts of signing the invoices "were, in fact, acquiescence to their correctness" (Ween v Dow, 35 AD3d 58, 62).

The Supreme Court also improperly granted that branch of the plaintiff's motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive. The plaintiff failed to meet his prima facie burden of establishing his entitlement to judgment as a matter of law in connection with this affirmative defense (see Bomba v Silberfein, 238 AD2d 261). Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive, without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "

We rarely write about ourselves, but today we pass the 2500 article milestone.  In our case, we generally publish one article a work day, and today's submission makes 2501 articles.  We thank our readers for their interest in the legal malpractice world and its unique players.

Legal malpractice pops up in many transactional cases, and LZG Realty, LLC v H.D.W. 2005 Forest, LLC:011 NY Slip Op 06372;ecided on August 30, 2011;ppellate Division, Second Department is one.  Here malpractice was alleged in a mortgage transaction where there were multiple mortgages and the allegation of fraud in documents by the borower.

"In a letter dated May 9, 2011, the Hager defendants informed this Court that they and HDW had settled the first cause of action alleging legal malpractice asserted against them in the third-party complaint and that, consequently, they were declining to prosecute their cross appeal from so much of the Supreme Court's order as denied that branch of their cross motion which was for summary judgment dismissing that third-party cause of action. Summary judgment dismissing the third-party complaint in its entirety must, thus, be awarded to all of the third-party defendants in Action No. 1 since: (1) HDW has settled the first cause of action alleging legal malpractice; (2) the Supreme Court awarded summary judgment dismissing the second cause of action alleging fraud on the ground that HDW does not have standing to raise that claim, which involved an unrelated real estate transaction, and no party appealed that determination; (3) the mortgages are valid, thus defeating HDW's right to relief pursuant to the third cause of action in the third-party complaint; and (4) the Supreme Court awarded summary judgment dismissing the fourth cause of action alleging slander of title, and no party appealed that determination.

In addition, summary judgment dismissing all of the causes of action and cross claims for contribution must be awarded to the Hager defendants because HDW settled the legal malpractice claim, and the remaining grounds for seeking contribution, as set forth in the pleadings, are no longer viable (see Rosner v Paley, 65 NY2d 736, 736; Crimi v Black, 219 AD2d 610, 611). Similarly, there is no express or implied contract that would give rise to a cause of action for indemnification (see County of Westchester v Welton Becket Assoc., 102 AD2d 34, 42, affd 66 NY2d 642; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 786)."

Failure to advise a client of the attorney's malpractice (or hiding the malpractice) is not enough to give rise to a cause of action, but fraud in advising the client that attorney is licensed in Florida is enough.  In Rupolo v Fish ; 2011 NY Slip Op 06343 ;Decided on August 23, 2011 ;Appellate Division, Second Department  we see that while it may be too late to sue for legal malpractice, it is not too late for a claim in fraud.
 

"In the second cause of action the plaintiffs allege that the defendants committed legal malpractice with respect to the drafting of an easement agreement benefitting certain real property located in Florida and owned by the plaintiffs. The Supreme Court erred in denying that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss this cause of action as time-barred. The defendants demonstrated that the alleged legal malpractice occurred more than three years before the instant action was commenced on October 31, 2008 (see CPLR 214[6]; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017). Contrary to the plaintiffs' contention, they failed to raise a question of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation. Rather, the evidence demonstrated that the relationship necessary to invoke the continuous representation doctrine terminated during the summer of 2005 (cf. Marlett v Hennessy, 32 AD3d 1293, 1294; Piliero v Adler & Stavros, 282 AD2d 511), and the fact that the defendants received a telephone call from the plaintiffs' new counsel in November 2005, during which the defendants provided requested information to new counsel, did not toll the running of the statute of limitations until that date (see Tal-Spons Corp. v Nurnberg, 213 AD2d 395, 396). Accordingly, that branch of the defendants' motion which was to dismiss the legal malpractice cause of action should have been granted (see Williams v Lindenberg, 24 AD3d 434, 434-435).

However, the Supreme Court properly denied that branch of the defendants' motion [*2]pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging fraud as duplicative of the legal malpractice cause of action. As alleged in the complaint, the fraud cause of action was based upon tortious conduct independent of the alleged malpractice, i.e., an alleged misrepresentation as to the eligibility of the defendant Richard E. Fish to practice law in the State of Florida, and the plaintiffs alleged that damages flowed from this distinct conduct (cf. Weiss v Manfredi, 83 NY2d 974, 977 ["attorney's failure to disclose malpractice does not give rise to a fraud claim separate from the customary malpractice action"]; Iannucci v Kucker & Bruh, LLP, 42 AD3d 436). "

The perennial question of whether a prior proceeding might influence a later proceedings arises again in Feinberg v. Boros, 2010 NY Slip Op 30797, by Justice Emily Jane Goodman, in Supreme Court, New York County.

The legal malpractice claim arose after an arbitration between plaintiff and his former business partner, where defendants acted as Feinberg's party arbitrator and later as counsel in a law suit against the former accountants to the business. The claim is that defendants failed to advise plaintiff about the collateral estoppel effect of the arbitration award on his subsequent suit against the accountants for malpractice.

Such malpractice - malpractice lawsuits are more common than one might imagine. While the popular conception is that the client is litigious, or lawsuit-crazy, the better and more accurate version is that the client has moved from one situation to the next in search of a proper finding of liability.

"In 1997, plaintiff and his former partner, Norman Katz, submitted to arbitration the issue of the final purchase price of Katz's share of the jointly owned I. Appel Corporation, thus barring litigation of plaintiff's claims against the corporation's accounting firm (I. Appel Corp. v Mahoney Cohen & Co., 294 AD2d 196 [2002]; 6 AD3d 279 [2004], lv denied 4 NY3d 701 [2004]).

Plaintiff now seeks damages resulting from the alleged negligence of their former attorneys in failing to move to amend the arbitration award to insert language limiting the collateral estoppel effect of the award. We agree that plaintiff's pleading of his legal malpractice cause of action was sufficient to survive defendants' original CPLR 3211 (a) (7) motion. From the alleged facts, accepting them as true, according them the benefit of every possible favorable inference, and evaluating them only as to whether they fit within any cognizable legal theory, one could infer that plaintiff's former partner would have been amenable to an agreement limiting the estoppel effect of the arbitration award. Defendants have not established, as a matter of law, that even if plaintiff and Katz had entered into an agreement limiting the collateral estoppel effect of the arbitration award, the Mahoney Cohen lawsuit would nonetheless have been dismissed on collateral estoppel grounds (Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184 [1977]; accord Kerins v Prudential Prop. & Cas., 185 AD2d 403 [1992]). In circumstances involving arbitration, the parties themselves can formulate their own contractual restrictions on the carry-over estoppel effect (Matter of State Farm Ins. Co. v Smith, 277 AD2d 390 [2000]). Accordingly, plaintiff's proposed amended complaint sufficiently states a claim for legal [*2]malpractice (Deitz v Kelleher & Flink, 232 AD2d 943 [1996]; see also Tenzer, Greenblatt, Fallon & Kaplan v Ellenberg, 199 AD2d 45 [1993])."

 

What is a question of judgment, what is neglect of a case and what is ignorance of the rules in legal malpractice? Sometimes this is an easy question, other times, slightly more complex. in MCCORD -v.- O'NEILL,; No. 08-3096-cv ; Summary Order; UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2010 U.S. App. LEXIS 5139 we see the 2d Circuit's general definitions;
 

"Construing all the facts in McCord's favor, an independent review of the record shows that the district court properly granted O'Neill's motion for summary judgment. "To state a claim for legal malpractice under New York law, a plaintiff must allege: (1) attorney negligence; (2) which is the proximate cause of a loss; and (3) actual damages." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006). Under this standard, "[a] complaint that essentially alleges either an 'error of judgment' or a 'selection of one among several reasonable courses of action' fails to state a claim for malpractice." Id. (quoting Rosner v. Paley, 65 N.Y.2d 736, 481 N.E. 2d 553, 554, 492 N.Y.S.2d 13 (N.Y. 1985)). And, in general, "an attorney may only be held liable for 'ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action.'" Id. (quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 554 N.Y.S.2d 487, 489-90 (N.Y. App. Div. 1st Dep't 1990)).

Here, McCord's malpractice claim rested on the allegation that O'Neill's failure to contact Ron Lawrence, another employee of McCord's former employer, as a possible witness constituted [*4] negligence, and that, had Lawrence been a witness in his case, the district court would not have granted Airborne's motion for judgment of a matter of law and dismissed McCord's discrimination claims. O'Neill met his initial burden of demonstrating that his decision was a reasonable strategic choice by showing that the only information regarding Lawrence in McCord's possession at the time was Lawrence's "Summary of Disciplinary/Attendance History." This document showed that Lawrence, a Caucasian, had received much the same disciplinary treatment as McCord, undermining McCord's contention that calling Lawrence would have enabled him to demonstrate that his employer treated him less favorably than a similarly situated employee outside of his protected group. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). As the district court correctly observed, McCord adduced no evidence in response suggesting that O'Neill's failure to contact Lawrence was negligent, or that this decision could have proximately resulted in the court's unfavorable decision in Hill."

 

Plaintiff's practitioners are caught between a rock and a hard place when deciding how much to put in the ad damnum clause. Is $ 1 Million too little or too much? these legal malpractice defendant attorneys forgot the rule that no actual amount must be pled... So, they demanded $ 1 Million, and got a verdict for $ 2 million. What to do?

In Ambra v. Awad, 487/05;Decided: April 13, 2010;Justice F. Dana Winslow;NASSAU COUNTY
Supreme Court we see how the problem plays out:

"Plaintiff JOHN AMBRA ("AMBRA") brings this action against his former attorneys, defendants JOSEPH P. AWAD ("AWAD"), SILBERSTEIN, AWAD & MIKLOS, P.C. and GREGORY D. BELLANTONE ("BELLANTONE") (collectively, the "SILBERSTEIN, AWAD defendants" or "SILBERSTEIN, AWAD"), for losses incurred as a result of their alleged legal malpractice in a personal injury action entitled John Ambra v. Makko of Brooklyn, Ltd., Index No. 27901/98, Supreme Court, Kings County (the "Personal Injury Action"). The Court refers to the prior order of this Court entered September 20, 2007 [16 Misc.3d 1128(A)] (the "Prior Order"), and the decision of the Second Department affirming the Prior Order as modified [62 AD3d 732], for a complete recitation of the facts and procedural history of this action.

On April 15, 2002, Makko's excess insurer, with whom Makko had a $5,000,000 policy, disclaimed coverage on the basis of late notice. The disclaimer letter was forwarded to SILBERSTEIN, AWAD. On or about May 17, 2002, SILBERSTEIN, AWAD filed a written motion to increase the ad damnum. Before that motion was decided, AMBRA agreed to a settlement of the Personal Injury Action for $1,000,000, the amount of the primary insurance policy. A General Release was forwarded to AMBRA on or about May 29, 2002, and signed by AMBRA on June 17, 2002. The settlement resulted in a net recovery to AMBRA, after costs, expenses and attorneys fees, of $658,917.37. On or about July 8, 2002, SILBERSTEIN, AWAD sent a check to AMBRA (after deducting the amount of the workers' compensation lien) in the amount of $626,172.41.

AMBRA brought the instant action against the SILBERSTEIN, AWAD defendants, alleging, in sum and substance, that as a result of their negligence or malpractice, AMBRA was deprived of full recovery of the damages awarded to him by the jury. The Amended Complaint originally included four causes of action. The SECOND and THIRD causes of action were dismissed by this Court in the Prior Order, and the dismissal was affirmed by the Appellate Division.

On the evidence presented, the Court cannot find, as a matter of law, that the SILBERSTEIN, AWAD defendants were not negligent in their advice to AMBRA regarding the resources of Makko available to satisfy the verdict. The investigation regarding the potential assets of Makko is described in the BELLANTONE Affidavit. BELLANTONE states that he went to Makko's premises to view the property and operations. In addition, "[s]omeone from the firm conducted an internet investigation, went to the county clerk's office or consulted with a realtor to determine that Makko did not own its buildings…During the deposition of the witness from Makko in the underlying case, I inquired about Makko's operations, contracts and assets… . Prior to the trial of the underlying matter, I determined that Makko had a few trucks and a contract with Yankee Stadium to deliver pretzels and was an ongoing business. This was discussed with plaintiff." [BELLANTONE Affidavit, ¶¶5-8.]

The description of BELLANTONE's investigation is imprecise at best. To the extent that BELLANTONE relied on public records or reports regarding the financial condition of Makko at the time of settlement, he did not attach or incorporate specific reference to them in his Affidavit. To the extent that BELLANTONE relied on the deposition of a principal of Makko in the underlying trial, he also did not attach or incorporate specific testimony from the transcript of that deposition."
 

Siracusa v Sager   2011 NY Slip Op 32244(U);August 3, 2011;Supreme Court, Suffolk County; Docket Number: 06-35942; gives Judge: Peter Fox Cohalan the opportunity to review a many faceted matrimonial child support legal malpractice case. Aside from the question of why a father would resist paying $ 125 a week in child support, the case seems to hinge on whether and who made tactical decisions, and to what extent the plaintiff participated.

"The plaintiff commenced this action against the defendants Jeffrey Horn, Esq., Horn & Horn, Esq., and Horn, Horn & Ramme, Esq. (hereinafter collectively referred to as the Horn defendants), and Audrey Sager, Esq., Steven Gellerman, Esq., and Sager & Gellerman, Esq. (hereinafter collectively referred to as the Sager defendants) to recover damages he allegedly sustained as a result of their legal malpractice. The gravamen of the plaintiffs complaint is that Jeffrey Horn, Esq. and Audrey Sager, Esq. failed to confer with or prepare the plaintiffs certified public accountant, William Carney (hereinafter CPA), to testify on the plaintiffs behalf or to introduce documents from the CPA into evidence; that they advised the plaintiff to enter into a stipulation to modify his custodial arrangement from sole custody to joint custody; arid that they failed to make an application to disqualify the plaintiffs former wife’s attorney during their matrimonial action."

"In 1998, the plaintiff retained the Sager defendants to represent him in an action seeking sole custody of his infant daughter. Following the filing of a petition for sole custody, the plaintiffs wife commenced a separate action f’or a judgment of divorce. On March 12, 1999, they entered into a stipulation resolving the issues of custody and visitation and, on June 16, 1999, a judgment of divorce was granted. Under the March 12, 1999 stipulation, the plaintiff was designated as the non-custodial parent for child support purposes and the plaintiffs former wife was designated as the primary custodian. On December 8, 2000, the parties entered into a stipulation modifying the March 12, 1999 stipulation of custody. Pursuant to the new custody stipulation, the parents were given joint custody of the infant child, with the plaintiff designated as the primary custodial parent and his former wife designated as the secondary custodial parent. However, the issue of child support was left unresolved and a hearing on the issue of child support was scheduled."

"In opposition, the plaintiff has failed to demonstrate that the Horn and Sager defendants committed malpractice by allegedly not calling the plaintiffs CPA as a witness, by advising him
to enter into a modification of his March 12, 1999 child custody stipulation, or by failing to move to disqualify his former wife’s counsel (see generally Waggoner v Caruso, 14 NY3cl 874, 903 NYS2d 333 [2010]; Davis v Klein, 88 NY2d 1008, 648 NYS2d 871 [1996]). In any event, the plaintiff has failed to present any proof that such alleged failures were the proximate cause of any damages sustained by the plaintiff (see Leder v Speigel, 9 NY3d 836, 840 NYS2d 888 [2007]; Manna Fuel Oil Corp v Ades, 14 AD3d 666,789 NYS2d 288 [2d Dept 20051). The trial Court conducted a thorough hearing on the child support issue and noted that the testimony of the plaintiff was “evasive, contrived, inconsistent, and designed to obfuscate the financial issues before the court,” and that the plaintiffs explanations for his failure to produce tax returns, bank statements and checks was best described as “blase, indifferent and unconcerned.” The trial Court also noted in its  determination that the plaintiffs lifestyle and living accommodations bordered on lavish. Moreover, the plaintiffs claim of damages remains speculative and unascertainable (see Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 843 NYS2d 104 [2d Dept 20071; Dweck Law Firm v Mann, 283 AD2d 292,727 NYS2d 58 [Ist Dept 20011, Oot v Arno, 275 AD2d 1023,713 NYS2d 382 [4th
Dept 20001). Additionally, the CPA’s affidavit is without probative value since he states that he does
not have personal knowledge, and that his knowledge is based upon “what the plaintiff told
him and the documentation that he received from the plaintiff.” Despite its lack of probative
value, even if the Court were to consider this affidavit, the CPA fails to explain how the application of the “Gross Profits Tests” by the plaintiffs former wife’s expert, which found that the plaintiffs company was grossly understating its income, was an incorrect assessment. "

Justice Judith Gische of Supreme Court, New York County presents a primer on attorney fee litigation and the disposition of counterclaims for legal malpractice in Hurley v. Bulah Church of God in Christ Jesus, Inc. In this case the Church had gone through some hard times. A pastor was accused of financial wrongdoing, and the Church was in Bankruptcy Court for taxes and other debts. Attorney was retained, and worked on the case in what turns out to be an admirable fashion. When the Bankruptcy was winding up, leadership of the Church changed, and he was no longer so admired there. Effect? The Bankruptcy court approved fees, and he was paid. Nevertheless, there were post-discharge work and fees, and this dispute in state court followed.

Read for the excellent description of why and how an attorney is due fees. "an attorney who is discharged by a client for cause has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. Teichner by Teichner v. W & J Holsteins, Inc., 64 NY2d 977 (1985). On this motion plaintiff has successfully established that he: 1) owed unpaid legal fees; 2) was not discharged for cause, but withdraw as counsel with court approval; 3) deposited money into his attorney escrow account to be applied to post closing matters, like distribution of money to creditors, etc; and 4) Deacon Roberts was authorized to attend to the church's financial matters with respect to the reorganization. Thus, plaintiff has proved he is owed unpaid legal fees and other fees."
 

This is the story of an attorney who put his own freedom at risk in order to stymie a former client, and a successor attorney. Why, and the clumsy method undertaken is the mystery. in In re: RUBY G. EMANUEL, Debtor.;Chapter 7, Case No. 97-44969 (SMB); UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 Bankr. LEXIS 4024;December 23, 2009

"This matter has its origins in an unfortunate, fatal accident involving the debtor's husband. On December 17, 1992, Mr. Emanuel's employer was performing repairs on a barge in dry dock at the Brooklyn Navy Yard. The task called for the placement of a gangway connecting the barge to the dock. Mr. Emanuel was charged with the responsibility of placing the gangway. While standing on the gangway as it was being hoisted into place, Mr. Emanuel fell 45 feet to the bottom of the dry dock, sustaining massive injuries that rendered him a quadriplegic and ultimately led to his death on August 30, 2004. Emanuel v. Sheridan Transp. Corp., 10 A.D.3d 46, 779 N.Y.S.2d 168, 170-71 (N.Y. App. Div. 2004) ("Emanuel I").

The debtor retained Heller, individually and as administratrix of her husband's estate, to file a wrongful death action. Heller commenced suit against the barge owner, among others, asserting claims under the Jones Act, New York Labor Law and in negligence (the "Action"). Prior to the trial, on July 28, 1997, the debtor filed a voluntary petition [*3] for relief under chapter 7. By Order dated August 10, 1999, the Trustee retained Heller (and Samuel Hirsch) as special personal injury counsel to the Trustee to prosecute the Action." Heller won a multi million dollar verdict

Approximately one month after the Appellate Division reversal, Heller was disbarred. The charges that triggered the disbarment were unrelated to the Emanuel case.. The Appellate Division disagreed. Citing Heller's pattern of misconduct, "utter contempt for the judicial system" and "his consistent, reprehensible, [*5] unprofessional behavior," the court concluded that he should be disbarred rather than suspended:
In light of the cumulative evidence of respondent's 24-year history of sanctions, his perverse and persistent refusal to accept adverse rulings, reflective of an utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included screaming at, threatening and disparaging judges, adversaries and experts, intentionally defying court rulings, and disrupting and thwarting proper legal process through both physical and verbal aggression, we are of the opinion that the appropriate sanction here is disbarment.
Heller failed to purge himself of the contempt, and state Supreme Court Justice Silver issued a warrant for Heller's arrest on February 26, 2007. In re Emanuel, 406 B.R. 634, 635 (Bankr. S.D.N.Y. 2009) ("Emanuel II"). Heller was arrested that same day, and was subsequently sentenced to 30 days in jail and a $ 10,000 fine (the "Sentencing Order").

Deprived of Heller's files, J&M carried on the best it could relying on the Record on Appeal. 5 Eventually, it procured a $ 3.65 million settlement that the Trustee accepted.

Heller's post-disbarment conduct caused prejudice to his former clients. Having lost the case he tried, Heller obstructed J&M's attempts to retry the case he lost. His refusal to turn over the files, in the face of several court orders directing him to do so, was symptomatic of what the Appellate Division described as his "utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included . . . intentionally defying court rulings" in the Heller disbarment order. In re Heller, 780 N.Y.S.2d at 319. Furthermore, although he argued to the Appellate Division, as he does here, that the Record on Appeal included everything that [*25] J&M needed to retry the case, (see J&M Findings, Ex. 25, at 51-53), the Appellate Division concluded that Heller's contemptuous refusal to turn over the files caused "resulting prejudice to plaintiff's right to a new trial."
 

we've often written about privity and legal malpractice, and ran across this case illustrating the boundaries of privity in medical malpractice.  The facts are ghastly, and the outcome, for plaintiff, is doubly hurtful.

In Fox v Marshall ; 2011 NY Slip Op 06214 ; Decided on August 9, 2011 ; Appellate Division, Second Department ; Sgroi, J., J. the question is whether decedent's husband may sue a physician alleged to have negligently treated a psychiatric patient.
 

"In this case we address the often muddled issue of whether a legally viable medical malpractice cause of action can be asserted against a physician by a third party even though no doctor-patient relationship ever existed between these parties. Under the circumstances of this case, we conclude that the law does not recognize such a cause of action.

This action has its genesis in a particularly brutal and unsettling crime, the murder of Denice Fox by her neighbor, the defendant Evan Marshall, on August 17, 2006. Denice Fox, a retired teacher, lived on Willada Lane in Glen Cove, Nassau County. Prior to 2005, Evan Marshall lived, intermittently, at the home of his mother, the defendant Jacqueline Marshall, which was located two doors away from the Fox home. At the time of the crime, Marshall was 31 years old, had a history of substance abuse and psychiatric problems, and had, between August and November 2005, been treated at 10 different drug abuse and mental health facilities.

Beginning in November 2005, Marshall resided at and was treated at the defendant SLS Residential, Inc. (hereinafter SLS), a substance abuse and mental health facility located in Brewster, New York. According to the agreements governing patients-clients treated at SLS, enrollment in the facility's various programs was "voluntary." However, the agreements also stated that "a member" must give 30 days prior written notice of intention to "leave the program." There is no language in the agreements specifically governing a procedure whereby a member is permitted to temporarily leave the facility. The plaintiff alleges, however, that on August 16, 2006, the day before the murder, officials at SLS gave Marshall a "pass" to leave the facility for the ostensible reason of visiting his mother in Glen Cove. The plaintiff also alleges that Marshall was given the keys to his car and was permitted to leave the facility with $900 in cash, which he had earned from a part-time job while he was in treatment.
Upon arriving on Long Island, Marshall allegedly bought cocaine and then went to his mother's house, where he apparently spent the night. On August 17, 2006, at approximately 8:30 A.M., Marshall allegedly drove his car onto a footpath in Glen Cove and intentionally struck a woman who had been jogging thereon. Later that morning, Marshall rang the doorbell at Denice Fox's home and forced his way into the house. He then proceeded to murder Ms. Fox and dismember her body, which he then transported to his mother's house. Ultimately, the crime was discovered and Marshall was arrested. He has since pleaded guilty to, inter alia, the crimes of murder in the first degree and burglary in the first degree.

The Supreme Court denied the motion [to dismiss] and cross motions holding, inter alia, that a mental health facility may owe a duty to protect the public from the actions of an outpatient where there is evidence that the facility has the ability to control the patient's actions and has knowledge that the patient may be a danger to himself and others. The Supreme Court also found that the allegations, if proven, would establish that Jacqueline Marshall owed a duty of care to the decedent. We modify and conclude that the Supreme Court should have granted those branches of the motion and cross motions which were to dismiss the cause of action alleging medical malpractice, and [*3]should have granted Jacqueline Marshall's separate cross motion to dismiss the complaint insofar as asserted against her. "

"In the case at bar, Marshall was not involuntarily confined to the SLS facility. Nonetheless, the SLS defendants and the SLS employees exercised a certain level of authority and control over Evan Marshall. Although the degree of such control is unclear at this stage of the case, the mere fact that Marshall appeared to need a facility-issued pass in order to visit his mother suggests that he was not completely free to leave the facility (cf. Purdy v Public Adm'r of the County of Westchester, 72 NY2d at 9 - "[the patient] could come and go as she pleased"). The record also discloses that the SLS defendants and the SLS employees were aware of Marshall's severe psychological problems. Accordingly, accepting the facts as alleged in the complaint as true, and according "every possible favorable inference" to the plaintiff (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d at 87), the complaint herein sufficiently alleges a cause of action in negligence against the SLS defendants and the SLS employees (see Rivera v New York City Health and Hospitals Corporation, 191 F Supp 2d at 421; see also Williams v State of New York, 84 AD3d 412).

However, under the circumstances of this case, the absence of any doctor-patient relationship between the decedent and the SLS defendants or Stumacher precludes a cause of action based on medical malpractice. It has long been recognized that, as a general rule, the sine qua non of a medical malpractice claim is the existence of a doctor-patient relationship. Indeed, it is this relationship which gives rise to the duty imposed upon the doctor to properly treat his or her patient (see Bazakos v Lewis, 12 NY3d 631, 634; Payette v Rockefeller Univ., 220 AD2d 69, 72; Ellis v Peter, 211 AD2d 353; Heller v Peekskill Community Hosp., 198 AD2d 265; LoDico v Caputi, 129 AD2d 361, 363; see also Speigel v Goldfarb, 66 AD3d 873, 874). Therefore, a doctor's "duty of care is ordinarily only one owed to his or her patient" (Purdy v Public Adm'r of the County of Westchester, 72 NY2d at 9), and correspondingly, the element of duty would normally be missing from a claim made against a doctor by one who is not that doctor's patient. "

Plaintiff sues attorneys for a divorce situation in which he alleges they represented both him and his wife, and lost about $1 million for him in the proceedings.  His complaint, in Verdelis v Landsman ; 2011 NY Slip Op 32196(U); August 8, 2011; Sup Ct, NY County; Docket Number: 651767/10; Judge: Judith J. Gische survives both a CPLR 3211(a)(1)  and (a)(7) motion, yet is dismissed on the basis that it was brought 3 years + two weeks after the judgment of divorce was entered.  The Court finds that the cause of action accrued on the date of entry of the judgment of divorce.

"Plaintiff claims that Defendants were retained to represent him in an uncontested divorce  proceeding, Daphne Sirneon v. Konstanhos Verdelis, 30981 1/07, (the “Underlying Action”) involving his ex-wife, Daphne Simeon (“Sirneon”). Defendants deny the allegations and bring this pre-answer motion to dismiss the complaint based upon: (I) a defense founded on documentary evidence (CPLR 3 321 1 [a][l]), (2) the expiration of the statute of limitations (CPLR § 321 1 [a][5]),
and (3) failure to state a cause of action (CPLR 5 3211 [a][7]). Plaintiff opposes the
motion."

"Plaintiff alleges that in 2007, the defendants failed to inform him that they were not representing him. Specifically, Plaintiff claims that the Defendants improperly rendered legal advice to him and they did not advise him that there were adverse interests between him and his wife. Plaintiff claims that Simeon told him that the defendant’s fees were $5,476 and that he was to pay 1/2 of the fees by paying Simeon $2,738. Plaintiff further alleges that the Defendants protected Simeon to his disadvantage, and that they failed to advise him that he was entitled to equitable distribution of the marital assets that totaled approximately $2,000,000. Plaintiff also claims that they did not advise
him to seek outside counsel before he waived his right to approximately $1,000,000 in
distributable assets"

"Although the attorney-client relationship is contractual in nature, formality is not an essential element to its formation. Talanskv v. Schulman, 2 A.D.3d 355, 358 (1st Dept. 2003). An attorney-client relationship may exist where an attorney was involved in the drafting, preparation and execution of a separation agreement, even though the attorney did not negotiate its terms or provide advice to the plaintiff. Shanlev v Welch, 31 A.D.3d 1127 (2006); see also Leon v Martinez, 84 NY2d 83 (1 994) (plaintiffs pleaded enough to infer existence of attorney-client relationship where defendant attorneys had drafted agreement between their client and plaintiffs in which client agreed to pay portion of lawsuit proceeds to plaintiffs ). Allowing the complaint a liberal construction and taking into account the Plaintiffs submissions, Plaintiff has sufficiently pleaded a cause of action for legal malpractice."

"Defendant’s documentary evidence relied upon by defendants does not  conclusively, taken in a light most favorable to the Plaintiff, eliminate the possibility that an attorney-client relationship existed between Plaintiff and Defendants. Therefore, the Motion to Dismiss pursuant to CPLR 5 321 l(a)(i) is denied."

"A cause of action for legal malpractice based upon a divorce proceeding accrues on the date the
Judgment of Divorce was actually entered. Zorn v. Gilbert, 8 N.Y.3d 933 (2007). See, McCoy, supra, at 205 (Holding that the plaintiff had a cause of action on the day the divorce judgment was filed with the County Clerk’s office and as a result, plaintiffs claim was time barred as she brought it more than three years later). Consequently, Plaintiffs argument that his claim accrued when he was mailed the Judgment of Divorce is rejected. Based on the foregoing, Plaintiff was required to commence his action for legal malpractice against the Defendants by October 5, 201 0. Since the instant action was not commenced until October 18, 201 0, by the filing of a Summons with Notice, it is untimely under the applicable statute of limitations period. Plaintiffs First Cause of Action, for Legal Malpractice must therefore be dismissed as time-barred pursuant to CPLR 3321 I (a)(5).
This cause of action is time barred by statute."

In this recurring situation, plaintiff has both a California and a NY connection, and hired an attorney to do some work, which eventually goes sour.  Frequently a case like this comes up in the entertainment field, with its CA and NY roots.  As an example, Basilotta v Warshavsky ; 2011 NY Slip Op 32185(U); August 2, 2011; Sup Ct, NY County; Docket Number: 115525/09; Judge: Paul Wooten shows how the short CA statute of limitations (1 year) undermines the longer NY statute (3 years).

"During the 1980's plaintiff was a singer known for her popular 1982 song Hey Micky.  At all relevant times she has been a California resident.  In or about 2003, non party Fallon Inc produced a television commercial for the non-party Subway restaurant franchise that featured Micky without Plaintiff's knowledge or consent.  Subsequent to becoming aware of this commercial, plaintiff retained defendant Oren J. Warshavsky, who at the time worked at defendant law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione (“Gibbons”).’ Plaintiff alleges that she retained Warshavsky and Gibbons I) to seek compensation for the unauthorized use of Mickey in the commercial, and 2) to clarify her ownership rights to the Mickey master recordings. The retainer agreement between the parties was strictly contingency-fee based, and defines the scope of the retainer as “regarding all causes of action."

The gist of the legal malpractice case is that the attorneys got a settlement offer of $ 35,000 and when plaintiff did not accept, sent a letter to a successor attorney advising him of their position that, among other things, plaintiff had terminated her relationship with Gibbons in December, 2006.

The later legal malpractice case revolved around the ownership and exploitation of the master recordings and whether Gibbons was to blame for legal malpractice. Under CPLR 202, a cause of action accruing in a jurisdiction outside  NY must be timely both in NY and in that other jurisdiction. 

In legal malpractice, where the demanded relief is monetary damages, the site of loss is the plaintiff residence,  On this basis, the complaint was dismissed.

Chiantella v Kroll ;2011 NY Slip Op 32140(U) ;July 19, 2011 ;Sup Ct, Nassau County; Docket Number: 019337/07; Judge: Jeffrey S. Brown is a case that seems strange on all fronts.  Son is the beneficiary of mother's trust, yet when she dies, he seems held hostage by the attorneys of the estate.  Since the estate has a single beneficiary, the administrations seems top-heavy.  This situation inevitably leads to accusations of financial wrongdoing.  Tax refund checks go awry and accountings are demanded.  Is this legal malpractice, and might the beneficiaries attorney be liable for legal malpractice too?

"In this legal malpractice action, the plaintiff seeks to recover damages allegedly caused by the defendant attorneys ' negligence and mishandling in representing him with respect to his mother s Trust and Estate. The plaintiffs mother Lucy Chiantella created the Lucy Chiantella Revocable Trust on November 6, 2002. Bernard Vishnick and Lucy Chiantella were Co-Trustees and John Gavros
was named Successor Co-Trustee in the event that Vishnick or Chiantella ceased to serve.
Pursuant to the Trust, the plaintiff was to receive the monthly payments of principal and interest
on mortgages and notes held by the Trust immediately upon the Trust's receipt thereof and the
Trust' s income was to be distributed to him at least anually. The Trust provided that if the
plaintiff survived his mother, one-third of the Trust' s assets would be paid to him at her death
one-half of the remaining Trust assets would be paid to him on the third anniversary of her death
and the remainder of the Trust assets would be paid to him on the seventh anniversary of her
death. In the event that the plaintiff died without issue before all of the assets were distributed
the Trust balance was to be paid to various religious entities. The plaintiffs mother also made a
will which devised all of her residuary estate to the Trust. The plaintiff was the sole named
legatee. The plaintiff and Vishnick were Co-Executors of the Estate.
 

The plaintiffs mother died on April 14 , 2003.
 

Shortly thereafter, conflict regarding Vishnick' s handling of the Estate developed.  Via his first cause of action, the plaintiff has alleged malpractice and breach of contract based upon the defendants ' failure to procure all of the benefits to which he was allegedly entitled under the Trust and Estate. Plaintiff challenges the defendants ' failure to enforce the Trust and procure his mortgage income distributions upon their receipt, his annual distributions of Trust income and entire first and second Trust distributions. He also challenges the defendants ' failure to interpose objections to Vishnick' s Estate accounting and to procure an accounting of the Trust and to have him removed as Co-Trustee and Co-Executor. He also challenges the defendants ' failure to properly defend him in the holdover proceeding and counseling him to enter into the June 22, 2006 Settlement whereby he agreed to purchase property to which he was already entitled pursuant to the Trust which caused him the loss of an immediate distribution to which he was also entitled pursuant to the Trust, and counseling him to renounce a portion of mortgage income to which he was also entitled pursuant to the Trust. This plaintiff avers, was all done to generate counsel fees. The plaintiff now seeks to amend the first cause of action to include the defendants ' failure to procure his final distribution under the Trust at the seventh anniversary of his mother s death and to obtain a satisfaction of the mortgage which was placed on the Little Neck property pursuant to a June 22, 2004 Settlement.

As and for his second cause of action, the plaintiff seeks to recover damages for inter alia the defendants ' negligence in failing to properly advise him regarding his verses the Trust  and Estate s obligations for taxes; to properly defend him against Vishnick' s allegations that he stole money from the Trust, including the temporary restraining order; and, for counseling him to enter into September 11 , 2006 Settlement and in part falsely representing his consent thereto  in his release of Vishnick. The plaintiff seeks to amend his second cause of action to include andamages the defendants ' failure to challenge Vishnick' s failure to make the third distribution at
the seventh anniversary of his mother s death as required by the Trust; the defendants
withdrawal of the objections to Vishnick' s Estate accounting with prejudice; and their failure to
seek an accounting by Vishnick of the Trust.

The proposed Second Amended Complaint does no more than identifY with greater specificity the damages allegedly incurred by the plaintiff as a result of the defendants ' alleged negligence , some of which have only been realized since the commencement of this action. That those claims emanate from an agreement between plaintiff and Vishnick and that the plaintiff is precluded from recovering from Vishnick hardly serves to insulate the defendant attorneys pursuant to the doctrine of res judicata. Furthermore, whether the plaintiffs inability to recover ofVishnick is owing in whole or part to his attorneys mishandling of the special proceeding does not lay to rest the question of the defendants negligence and require that leave to amend be denied.

It's not as simple as one might think.  in Young v Quatela ;2011 NY Slip Op 32143(U); July 18, 2011;Sup Ct, Nassau County;Docket Number: 601658/09;Judge: Thomas Feinman we see how family and representation might be stretched or constricted based upon circumstances.

"The plaintiff moves by way of Order to Show Cause for an order (1) disqualifying the law firm of' L'Abbate , Balkan, Colavita & Contini, LLP, from further representation in this case because of unauthorized ex pare contact with the plaintiff and plaintiff s father, (2) sanctioning defendant Joseph Quatela and the law firm of' L'Abbate , Balkan, Colavita & Contini, LLP, awarding plaintiff
attorney s fees, (3) striking the Answer of defendant, Joseph Quatela based upon his misconduct, (4) suppressing any evidence improperly obtained by the defendants, (5) quashing a subpoena calling for the testimony of Raymond M. Young, (hereinafter referred to as "Sr. ), father of Raymond
Young, (hereinafter referred to as "plaintiff' and " Jr. ). While the movant's motion , by way or Order to Show Cause, seeks to disqualify the law firm of' L'Abbate , Balkan, Colavita & Contini, LLP, (hereinafter referred to as the "law firm ), " because of ex pare contact with plaintiff and plaintiff s father , (emphasis added), counsel' s affirmation in support of the motion only refers to purported ex pare communications with Sr. only, not plaintiff/Jr. , a par in this action.

Plaintiff s counsel later avers that he was retained to represent Sr. in a federal action brought by plaintiffs wife, Deborah Young, against Sr. and defendant, Joseph Quatela, whereby Deborah Young apparently claimed that the defendants wrongfully gained access to her home, while the
matrimonial action between Deborah Young and plaintiff/Jr. was pending. Although the plaintiff has not provided this Court with the name or action number of such federal action, the defendants have annexed a copy of the summons of the civil action entitled Deborah Young, Individually and as the parent and natural guardian of Melissa Young, Emmalee Young and Cecelia Young v. Suffolk County, Suffolk County Department of Social Services, Suffolk County Police Department, Michael Delgado, Joseph Quatela, Edmond Coppa, Individually and Edmond Coppa Photography, Raymond L. Young, Raymond M Young, News Newsday, New York Post, New York Daily News, CBS TV. COM bearing Index Number CV -3325/09, pending in the United States District Court for the Eastern District of New York, to the defendants ' crossmotion. The plaintiff, Deborah Young, and the infant plaintiffs, allege that the defendants essentially violated their civil rights. The plaintiffs allege inter alia that on or about February 21 2007, Jr. and others , brought garbage, debris, urine, feces and other matters into the premises and strewn them about, creating unsanitary,  uninhabitable and unsafe conditions while plaintiff left her residence for vacation. The complaint in the federal action also alleges that after Jr. trashed the premises, he summoned workers, friends, his father, the police, his attorney, (defendant herein, Joseph Quatela), the Department of Social Services, the media and others, defaming, embarrassing, ridiculing and humiliating the plaintiff, Deborah Young, and their three children. Thereafter, the complaint provides that the plaintiff children were placed into the custody of the Department of Social Services. 

The plaintiff, in the instant action, provides that the February 21 , 2007 incident drew a
significant amount of media coverage, and therefore, plaintiffs ex-wife brought the federal action.
Plaintiffs counsel submits that he learned that defendant, Joseph Quatela, and defendant' s counsel
had an ex pare communication with Sr. with respect to a proposed affidavit prepared for Sr.
 signature, as a result of receiving of notice for a deposition, and submits such communication
violates 22 NYCRR 1200 and DR 7- 104(A)(I), and warrants disqualification.

Such is one of the allegations in Chiantella v Kroll, 2011 NY Slip Op 32140(U); July 19, 2011; Sup Ct, Nassau County, which was recently decided by Justice Brown.  The fact pattern suggests that what is discussed is simply the tip of the otherwise submerged iceburg.  How this situation arise is not fathomable.  Here are the facts:

"In this legal malpractice action, the plaintiff seeks to recover damages allegedly caused by the defendant attorneys ' negligence and mishandling in representing him with respect to his mother s Trust and Estate. The plaintiffs mother Lucy Chiantella created the Lucy Chiantella Revocable Trust on November 6, 2002. Bernard Vishnick and Lucy Chiantella were Co-Trustees and John Gavros
was named Successor Co-Trustee in the event that Vishnick or Chiantella ceased to serve.
Pursuant to the Trust, the plaintiff was to receive the monthly payments of principal and interest
on mortgages and notes held by the Trust immediately upon the Trust's receipt thereof and the
Trust' s income was to be distributed to him at least anually. The Trust provided that if the
plaintiff survived his mother, one-third of the Trust' s assets would be paid to him at her death
one-half of the remaining Trust assets would be paid to him on the third anniversary of her death and the remainder of the Trust assets would be paid to him on the seventh anniversary of her
death. In the event that the plaintiff died without issue before all of the assets were distributed
the Trust balance was to be paid to various religious entities. The plaintiffs mother also made a
will which devised all of her residuary estate to the Trust. The plaintiff was the sole named
legatee. The plaintiff and Vishnick were Co-Executors of the Estate.

The plaintiffs mother died on April 14 , 2003.  Shortly thereafter, conflict regarding Vishnick' s handling of the Estate developed. When faced with Vishnick' s attempt to evict him from his lifelong home at his mother s Little Neck property, which had devolved to the Trust at her death, the plaintiff sought removal of Vishnick as Trustee and Co-Executor via prior counsel. When that attorney was discharged, the plaintiff retained the defendants via a retainer agreement dated May 14 2004. The retainer agreement provided that the defendants were retained to represent the plaintiff "in connection with the Estate of his mother and matters related thereto. " The plaintiff alleges that via the retainer agreement, he retained the defendants to represent him both as a beneficiary of the Trust and Estate and in his capacity of Co-Executor of the Estate. Ultimately, the plaintiff, represented by the defendant Martin Kroll of Kroll, Moss & Kroll, executed a Stipulation of Settlement on June , 2004 which provided that he was purchasing the Little Neck property which was owned by the Trust for $475 000. , towards which he was receiving a credit of$101 300. 36 as part of his initial Trust distribution; that the balance was to be paid to the Trust via a purchase money mortgage with six percent interest which balance including principal and interest was due on the seventh anniversary of his mother s death; and, that the plaintiff would procure life insurance
benefits of $375 000. 00 payable to the Trust. Via that Settlement, as part of his initial Trust
distribution, the plaintiff also acquired his mother s Rocky Point property which was valued at
$117 500. 00 and had also devolved to the Trust at her death

So, we are left to wonder why plaintiff bought a house that was his already, and why he took out a mortgage on money that was his already?

Lessons:  A party seeking leave to amend his/her complaint bears the burden of demonstrating that the proposed amendments are not palpably insuffcient or patently devoid of merit. See Zeleznik v MST Const.. Inc , 50 AD3d 1024 (2 Dept. 2008). "Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing part (see CPLR 3025(b)), the
motion should be denied where the proposed amendment is palpably insufficient or patently
devoid of merit." Ferrandino & Son. Inc. v Wheaton Builder. Inc.. LLC, 82 AD3d 1035 (2
Dept. 2011), citing Scofield v DeGroodt, 54 AD3d 1017, 1018 (2 Dept. 2008); Lucido v
Mancuso, 49 AD3d 220, 227 (2 Dept. 2008). Legal malpractice may be predicated on an
il-advised settlement agreement. Steven L. Levitt & Associates. P. C. v Balkin, 54 AD3d 403
Dept. 2008); Fusco v Fauci, 299 AD2d 263 (1 sl Dept. 2002). 

In this fascinating case, everyone lost, yet no one except Marc Dreier seems to be in the wrong.  Plaintiffs went through a bankruptcy with their business Cosmetics Plus.  They suffered the loss of two stores at WTC 1, and obtained insurance payments from AIG.  Defendants represented them in the bankruptcy, and then took their law practice to Dreier LLP.  The settlement monies were deposited into Dreier escrow accounts, and, yes, were deposited just before the arrest of Marc Dreier.

In Cosmetics Plus Group, Ltd. v Traub ;2011 NY Slip Op 32149(U); August 4, 2011
Supreme Court, New York County ;Docket Number: 113240/09; Judge: Judith J. Gische we see plaintiff''s motion for summary judgment denied and defendant's granted.

"While the court is sympathetic to the fact that plaintiffs, through no fault of their own, suffered a substantial financial loss, that loss is not answerable by the defendans in this action. For the reasons set forth below, the plaintiffs’ motion for summary judgment is denied and the defendants’ cross-motion for summary judgment is granted. Breach of Partnership Laws Preliminarily, the court recognizes that plaintiffs do not make any arguments in opposition to defendants’ cross-motion to dismiss the 4th COA. Defendants show that there is no ascertainable violation of the partnership law by either Taub or Fox. Summary judgment dismissing the 4th COA against them is, therefore, granted. Legal Malpractice is professional negligence. Brooks v. Lewin, 21 A.D.3d 731 (1st Dept 2005). An action for legal malpractice requires proof of negligence consisting of an
attorney’s failure to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community.  Darby & Darby PC v. VSI Intern, Inc., 95 NY2d 308 (2000)"

"The gravamen of plaintiffs’ motion is based upon their argument that defendants “flagrantly violated” Judge Beatty’s October 30, 2008 order by failing to distribute the escrowed funds to them within 15 days of that order. They argue that defendants were further negligent when, after receiving the proceeds from Dreier LLP which defendants deposited into the TBF escorw fund, they ultimately surrendered the funds over to Gowan, the trustee in bankruptcy, rather than paying plaintiffs. They also object to the fact that defendants paid themselves from the monies on hand.
Defendants claim that they are entitled to summary judgment dismissing all the theories of malpractice alleged in the complaint. Those theories include the arguments advanced by plaintiffs on this motion, as well as claims that defendants were negligent in failing to obtain a timely dismissal of the plaintiffs’ bankruptcy case, and in depositing the settlement proceeds into the Dreier LLP escrow account because the knew or should have known about Marc Dreier’s illegal conversions.
 

In their motion for summary judgment, plaintiffs do not address or provide any support for their claim that defendants either knew or should of known about Marc Dreier’s conversion of funds in the Dreier LLP escrow account. In the cross-motion defendants assert that they had no knowledge of Marc Dreier’s activities and had no reason to believe that the monies in the Dreier LLP escrow account were not being safely guarded. This claim is not addressed by the plaintiffs in their reply. Consequently, this claim is dismissed.

In their motion for summary judgment, plaintiffs’ do not address their pleaded claim that defendants should have proceeded more quickly to obtain the dismissal of the bankruptcy case following the settlement of the matter with AIG. Defendants have provided detail about the actions undertaken by Fox, after the AIG matter was settled, to bring this plaintiff‘s bankruptcy matter to conclusion. Fox’s services included proceeding with a structured dismissal, which allowed for the dismissal to be submitted to the court without any opposition by any interested party. While these matters took several months, plaintiff has not addressed why the time taken deviated from the time that could reasonably have been expected for such proceedings. Defendants, on the other hand,
have provided the court with an expert report from the Hon. Francis G. Conrad, a retired bankruptcy judge, that the time taken to negotiate and present the structured dismissal to the court, did not deviate from the standard of care and skill of an average New York bankruptcy attorney. Consequently, this claim is dismissed ,

In this fascinating case, everyone lost, yet no one except Marc Dreier seems to be in the wrong.  Plaintiffs went through a bankruptcy with their business Cosmetics Plus.  They suffered the loss of two stores at WTC 1, and obtained insurance payments from AIG.  Defendants represented them in the bankruptcy, and then took their law practice to Dreier LLP.  The settlement monies were deposited into Dreier escrow accounts, and, yes, were deposited just before the arrest of Marc Dreier.

In Cosmetics Plus Group, Ltd. v Traub ;2011 NY Slip Op 32149(U); August 4, 2011
Supreme Court, New York County ;Docket Number: 113240/09; Judge: Judith J. Gische we see plaintiff''s motion for summary judgment denied and defendant's granted.

"While the court is sympathetic to the fact that plaintiffs, through no fault of their own, suffered a substantial financial loss, that loss is not answerable by the defendans in this action. For the reasons set forth below, the plaintiffs’ motion for summary judgment is denied and the defendants’ cross-motion for summary judgment is granted. Breach of Partnership Laws Preliminarily, the court recognizes that plaintiffs do not make any arguments in opposition to defendants’ cross-motion to dismiss the 4th COA. Defendants show that there is no ascertainable violation of the partnership law by either Taub or Fox. Summary judgment dismissing the 4th COA against them is, therefore, granted. Legal Malpractice is professional negligence. Brooks v. Lewin, 21 A.D.3d 731 (1st Dept 2005). An action for legal malpractice requires proof of negligence consisting of an
attorney’s failure to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community.  Darby & Darby PC v. VSI Intern, Inc., 95 NY2d 308 (2000)"

"The gravamen of plaintiffs’ motion is based upon their argument that defendants “flagrantly violated” Judge Beatty’s October 30, 2008 order by failing to distribute the escrowed funds to them within 15 days of that order. They argue that defendants were further negligent when, after receiving the proceeds from Dreier LLP which defendants deposited into the TBF escorw fund, they ultimately surrendered the funds over to Gowan, the trustee in bankruptcy, rather than paying plaintiffs. They also object to the fact that defendants paid themselves from the monies on hand.
Defendants claim that they are entitled to summary judgment dismissing all the theories of malpractice alleged in the complaint. Those theories include the arguments advanced by plaintiffs on this motion, as well as claims that defendants were negligent in failing to obtain a timely dismissal of the plaintiffs’ bankruptcy case, and in depositing the settlement proceeds into the Dreier LLP escrow account because the knew or should have known about Marc Dreier’s illegal conversions.
 

In their motion for summary judgment, plaintiffs do not address or provide any support for their claim that defendants either knew or should of known about Marc Dreier’s conversion of funds in the Dreier LLP escrow account. In the cross-motion defendants assert that they had no knowledge of Marc Dreier’s activities and had no reason to believe that the monies in the Dreier LLP escrow account were not being safely guarded. This claim is not addressed by the plaintiffs in their reply. Consequently, this claim is dismissed.

In their motion for summary judgment, plaintiffs’ do not address their pleaded claim that defendants should have proceeded more quickly to obtain the dismissal of the bankruptcy case following the settlement of the matter with AIG. Defendants have provided detail about the actions undertaken by Fox, after the AIG matter was settled, to bring this plaintiff‘s bankruptcy matter to conclusion. Fox’s services included proceeding with a structured dismissal, which allowed for the dismissal to be submitted to the court without any opposition by any interested party. While these matters took several months, plaintiff has not addressed why the time taken deviated from the time that could reasonably have been expected for such proceedings. Defendants, on the other hand,
have provided the court with an expert report from the Hon. Francis G. Conrad, a retired bankruptcy judge, that the time taken to negotiate and present the structured dismissal to the court, did not deviate from the standard of care and skill of an average New York bankruptcy attorney. Consequently, this claim is dismissed ,

In Bernard v Proskauer Rose, LLP ; 2011 NY Slip Op 06184 ; Decided on August 4, 2011 ; Appellate Division, First Department  we see a situation in which plaintiff sues his attorneys, who defend by arguing that the plaintiff brought it all upon himself.
 

"In this action for legal malpractice, breach of fiduciary duty and breach of contract, plaintiff alleges that defendants Proskauer Rose, LLP (Proskauer) and Michael Album (Album), a partner at Proskauer, failed to adequately advise him regarding his departure from Oaktree Capital Management, L.P. (OCM), a real estate investment hedge fund. Plaintiff alleges that as a result of defendants' negligence he was sued in arbitration by OCM and sustained damages in the amount of $51.5 million, including forfeited incentive fees, compensatory damages paid to OCM, and legal fees. "

"In October 2005, plaintiff made an offer in OCM's name to purchase 60 Main Street, a real estate investment opportunity he first learned of in November 2004. The offer was made without OCM's knowledge or permission, and plaintiff furnished OCM's financial information in support. In November 2005, plaintiff entered into a purchase agreement for the 60 Main Street property in the name of one of his own entities, Westport Property Management, LLC.

On or about November 1, 2005, plaintiff decided to leave OCM. Album, a partner in Proskauer's Employee Benefits and Executive Compensation Group retained by plaintiff in October 2004, began discussions with OCM's general counsel for plaintiff's departure. On November 18, while discussions were ongoing, plaintiff resigned in writing as an employee and principal "effective immediately" and gave 120 days notice of his resignation as a member of OCM. On December 1, 2005, plaintiff issued a press release announcing the formation of Westport.

On December 12, 2005, the Executive Committee of OCM voted to expel plaintiff as a [*2]member due to his "abrupt departure and his announcement of the formation of a competing entity," and refused to pay him any incentive fees. Plaintiff initiated arbitration against OCM for recovery of fees he was purportedly owed and other damages. During arbitration, OCM learned of plaintiff's misconduct with regard to ROF IV and 60 Main Street and on November 7, 2006, expelled plaintiff as a member on these independent grounds. OCM counterclaimed for damages on the grounds that plaintiff breached his contractual and fiduciary duties, and misappropriated confidential financial information. "

"Here, the arbitrator found that plaintiff's dilatory conduct with regard to ROF IV, self-dealing with regard to the 60 Main Street opportunity, and misappropriation of OCM's financial information constituted breaches of his fiduciary and contractual duties. The arbitrator specifically found that "[b]eginning in early 2005" plaintiff was "stalling the launch of [ROF] IV so that he could deflect possible investment sources to the new entity he was forming." The arbitrator found that during the summer of 2005, plaintiff formed Westport Capital Partners, LLC, and began collecting OCM information to take with him to his new venture. He requested a list of all of his contacts at OCM and copies of quarterly investment letters, and obtained detailed information about OCM investments made by specific investors.

Relying on the arbitrator's factual findings, the motion court determined that plaintiff's course of misconduct began well before any purported advice received by plaintiff from defendants in August 2005. The court observed that there was no indication that "defendants knew of, or advised plaintiff to purchase 60 Main Street" for Westport, or to "collect[] OCM's financial information for his personal use." The motion court concluded that these activities, which the arbitrator found to be breaches of fiduciary duty and/or contractual duty, would have resulted in his justifiable expulsion regardless of his resignation.

The factual findings and issues resolved by the arbitrator establish that it was plaintiff's own misconduct prior to and apart from any advice from defendants that led to his termination for cause. The plaintiff had a full and fair opportunity to litigate these facts and issues at arbitration, and the application of collateral estoppel precludes him from relitigating them in this malpractice action (see e.g. GUS Consulting Gmb, 74 AD3d 678-679; Fajemirokun v Dresdner Kleinwort Wasserstein Ltd., 27 AD3d 320 [2006], lv denied 7 NY3d 705 [2006]).

Because the arbitral findings establish as a matter of law that defendants were not the cause of plaintiff's losses, the motion court properly dismissed plaintiff's complaint (see Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [2007], affd 11 NY3d 195 [2008]). Plaintiff's claim that had he not resigned, he may have been able to hide his fraudulent activities, [*4]continue to collect fees, and reach an agreement with OCM is purely speculative and does not raise a triable issue of fact (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434-436 [2007]; GUS Consulting Gmb, 74 AD3d at 679; Phillips-Smith Speciality Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 [1999], lv denied 94 NY2d 759 [2000]). "

Equitable estoppel is an argument which posits that (for example) the statute of limitations should  not bar an action, because defendant led plaintiff on, and kept plaintiff from timely filing a case.  In WASHINGTON MUTUAL BANK, Plaintiff, -against- LESTER YOUNG, RAYMOND MAR, MARILYN HARRIS, AKA MARILYN SELLER, US BANK NATIONAL ASSOCIATION, et al,  the argument succeeds for plaintiff.

"The statute of Limitations applicable to actions alleging conversion is three years (CPLR 214 [3]; Herman v Depinies, 273 AD2d 146, 710 N.Y.S.2d 899 [1st Dept 2000]), which begins to run at the time of the alleged theft even if the plaintiff is then unaware of it (Herman v Depinies, 273 AD2d 146, 710 N.Y.S.2d 899, supra.). Since the Check was deposited into the Beneficial account on March 11, 2005, Harris had until March 11, 2008 to bring her conversion claim. Thus, her conversion claim, commenced on July 7, 2008, more than three years after the alleged taking of the property occurred, is untimely (Close-Barzin v. Christie's, Inc.., 51 A.D.3d 444, 857 N.Y.S.2d 545 [1st Dept 2008]).

However, as argued by Harris, equitable estoppel may be invoked to defeat a statute of limitations defense where the "'plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action'" (Kaufman v Cohen, 307 AD2d 113, 122, 760 N.Y.S.2d 157 [1st Dept 2003] quoting [*8] Simcuski v Saeli, 44 NY2d 442, 448-449, 377 N.E.2d 713, 406 N.Y.S.2d 259 [1978]). The doctrine of equitable estoppel "requires proof that the defendant made [**7] an actual misrepresentation or, if a fiduciary, concealed facts which he was required to disclose, that the plaintiff relied on the misrepresentation and that the reliance caused plaintiff to delay bringing timely action" (Kaufman v Cohen, 307 AD2d at 122; see also Powers Mercantile Corp. v Feinberg, 109 AD2d 117, 490 N.Y.S.2d 190 [1st Dept 1985], affd 67 NY2d 981, 494 N.E.2d 106, 502 N.Y.S.2d 1001 [1986]). Here, Harris alleges that Dalley willfully concealed his involvement as a partner of Beneficial and a signatory of the checks that dispersed the underlying funds from Beneficial's account, which prevented the discovery of such information in a timely manner. The record relied on by Dalley to oppose Harris's equitable estoppel argument raises issues of fact, inter alia, as to whether Harris was aware of Dalley's relationship with Beneficial, prior to the expiration of the statute of limitations, and therefore whether the doctrine of equitable estoppel should be applied in the within circumstances. In particular, Dalley alleges that three (3) months after the closing date, Harris received a Beneficial check dated May 5, 2005, signed by Dalley, raising a factual issue as to whether Harris was aware of Dalley's connection to Beneficial, [**8] prior to the expiration of the statute of limitations. Thus, that branch of Dalley's motion to dismiss the fraud and conversions claims on the grounds of the statute of limitations is denied."

When may a criminal defendant sue her criminal defense attorney?  Almost never, and when it is permissible, usually in breach of contract.  Here, in CAROL PEIRCE, -v- JAMES NEUMAN,  Index Number 116678/2008; SUPREME COURT OF NEW YORK, NEW YORK COUNTY;2011 NY Slip Op 31812U; 2011 N.Y. Misc. LEXIS 3288 we see a case which loses on the facts, but not on procedural aspects of legal malpractice.  This claim is for a return of fees paid to an appellate practitioner. 

Typically the claim is that the attorney took money and did not produce an appeal, but this case is different.  "Plaintiff retained defendant pursuant to a flat fee retainer agreement entered into on April 3, 2008, to represent her in connection with an appeal of her recent conviction on charges of federal conspiracy to commit fraud, mail fraud, and theft from a program receiving federal funds (Mot. seq. 001, Neuman affid. [**2] at ¶ 5). The agreement took the form of a letter from defendant to plaintiff, dated April 3, 2008, and signed by both parties. Under the letter agreement, defendant would charge a total of $50,000.00 in legal fees for his representation, unless plaintiff agreed that it was ultimately not in her best interest to submit a post-verdict motion pursuant to Rule 29 or Rule 33, in which case the fee would be reduced to $40,000.00 (Mot. seq. 001, ex. B, letter agreement at 1).

The agreement provided for a series of payments and a schedule for the same. An initial payment of $7,500.00 was due immediately upon execution of the agreement, and, upon payment, defendant was to then undertake to review the record of the proceedings in order to evaluate whether a motion under Rule 29 or Rule 33 of the Federal Rules of Criminal Procedure should be submitted. If plaintiff opted to go forward with the motion, the agreement provided she would owe an additional $27,500.00 to defendant on or before April 14, 2008 (id. at 1-2). If plaintiff opted to forego the motion, the agreement provided, "then that amount of $27,500.00 may be submitted at a later date" (id. at 2). The letter agreement further stated that [**3] defendant would not file a notice of appearance until he had received a total sum of $35,000.00 (id.). The balance of the fee was to be due before the sentencing date. The amount of the balance depended on whether a a Rule 29 or Rule 33 motion was prepared; if it was the balance due would be $15,000.00 and if it was not, the balance due would be $5,000.00 (id.). The final [*4] paragraph of the letter agreement provides "[t]hough no guarantees have or can be made concerning the outcome of your case, I will represent you to the best of our ability" (id.)."
 

"The complaint alleges breach of contract by defendant because of his alleged failure to perform his obligations under the parties' letter agreement. "A breach of contract claim against an attorney based on a retainer agreement may be sustained only where the attorney makes an express promise in the agreement to obtain a specific result and fails to do so" (Pacesetter Communications Corp. v Solin & Breindel, P.C., 150 AD2d 232, 236, 541 N.Y.S.2d 404 [1st Dept 1989]). Here, the letter agreement includes a provision stating "[t]hough no guarantees have or can be made concerning the outcome of your case, I will represent you to [**8] the best of our ability" (Mot. seq. 001, ex. A, letter agreement). There are no actionable express promises made in the retainer agreement defendant is said to have breached. Furthermore, plaintiff cannot rely upon alleged [*7] oral promises made to overcome the express language of the contract sued upon (see Pacesetter, 150 AD2d at 236).

To the extent plaintiff asserts causes of action for negligent representation and negligence, plaintiff is essentially alleging attorney malpractice (see Schwartz v Olshan Grundman, 302 AD2d 193, 199-200, 753 N.Y.S.2d 482 [1st Dept 2003]). To prevail on a cause of action for legal malpractice, plaintiff must satisfy three elements: (1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) actual damages (Leder v Spiegel, 31 AD3d 266, 267-268, 819 N.Y.S.2d 26 [1st Dept 2006]). In order to establish proximate cause, "plaintiff must demonstrate that 'but for' the attorney's negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any 'ascertainable damages'" (id.; citing Brooks v Lewin, 21 AD3d 731, 734, 800 N.Y.S.2d 695 [1st Dept 2005]). The failure to demonstrate proximate cause requires dismissal of a legal [**9] malpractice claim regardless of whether the attorney was negligent (Schwartz, 302 AD2d at 198).

Here, plaintiff does not offer sufficient proof establishing proximate cause. Plaintiff alleges that defendant's conduct caused her to lose the opportunity to file a post-conviction motion under Federal Rules of Criminal Procedure 29 or 32 (Mot. seq. 002, plaintiff's affid. at 19). However, plaintiff does not even attempt to provide prima facie proof that she would have succeeded if such a motion was filed. For this reason alone, plaintiff fails to establish the proximate cause element necessary to sustain a claim of malpractice. To the extent plaintiff seeks recovery under a theory that defendant negligently misrepresented that he would bring a post-conviction motion, such claim is extinguished by reference to the unambiguous terms of the retainer letter agreement, which clearly contemplates that a Rule 29 or Rule 32 may or may not [*8] be filed depending on defendant's evaluation of the record and applicable law (Mot. seq. 001, ex. A, letter agreement). Plaintiff's claim sounding in unjust enrichment is duplicative of her claim that she is entitled to a refund of the legal fees she paid to [**10] defendant."
 

Intentional infliction of emotional distess is rarely alleged alongside a legal malpractice claim, but here in WASHINGTON MUTUAL BANK, Plaintiff, -against- LESTER YOUNG, RAYMOND MAR, MARILYN HARRIS, AKA MARILYN SELLER, US BANK NATIONAL ASSOCIATION,, et al,  it is, to no avail.

"In its complaint, WaMu alleges that, on February 10, 2005, Harris and Mar, owners of the Subject Premises, conveyed title thereof to Young; that, in conjunction with this transaction, Young borrowed $800,000 from WaMu, and executed and delivered a mortgage to WaMu, which was recorded in the City Register of the City of New York on May 12, 2005 (the WaMu Mortgage). WaMu claims that the deed was misplaced or lost and not recorded, and that Mar, Harris and/or Young have failed and continue to refuse to re-execute a deed. WaMu therefore seeks, pursuant to Article 15 of the Real Property Actions and Proceedings Law, a judgment declaring defendant Young as the rightful owner of the Subject Premises.

In the third-party action, Harris alleges a fraudulent lending scheme involving third-party defendants Figaro Dezil (Dezil), a loan consultant from Washington Mutual Bank, Cal Stuart (Stuart), the title closer from Union National Abstract LLC (Union), and John A. Dalley, Esq. [**3] (Dalley), counsel obtained by Stuart and/or Dezil for Harris and Young. Harris asserts that Dezil and Dalley induced her to engage in a sale of her property located at 487 Manhattan Avenue, New York, New York to Young, which would include a long-term lease and an option to repurchase, rather than a refinancing. She also alleges, inter alia, that, at the loan closing, Dalley did not have Young sign an option agreement, that [*5] Dalley received a check for $9,500, from which he paid Dezil an illegal mortgage placement fee of 1% of the mortgage proceeds, and that the mortgage payoff check (the Check) made payable to Americas Servicing Company (ASC), was given to Stuart. Harris further asserts that the Check was not delivered to ASC, but was instead fraudulently endorsed by Stuart, and deposited into an account maintained at North Fork by Beneficial Settlement Services (Beneficial), which resulted in the inappropriate retention of the loan proceeds by Dezil, Dalley and Stuart. She also complains that the acceptance and payment of the Check by North Fork Bank (North Fork) and Citibank resulted in the theft of its underlying funds."
 

"However, that branch of Dalley' s motion for summary judgment dismissing Harris's claim for intentional infliction of emotional distress is granted. To establish a claim for the tort of intentional infliction of emotional distress, "a plaintiff must establish ... extreme and outrageous conduct; ... intent to cause, or disregard of a substantial probability of causing, severe [**10] emotional distress; ... a causal connection between the conduct and the injury; and ... severe emotional distress" (Suarez v Bakalchuk, 66 AD3d 419, 887 N.Y.S.2d 6 [1st Dept 2009]; see also Howell v New York Pout Co., 81 N.Y.2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350 [1993]). The conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community" (Murphy v American Home Prods. Corp, 58 NY2d 293, 303, 448 N.E.2d 86, 461 N.Y.S.2d 232 [1983] [internal quotations marks and citation omitted]).

Here, Dalley demonstrates that his alleged conduct, consisting of, inter alia, inducing Harris to sell her house to Young, not disclosing his signatory authority in the Beneficial [*11] account to Harris, and authorizing the disbursement of the loan proceeds from the Beneficial account, while deplorable, if true, did not rise to the level of being so extreme, outrageous and beyond the bounds of human decency to constitute the requisite conduct necessary to sustain a claim for intentional infliction of emotional distress under prevailing case law (see Murphy v American Home Prods. Corp., 58 NY2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232, supra). Further, Dalley establishes that [**11] Harris failed to make any evidentiary showing that the alleged conduct caused any mental or physical symptom or injury that would indicate the existence of severe emotional distress (see Howell v New York Post Co., 81 NY2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350, supra; see also Elbogen v Esikoff, 266 AD2d 15, 697 N.Y.S.2d 614 [1st Dept 1999]).

Additionally, a cause of action for intentional infliction of emotional distress should not be entertained "where the conduct complained of falls well within the ambit of other traditional tort liability" (Fischer v Maloney, 43 NY2d 553, 558, 373 N.E.2d 1215, 402 N.Y.S.2d 991 [1978]). As noted by Dalley, the alleged conduct attributed to him by Harris falls entirely with the scope of Harris's more traditional tort claims for, inter alia, fraud and breach of fiduciary duties.

Therefore, Dalley's motion, in Motion Sequence No. 009, is granted only to the extent of granting summary judgment dismissing Harris's fourteenth cause of action for intentional infliction of emotional distress as asserted against him."
 

It is often said (and sometimes sanctimoniously) that the legal malpractice claimant is simply trying to gain an advantage, or to avoid paying legal fees.  Here, in Matter of Price ; 2011 NY Slip Op 05814 ; Decided on July 5, 2011 ; Appellate Division, Second Department we see a different use of the claim.  "Respondent" is an attorney-escrow agent.

"In or about September and October 2005, SDLH was engaged in negotiations to sell its business to Great South Bay Automotive, Inc. (hereinafter Great South Bay). At or about that time, the respondent represented SDLH. Great South Bay, whose principals were Robert Gerstacker and Rob Despres, was represented by Richard Bartel.

Prior to the closing, a Notification of Sale, Transfer, or Assignment of Bulk, dated September 20, 2005 (hereinafter the Notification), was sent to the New York State Department of Taxation and Finance (hereinafter the DTF). The respondent was listed in the Notification as escrow agent in connection with the sale of SDLH. [*2]

At the closing, the respondent signed an escrow agreement wherein he acknowledged, inter alia, that he received a check payable to himself, as attorney, in the amount of $82,393.02. From this money, the respondent further acknowledged that he would undertake to satisfy "the State, Suffolk Auto and Exhaust Warehouse." The reference to "the State" in the escrow agreement was to a tax liability owed by SDLH to New York State.

In or about February 2006, New York State issued a Notice of Determination assessing $58,890.03 against Great South Bay for the unpaid taxes of SDLH. By order to show cause, summons, and verified complaint dated April 26, 2006, Great South Bay and its principals commenced an action in the Supreme Court, Suffolk County, against SDLH, its principals, and the respondent entitled Great South Bay Automotive, Inc. v SDLH Automotive Inc., under Index No. 12040/06. The complaint alleged, inter alia, breach of contract due to the failure of SDLH and the respondent to satisfy the tax liability owed to New York State. In addition, there were causes of action to recover damages for fraud and breach of fiduciary obligations on the part of the respondent, as escrow agent, based upon his failure to satisfy the tax liability pursuant to the escrow agreement.

The respondent represented SDLH, its principals, and himself in the action. On behalf of SDLH and himself, the respondent submitted a verified answer sworn to on May 23, 2006. He thereafter submitted an affidavit in opposition to the order to show cause, sworn to on May 24, 2006, on behalf of SDLH and himself. In his affidavit in opposition, the respondent asserted, inter alia, that "at no time did your deponent receive any money from sales tax. There was no known debt to the State." The respondent further asserted that, pursuant to the Agreement for the sale of SDLH, he was required to hold only $1,000 in escrow to guarantee that SDLH received a release from New York State in connection with "unpaid sales tax" due. Great South Bay moved for summary judgment by notice of motion dated September 14, 2006.

By summons and third-party complaint dated September 25, 2006, and October 3, 2006, respectively, the respondent commenced a third-party action on his own behalf against Richard Bartel, attorney for Great South Bay, and its principals, entitled Price v Bartel. The respondent [*3]alleged, inter alia, that Bartel committed legal malpractice in his representation of Great South Bay in its purchase of SDLH.

The order also dismissed the third-party action, reciting that the third-party complaint "fails to state any cognizable cause of action and . . . Price lacks standing to assert certain claims." Specifically, the Supreme Court stated that "Price's claim for malpractice must fail because he lacks standing to assert such claim against Bartel as he was not in an attorney-client relationship with him. Moreover, on the merits, Price has failed to set forth any of the elements of a prima facie case of legal malpractice [citations omitted]."

The Law sites are consistently filled with stories of partners leaving firm A for firm B, and sometimes taking assoicates with them. Law firms fold and are re-cast as new firms. How does this restelss movement affect legal malpractice clients?

In The New Kayak Pool Corp. v Kavinoky Cook Llp ;2010 NY Slip Op 05176 ;Decided on June 11, 2010 ;Appellate Division, Fourth Department we see the Third Department's short-form answer.
 

"Plaintiffs commenced this legal malpractice action seeking damages arising from defendants' alleged malpractice in failing to ascertain the existence of insurance coverage for the parties sued by plaintiffs in the underlying trademark infringement action. The same attorney represented plaintiffs throughout the course of that action. That attorney began representing plaintiffs in 1999 when he was a partner in defendant Kavinoky Cook LLP (Kavinoky). When he subsequently joined defendant Hodgson Russ, LLP (Hodgson), plaintiffs executed a consent to change attorney form in June 2003, thereby substituting Hodgson for Kavinoky as plaintiffs' attorney of record in the underlying action. That action settled in February 2004 and the instant action was commenced in January 2007.

Supreme Court properly denied the motion of Kavinoky seeking summary judgment dismissing the amended complaint and cross claims against it. Kavinoky contends that the action against it is time-barred because it was commenced more than three years after the attorney in question left Kavinoky and the consent to change attorney form was executed by plaintiffs (see CPLR 214 [6]). We reject that contention inasmuch as the statute of limitations was tolled by the doctrine of continuous representation during the time that the same attorney represented plaintiffs in the underlying action (see [*2]Waggoner v Caruso, 68 AD3d 1, 7, affd ___ NY3d ___ [May 11, 2010]; HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 63 AD3d 534, 535)"

 

A prime worry for the legal malpractice practitioner, on either side of the aisle, is whether there is legal malpractice insurance. For the defendant, it is paramount; for the plaintiff it is significant. Much thought has gone into how to determine whether the target defendant has adequate [or indeed, any] insurance, and planning has to go into the target's application for insurance." One prime weapon that the insurer has is the "prior acts" doctrine. It says in essence that you must report all past prior acts that one might reasonably believe could lead to a law suit for legal malpractice, whether it has been started or not. We remember one managing attorney who shouted at least once a week: "Put the Carrier on Notice!" Sometimes he was right. Here, in Executive Risk Indemnity v, Pepper Hamilton, LLP, we see Justice Jone's decision on this issue: "We are asked to determine, under Pennsylvania law, whether excess insurers Executive Risk Indemnity Inc. and Twin City Fire Insurance Company, based upon their prior knowledge exclusions, and Continental Casualty Company, based upon rescission of its policies, were entitled to summary judgment declaring that they have no obligation to indemnify defendants Pepper Hamilton LLP and one of its members W. Roderick GagnÉ (collectively, the law firm defendants) in actions asserted against them for, among other claims, professional malpractice." "Executive Risk commenced this action against the law firm defendants and Westport, seeking a declaration that it had no obligation to indemnify defendants in the underlying actions. The law firm defendants counterclaimed for a declaration in their favor and brought third-party claims against Twin City and Continental Casualty. Executive Risk and Twin City relied upon Westport's prior knowledge exclusion, expressly incorporated into their policies, and Continental Casualty cross-claimed for rescission of its excess policies for 2002-[*4]2003 and 2003-2004. " "Here, it is undisputed that the law firm defendants knew of SFC's securities fraud months prior to the effective dates of the Executive Risk and Twin City policies. The courts below noted that GagnÉ subjectively believed, and informed Mr. Wilcox at least one month prior to the submission of one of the law firm's insurance applications, that he and the law firm could be subject to a lawsuit from their representation of SFC. Such a belief, although subjective, was also reasonable, but Pepper Hamilton did not provide that information to its insurers. Given the law firm defendants' role in the securitization of the loans and GagnÉ's close involvement with SFC, a reasonable attorney with the law firm defendants' knowledge should have anticipated the [*5]possibility of a lawsuit, particularly when millions of dollars may have been lost from activities of which they were aware. Here, the law firm's knowledge of its client's fraudulent payments prior to its application for excess coverage coupled with the fact that a reasonable attorney would have concluded that the law firm defendants would likely be included in the litigation because of their role in their client's business satisfy the test of Coregis and create an obligation for the law firm to inform its insurers of this potential litigation. Contrary to the Appellate Division's holding, the prior knowledge exclusion in this case does not require the known of act, error, omission or circumstance to be "wrongful conduct on the part of the insured" (Executive Risk Indem. Inc. v Pepper Hamilton LLP, 56 AD3d 196, 204 [1st Dept]). It excludes coverage of "any act, error, omission, circumstance . . . occurring prior to the effective date of the [policy] if any [insured] at the effective date knew or could have reasonably foreseen that such act, error, omission, circumstance . . . might be the basis of a [claim]." Here, on October 27, 2002, the effective date of the Executive Risk and Twin City policies, the law firm defendants knew of acts that occurred prior to that date, which they could have foreseen to be the basis of a claim. Thus, the prior knowledge exclusions apply to those policies.

The Third Department gives a nice analysis of the law of "account stated" in its decision, Antokol & Coffin v Myers ;2011 NY Slip Op 06051 ;Decided on July 28, 2011 ;Appellate Division, Third Department .
 

""'An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due'" (J.B.H., Inc. v Godinez, 34 AD3d 873, 874 [2006], quoting Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993], lv denied 82 NY2d 660 [1993]). An attorney can recover fees on an account stated "with proof that a bill . . . was issued to a client and held by the client without objection for an unreasonable period of time" (O'Connell & Aronowitz v Gullo, 229 AD2d 637, 638 [1996], lv denied 89 NY2d 803 [1996]).

At trial, plaintiff introduced evidence of a retainer agreement between Antokol and defendant as well as unpaid invoices for legal fees dated between September 1995 and December 1996. Antokol testified that these invoices were ordinarily sent to defendant on a monthly basis and that defendant did not object to the bills until plaintiff commenced this action. Defendant testified that she did not remember receiving monthly bills but, in her prior deposition testimony, acknowledged that she thought she had received a bill most months. Although defendant claimed to have had "constant conversations about the bills" with Antokol, and Antokol admitted that he made efforts to get her to pay, including offering a 10% discount in February 1996, he testified that defendant never offered a reason for her refusal to pay the bills. Indeed, with the exception of one specific objection to work completed by one of Antokol's colleagues, which defendant ultimately agreed to pay, defendant did not claim to have made objections to any specific bill, despite the language at the end of each bill stating, "The above information will be deemed correct unless objection is made within 30 days." Further, defendant admittedly made no written objections to the bills. Under these circumstances, we agree with Supreme Court that defendant's general claims of verbal refusals to pay did not constitute a specific objection sufficient to defeat plaintiff's cause of action for an account stated (see Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; J.B.H., Inc. v Godinez, 34 AD3d at 875-876; PPG Indus. v A.G.P. Sys., 235 AD2d 979, 980 [1997]; see also Zanani v Schvimmer, 50 AD3d 445, 446 [2008]). "

"Turning to the adequacy of the services billed for, we agree with Supreme Court that the record demonstrates that plaintiff provided competent representation in a difficult matrimonial matter. Antokol's failure to establish grounds for divorce in defendant's favor, albeit clearly a point of frustration for defendant, was irrelevant, as fault did not affect the equitable distribution of marital assets (see Howard S. v Lillian S., 14 NY3d 431, 435-436 [2010]). Defendant's assertions that Antokol should have presented expert testimony to increase her share of the marital estate and that he was not prepared for trial are counterbalanced by record evidence that Antokol's decisions were part of his trial strategy and his claims that defendant's refusal to follow his advice at times interfered with his ability to achieve better results for her. In sum, the record evidence fully supports Supreme Court's finding that the alleged inadequacies of Antokol's representation are insufficient to undermine plaintiff's right to be paid for its services (see Matter of Wapner, Koplovitz & Futerfas v Solomon, 7 AD3d at 916). "

A viable legal malpractice case arising from a criminal prosecution is very rare.  A criminal defendant may not sue the criminal defense attorney absent proof of "actual innocence."  Actual innocence is typically defined as acquittal, reversal or exoneration.  Here, in Dawson v Schoenberg; 2011 NY Slip Op 32033(U);July 8, 2011;Supreme Court, New York County
Docket Number: 16502/09;Judge: Anthony L. Parga we see two of the three. 

"This is an action for legal malpractice arising from the defendant' s representation of the plaintiff in the action entitled People a/the State a/New York v. Joetta Dean. Defendant was retained to defend the plaintiff following her arrest stemming from allegations that she sexually abused her three minor children. Plaintiff was indicted with thee counts of Course of Sexual Conduct Against a Child (PL 130. , a Class D Felony) and one count of Sexual Abuse in the Second Degree (PL 130.60(2), a Class A Misdemeanor). Defendant represented plaintiff through her first criminal trial, after which, on March 28, 2006, she was convicted of all counts. Plaintiff was sentenced to twenty-one years in prison. After her conviction, plaintiff terminated the services of the defendant and hired
successor counsel, Kevin Keating, Esq., who brought a motion on plaintiffs behalf to vacate the
judgment pursuant to CPL 440. 1 0 (hereinafter referred to as "440 motion ). After a hearing
was held before the first trial judge, the plaintiffs 440 motion was denied. Thereafter, plaintiff appealed her conviction to the Appellate Division, Second Department, which, on April 22, 2008, overturned plaintiff's conviction based upon a finding that the defendant rendered "ineffective assistance of counsel." In its decision, the Appellate Division, Second Department stated , "we do not find that any single example of deficient representation was sufficient to deprive the defendant of the effective representation of counsel. Rather, we conclude that, given the totality of her counsel' s deficient representation, the defendant was denied meaningful representation. Based upon the appellate court's' s ruling, the plaintiff was granted a new trial before a new judge. Represented by successor counsel, plaintiff was re-tried and acquitted of all charges in October 2008. After plaintiff's acquittal , the court record was sealed pursuant to N.Y. CPL 160. 50."

"The defendant is entitled to disclosure of the second trial transcripts, as the plaintiff has
placed the underlying criminal action at issue in this civil lawsuit, and as a failure to disclose the
second trial transcripts is prejudicial to the defense of this matter by the defendant. A cause of
action for criminal legal malpractice accrues when the criminal proceeding is terminated
, i.e. , on
the date when the indictment against the plaintiff is dismissed. (Britt v. Legal Aid 95 N.Y.2d
443 (2000)). Accordingly, plaintiff's claim for legal malpractice herein did not even accrue until
the conclusion of the second trial when she was acquitted of the charges brought against her. As
[* 2]
such, the transcripts from the second criminal trial, and the jury s verdict resulting therefrom, are
needed by both the plaintiff to prove legal malpractice, and the defendant to defend against said
claim.' Further, as the second trial was conducted by a different criminal defense attorney,
presided over by a different judge, possibly prosecuted by a different Assistant District Attorney,
and held before a different jury, factors other than the defendant's alleged malpractice may have
attributed to the favorable verdict for the plaintiff in the second trial."

Norman Arnoff writes in the NYLJ about professional liability, and concentrates in the SEC,  securities and  FINRA areas.  He writes, in regard to the Madoff proceedings:

"From cases involving the fraud perpetrated by Bernard Madoff upon a series of feeder funds in order to pass investors' funds into the fictitious accounts of his colossal Ponzi scheme, it is clear that most of our courts have not placed the appropriate responsibility upon the auditors and accountants for the feeder funds. In consequence this has dramatically diminished the ability of investors to pursue a viable recovery source by limiting professional liability insurance coverage as well as diluting an additional dimension of risk avoidance and loss prevention that accompany the underwriting procedures of the professional liability insurers."

"The analysis of the cases shows that the progress in the law will be better achieved by moving away from the formalities of a contractual or quasi-contractual relationship as a way of defining the accountants' professional liability risk to the more rooted and definitive standards established by the accounting profession itself. Foreseeable risk and the liability that comes with it should be sourced in the authoritative literature where the accounting profession sets its own standard of care...."
 

"Conclusion

The cases and the analysis that they represent are in a dynamic and now uncertain tension. The law legitimately should eliminate the professionals' liability risk of an indeterminate nature to unidentified groups for an extended series of transactions. Defining the scope of the accountants' liability by the formality of "privity" and "near privity," however, is not realistic in terms of what we expect and face in our capital markets and from the financial services industry that serves it. Systemic failures such as Madoff's fraud should now mandate better and more certain protection for ultimate investors.

Nor does creating statutory preemptions that foreclose certain private causes of action and conferring standing only upon the regulators and prosecutors make sense in view of the limitations of resources of government and regulatory authorities. Further review of, and reliance upon, professional standards will provide better answers for both the accounting profession and society to define the parameters of professional liability risk."

Law firm is retained by A and knows that A and B have a contractural relationship.  During the representation A notifies the law firm that if the case is settled some money will be given to B.  By the time that the case is actually settled, A rescinds the advice and tells the law firm to give all the money to A and none to B.  Does B have a cause of action against the law firm for non-payment?

In Ulu v Turkotrans Intl. Transp. Co., Ltd. ;2011 NY Slip Op 31803(U) ;July 1, 2011; Sup Ct, NY County; Judge: Barbara R. Kapnick sets the rules:
"Next, the third cause of action for breach of contract alleges that "defendants have breached their agreement to pay the Balance Due to Plaintiff from the Settlement Amount." (Compl. ¶ 34.) Defendant Law Firm argues that if plaintiff is alleging a breach of a contract between himself and the Law Firm, the claim fails because plaintiff never had an agreement directly with the  Law Firm with respect to the monies at issue in this case, or any matter relevant thereto, and that plaintiff has not provided any evidentiary support for the existence of such an agreement. If on the other hand, plaintiff is alleging a breach of a contract that existed between himself and Sensoz/Turkotrans, then the defendant argues that the claim cannot stand as against the Law Firm, because the Law Firm was not party to such an agreement. In his motion papers, plaintiff argues that an agreement
existed between plaintiff and the Law Firm, based on a series of emails, which required the Law Firm to transfer a portion of the settlement funds to plaintiff. Plaintiff cites the following deposition testimony of Mr. Vengrow, to show that there was a contract between plaintiff and the Law Firm:

Plaintiff also argues that he performed all of his obligations under the alleged agreement by paying the legal fees and expenses, but that t h e Law Firm failed to perform when it declined to transfer a  portion of the settlement funds to him and that he sustained damages as a result.  The issue here is whether a contract was actually formed between plaintiff and the Law Firm by virtue of the e-mail
communications between the parties and/or plaintiff's payment of legal fees.  "The elements of a breach of contract claim are formation of a contract between the parties, performance by the  plaintiff, the defendant's failure to perform, and resulting damage (citation omitted) .

The requirements for the formation of a contract are at least two parties with legal capacity to contract, mutual assent to the terms of the contract  and consideration. 2 P J I 4:l at 638-39 (2011) ; see also Maas v . Cornell Univ . , 94 NY2d 8 7 , 93-4 (1999)*   Consideration exists if
there is "a benefit to the promisor or a detriment to the promisee" and "it is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him." Weiner v. McGraw-Hill, I n c . , 57 NY2d 458, 464 (1982) (internal citations omitted). In the instant case, the February 28th E-mail is clearly not
a contract between Ulu and the Law Firm; it is a communication from Sensoz to the Law Firm, which confirms Sensoz's instructions to the Law Firm. To the extent that plaintiff is alleging that there was an o r a l agreement between himself and the Law Firm, the Court rejects this contention as well, finding that Ulu did not receive consideration from the Law Firm for his payment of the legal fees.

There is no evidence that Ulu paid the legal fees in exchange for either (1) a promise that the Law Firm would do something for him; (2) the Law Firm had done something for him; or (3) the Law Firm's forbearance of any acts. See Weiner v. McGraw-Hill, Inc., supra at 464. Accordingly, the Court finds that the Law Firm has established its entitlement to summary judgment dismissing the
fourth cause of action, insofar as it is pled against it.

The answer to today's question is "quite a ways."  Without further comment, here is Breytman v Schechter ; 2011 NY Slip Op 51375(U) ; Decided on July 22, 2011 ; Supreme Court, Kings County
Schack, J.
" In my prior February 8, 2011 decision and order, I granted defendants summary judgment and dismissed the instant action with prejudice. However, despite the dismissal with prejudice, plaintiff BREYTMAN now moves for various relief, including what the Court deems a motion to reargue. The Court, for reasons that will be explained, finds the instant motion "frivolous." It is completely without merit in law and undertaken primarily to harass and maliciously injure defendants SCHECHTER and the Court. After giving plaintiff BREYTMAN a reasonable opportunity to be heard and reviewing all papers submitted and the oral argument transcript, the instant motion is denied. Costs and sanctions are imposed upon plaintiff BREYTMAN for frivolous conduct."
 

"The following are some examples of plaintiff BREYTMAN's outrageous and offensive statements. Plaintiff begins his affidavit in support of the motion by stating, in ¶ 1, "I Alexander Breytman the last of the Mohicans have chutzpah to make this affidavit in support and against dishonorable Arthur M. Schack Universe and Donald Schechter Galaxy and Karl Marxist and Fredrick Engels' fuzzy Machiavellian order selling snake oil, legally deficient full of holes like Swiss cheese where I can fly space shuttle through [sic]." Further, at ¶ 5, plaintiff informs the Court "Your order is unconstitutional and I do not have to follow, lead or get out of the way, you just overruled by Pro se, how you like them apples [sic]." Then, at ¶ 11, he states, "I am immune from your dishonorable illegal order that is unconstitutional and therefore is null and void and is in effect under lock and key [sic]." Plaintiff, in ¶ 18, calls the Court "Your dishonor," claims that the Court is "both a communistic argument or fascist which for all intent and purposed are the same dam thing [sic]" and informs the Court that "You and your compadres are the problem that plagues this world and not a solution kapish'[sic]." Moreover, plaintiff states: in ¶ 26, "Your dishonorable unconstitutional hypocritical order is meaningless and I do need to comply at all [sic]"; in ¶ 27, "Your dishonor futile attempt to muzzle me only prolongs my pain and suffering [sic]"; and, in ¶ 31, "I am not your sheep for a slaughter. You try but will fail to set my world on fire rather it is your universe that will burn . . . I will rise like Phoenix out of ashes and will reverse your malicious Swiss cheese order . . . You and Schechter only prolong my pain and [*5]suffering and this I cannot and will not live with. I will do my crying in the rain. Donald Schechter Eureka moment is short lived [sic]."

Moreover, plaintiff did an internet search about the Court, reciting personal information about myself and my family that appeared in the New York Times on August 31, 2009, which is totally irrelevant to the instant motion. For example, he wrote, in ¶ 16, "You were a union representative and once walked a picket line with his wife . . . who was a teacher, too . . . Ooh schools in US suuuuuucccccckkkkkkssssss . . . You are not supposed to be picketing with UFT and quiet unethical conduct [sic]." Then, in oral argument, plaintiff attacked me for engaging in picketing, which occurred years before I became a judge, let alone a Member of the Bar. It is not a secret that years before my election as a judge I was a New York City teacher, United Federation of Teachers Chapter Chairman and on strike in 1968 and 1975. Yet, at p. 26, lines 5 - 22, plaintiff engaged in slander, equating events of 1968 and 1975 with the present"

"Clearly, the pattern of plaintiff BREYTMAN's conduct in the instant action is subject to costs and sanctions. Plaintiff's arguments in his papers, in support of the instant motion, and in the June 14, 2011 oral argument are replete with threatening, defamatory and malicious statements about defendants SCHECHTER and the Court. They are frivolous and "completely without merit in law or fact." Plaintiff BREYTMAN failed to make any specific allegations that the Court misapprehended or overlooked any matters of fact and law. The instant motion is but another example of plaintiff's continued harassment of defendants and abuse of the judicial process, with the addition of personal invective and animus directed at the Court. The instant motion prolonged this litigation and attempts "to harass or maliciously injure" defendants SCHECHTER and the Court. In this time of budgetary cuts, combined with increased caseloads, the Court does not need to waste its scarce resources to be the arena for plaintiff BREYTMAN's personal vendettas against defendants and the Court.

Therefore, based upon the totality of plaintiff BREYTMAN'S frivolous conduct in making the instant motion, the Court finds it is appropriate to award costs of $1,700.00 to defendants SCHECHTER for 10 hours of attorney's fees at $170.00 per hour. Further, for the waste of judicial resources and "to deter vexatious litigation and dilatory or malicious litigation tactics" by plaintiff BREYTMAN, the Court, in its discretion, imposes financial sanctions of $2,500.00 upon plaintiff BREYTMAN. "
 

Plaintiff sues defendant as ABC, Esqs. and later finds out that the firm really is ABC, LLP.  What are the consequences and how does one remedy the situation?  One answer is given in Koch v Kyong Min  2011 NY Slip Op 31951(U)  June 29, 2011  Sup Ct, NY County  Judge: Emily Jane Goodman

However, not having properly named the partnership defendant herein is not entirely fatal to Plaintiff. In Lolly v Brookdale Hosp. Med. Ctr. (37 AD3d 428 [2nd Dept 20071), the appellate
court stated the following, in relevant part:  Despite having been incorrectly named aa ‘The Brookdale University Hospital and Medical Center” in a prior action ... involving the same alleged misconduct, and asserting essentially the same causes of action as those pleaded in the instant complaint, the defendant herein represents that it has, in fact, been defending the prior action, that it has never disclaimed responsibility for the individual employees and residents’ identified in the prior action, and that ’a judgment ultimately entered against The Brookdale University Hospital and Medical Center will have the same effect as a judgment entered against The Brookdale
Hospital Medical Center.” Ba sed on these representations, this action was properly dismissed
pursuant to CPLR 3211(a) (4).  Id., at 428-429 (citations omitted). See also Velez v Union
Sanitordum Assn., Inc. , 64 NY2d 1119 (1985) (affirming dismissal of subsequent action where defendant in a prior action answered that complaint and atated that its name as sued in that action
was the proper entity allegedly responsible for the injuries, and Plaintiff also acknowledges that New York Partnership Law permits abbreviations ‘in addition to the registered name,” and
that it would be possible to amend the pleadings in the Related Action “to Incorporate the contents of this Complaint.“where plaintiff accepted the answer without objection).
 

Here, the record reflects that (I) Raguea & Min, Eaqs., the defendant named in the Related Action, had answered the complaint in that action and is defending that action; accepted the answer in the Related Action; issues of law and fact involving both the Related Action and the instant action; (4) the complaint in the Related Action pleaded causes of action that are essentially the same as in this action; and ( 5 ) the defendant herein has requested that "this action be diamissed as there is prior action pending againat Ragues & Min and no valid excuse to sue the firm once more here on the same grounds."

Courts seem to scrutinize the question of damages to a higher degree in legal malpractice litigation.  Break a leg in a slip and fall, and the Court will never review an x-ray on a motion for summary judgment; have a car crash and no court will call in the body-shop guy on the question of whether there was really damage to the bumper.  However in Legal Malpractice, there will be extensive review of actual v. ascertainable damages.  In Fielding v Kupferman 2011 NY Slip Op 31983(U) ;July 12, 2011;Supreme Court, : 113572/07;Judge: Eileen A. Rakower we see one such example. After analysis, and a motion to reargue, summary judgment is granted to defendants.
 

"This action, sounding in attorney malpractice, arises from a stipulation of settlement in a divorce action, wherein defendants represented plaintiff. Specifically, the alleged malpractice involves defendants advising plaintiff to sign the settlement agreement, which required that a 1.2 million dollar payment be made “within 30 days after the execution [of the stipulation of settlement] . . . in
immediately available funds.” Plaintiff claims that funds were not immediately available, as stated, and he failed to make payment as required. Plaintiff brought this action, and defendants moved to dismiss. The Appellate Division, reversing Justice Walter Tolub’s dismissal, found that, accepting plaintiffs allegations as true, the stipulation may constitute evidence of defendants’ negligence. Further, “a pleading need only state allegations from which damages attributable to the
defendant’s conduct may reasonably be inferred.” They went on to say that “at this early stage of the proceedings, plaintiff is not obliged to show that he actually sustained damages, but only that damages attributable to defendants’ conduct might be reasonably inferred.”

"Defendants later moved for summary judgment dismissing this action as against them. Defendants urged that any damages were pure speculation, and that plaintiff could not sustain his burden of showing, by proof in admissible form, that he suffered non speculative and ascertainable damages as a result of entering into  the stipulation of settlement which required that payment be made within 30 days in immediately available funds. This Court, after oral argument and by Decision and Order dated December 14,20 10, denied the motion. That decision is currently on appeal. Defendants now move to reargue. Defendants’ motion to reargue is granted and, upon reargument, defendants’ motion for summary judgment is granted."
 

"Finally, the question turns to whether plaintiff has shown “actual damages.” Assuming a jury were to find that the attorney negligence was the proximate cause of sending plaintiff through the many hoops he claims he had to jump through in order to meet his responsibility of paying approximately 1.2 million dollars within 30 days, the question remains, did plaintiff show that he suffered actual damages. Plaintiff claims that even if he suffered nominal damages, a finding in his favor would require defendants to disgorge back to plaintiff all of the fees they charged in representing plaintiff in his divorce action. "

Car strikes pedestrian and pedestrian sues driver.  Driver notifies its insurance company, and from there on in, the insurance company is in charge.  Everything's good, no?  In this case, definitely not.

Kaur v American Tr. Ins. Co. ;2011 NY Slip Op 05938 ;Decided on July 14, 2011 ;Appellate Division, First Department shows just how wrong things can go, and how the insurance company is left on the hook for $ 3.6 million dollars on a $ 100.000 policy.
 

"On March 3, 2003, Major Singh was injured when he was struck by a car owned by Gladys Towncars, Inc. (Gladys) and operated by Jose Grullon. On April 7, 2003, Singh and his wife, Sarbjeet Kaur, commenced a personal injury action against Gladys and Grullon claiming damages in the amount of $5 million. Upon the failure of Grullon's insurer, American Transit Insurance Company (ATIC), to answer or appear in the suit, Supreme Court, Bronx County (Norma Ruiz, J.), entered a default judgment on April 6, 2005, against Gladys and Grullon in the amount of approximately $5.4 million. On July 5, 2007, this Court reduced the judgment to approximately $3.6 million and otherwise affirmed (42 AD3d 313 [2007]). "

Plaintiff Kaur, who was appointed temporary receiver of the judgment debtors Gladys and Grullon with respect to the causes of action possessed by Gladys and Grullon, brought the instant action on March 3, 2008, alleging, inter alia, legal malpractice [FN1]. Plaintiff claims that ATIC's in-house counsel, Norman Volk & Associates, P.C. (Volk) failed to represent Gladys and Grullon in accordance with good and accepted legal principles and practices. Plaintiff further asserts that [*2]Baker, McEvoy, Morrissey & Moskovits, P.C. (BMMM) is liable as Volk's successor for the alleged malpractice.

By notice of motion dated September 12, 2008, BMMM moved for summary judgment dismissing the complaint against it on the grounds that it is not a successor to Volk, and has not merged or consolidated with Volk. In support, Ronit Moskovits, a partner at BMMM, submitted an affidavit stating that none of the principals of BMMM were principals of Volk, BMMM had not represented Gladys or Grullon in the underlying action, and BMMM had not assumed any of Volk's liabilities.

In this case, it is clear that the attorneys who worked at Volk continued to work exclusively as counsel for ATIC under BMMM. McEvoy affirmed that all of BMMM's partners had been attorneys at Volk, that BMMM would hire a majority of Volk's employees, and BMMM would maintain the same office location and phone number as Volk. He further stated that BMMM was formed for the express purpose of assuming and continuing Volk's business.

BMMM's argument that it cannot be a "mere continuation" because Volk survived the transaction "as a distinct, albeit meager, entity" (Schumacher, 59 NY2d at 245) is unavailing. John McEvoy affirmed that Volk's entire caseload consisted of its representation of ATIC, and that Volk was retiring as ATIC's attorney of record and from daily practice. Thus, when BMMM was substituted for Volk, Volk's business was effectively ended (cf. Schumacher, 59 N.Y.2d at 245; see also Woodson v American Tr. Ins. Co., 292 AD2d 160 [2002]). "

Attorneys are notaries, simply for the asking.  Notarized documents form the backbone of a legal system which relies upon their accuracy and deems the documents genuine.  The system of legal documents in NY (forget aboutt the rest of America) would come to a screeching halt in the absence of recognition of notarized documents.  What liability does a notarty (especially an attorney notary) have for mistakes?

in Koch v Kyong Min; 2011 NY Slip Op 31951(U); June 29, 2011; Sup Ct, NY County; Judge: Emily Jane Goodman we see a well reasoned discussion:

"The complaint alleges, inter alia, that Ms. Min violated New York Executive Law 5 135, which provides, in relevant part "[flor any misconduct by a notary public in the performance of any of his [or her powers auch notary public shall be liable to the parties injured for all damages sustained by them."

"Assuming, arguendo, that the consent form was notarized outside of Plaintiff's presence or that her signature was forged, any violation of Executive Law 5 135 is irrelevant, because the statute provides that any damages must be related to the alleged notarial misconduct. Rastelli v Gassman, 231 AD2d 507, 508 (2d Dept 1996)("There I s no cause of action for notarial
misconduct abaent injury and there can be no injury unless a , plaintiff can demonstrate that he or she relied to his or her detriment upon the alleged misconduct of the notary"); Saleh
Holdings Group, Inc. v Chernov, 30 Misc3d 1220(A) , 2011 NY Slip Op 50142(U)(Sup Ct, NY County 20ll)(plaintiff must show alleged loss was proximately caused by alleged fraudulent  notarization).detriment upon the alleged misconduct of the notary"); Saleh Holdings Group, Inc. v Chernov, 30 Misc3d 1220(A) , 2011 NY Slip Op 50142(U)(Sup Ct, NY County 20ll)(plaintiff must show alleged loss was proximately caused by alleged fraudulent notarization)."

A legal malpractice case involving $2.5 million dollars in legal fees survived a motion to dismiss, and will continue. Brendon Pierson of the  The NYLJ reported yesterday  that Justice Gische of Supreme Court, New York County decided motions.

"Winston & Strawn must face a $2.5 million malpractice suit from former shareholders of pharmaceutical company Biosynexus for allegedly botching the 2005 sale of the company, a Manhattan judge has ruled.

In OrbiMed v. Winston & Strawn, 13708/10, Supreme Court Justice Judith J. Gische (See Profile) allowed to go forward two of three claims in the suit, which was filed by medical investment firm OrbiMed on behalf of all Biosynexus' former shareholders. The shareholders claimed Winston & Strawn failed to disclose details of Biosynexus' licensing agreements while the shareholders were negotiating the company's sale to the hedge fund QVT Fund LP. As a result of that alleged failure, the shareholders claim they spent $2.5 million suing QVT in order to get paid in full for the $56 million sale.

Biosynexus was a private, closely held company with about 35 shareholders, including OrbiMed, which also held a seat on the company's board of directors, according to Justice Gische's decision. The company licensed one of its key products, an antibody called A110 used to prevent bacterial infection, from the Henry M. Jackson Foundation. Under the terms of that license, Biosynexus was allowed to sublicense the product to other companies as long as the sublicense included a provision that the sublicensee agree to all the terms of the original license. In 2002, Biosynexus sublicensed the product to Glaxo Group Ltd., but did not include that mandatory provision, according to Justice Gische.

Both the license with the Jackson Foundation and the sublicense were drafted by Winston & Strawn through its attorney Gerald Farano, who is now a partner at Jones Day and is not a party in the lawsuit. Mr. Farano was also a shareholder in Biosynexus"
 

We're pleased to point to our NY Law Journal article in today's paper on changes in the law following  Estate of Schneider v. Finmann, 15 NY3d 306 (2010).   For the full article, see today's NYLJ.

OK, George Clinton was not exactly our first choice for music.  After Jobim, Steely Dan, David Bromberg, he almost always came next.  We are more interested, however, in his legal malpractice story.  Here, without further embellishment is a very interesting article  from the Hollywood Reporter.com.

"George Clinton is taking some revenge on the law firm that sought to garnish his wages over unpaid legal bills. On Monday, the funk pioneer filed a $10 million lawsuit against Hendricks & Lewis for legal malpractice, fraudulent inducement, and breach of contract.

Long-time readers of this blog will know that Clinton's name has been connected to a number of aggressive -- sometimes trailblazing -- legal actions, including lawsuits over samples and trademarked phrases like "Bow wow wow yippe yo yippie yay."

In February, Hendricks & Lewis looked to garnish Clinton wages for $1.7 million owed and described its arbitration battles with the musician over legal fees. At the time, it appeared that Clinton's heavy litigation appetite had proven too costly, but in truth, determining who's responsible for the historically bullish litigation is extremely complicated. "  Read on...
 

We admit that this case has us a little confused.  In Pollan v Attie ;2011 NY Slip Op 51285 (U)decided on July 11, 2011 ;Supreme Court, Nassau County ; Marber, J. we see a plaintiff with a car accident personal injury case.  Attorney 1 stipulates to an arbitration with a high low.  It seems not to be arbitrated.  The court case is dismissed for failure to prosecute.  Attorney 2 is retained, more than a year later.  It is unclear whether he is retained to take over the car case or to sue attorney 1.  He does not restore the case, and eventually, he is sued. 
 

The kicker comes in the middle of the opinion, when the judge tells us that there was an arbitration award.  Because of this, all counts of the case are dismissed.  Question?  Why wasn 't the arbitration award part of the factual setting by the judge?

"With particular respect to the First cause of action, the Plaintiff alleges that due to the Defendant, Attie's, malpractice, she "was caused to lose her right to recover" in the personal injury action (see Verified Complaint at ¶ 38). However, inasmuch as that action has proceeded to arbitration, which resulted in the Plaintiff receiving an award in connection thereto, the allegations contained in the within complaint are plainly contradicted by the record (Doria v. Masucci , 230 AD2d 764 [2d Dept. 1996], supra; Mayer v. Sanders, 264 AD2d 827 [2d Dept. 1999], supra). Moreover, given the Plaintiff's arbitration award, the Plaintiff has suffered no damages proximately caused by the Defendant's purported malpractice (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007], supra).

Accordingly, the First cause of action is hereby DISMISSED. "

Malvasio v Savran;  2011 NY Slip Op 31763(U);  June 30, 2011; Supreme Court, Nassau County
Judge: Jeffrey S. Brown is an illustration of the "but for" element of legal malpractice.  Plaintiff must be able to demonstrate that there would have been a better or different outcome had the attorneys done their job.

"Plaintiffs claim fails to allege material facts giving rise to a cognizable claim alleging
legal malpractice. By demonstrating that plaintiff did not possess, and was unable to submit
sufficient evidence, i. , documentary evidence, of the existence of the purported loans, and
Ursula Egger s promise to repay same, the moving defendants have shown that the essential
element of "but for" causation is absent from plaintiffs legal malpractice claim. Plaintiff failed
to establish defendants ' negligence by showing they did not exercise the ordinary reasonable skill
and knowledge commonly possessed by a member of the legal profession.
Although the court must accept the allegations in the complaint as true, bare legal
conclusions, as well as factual claims either inherently incredible or flatly contradicted by
documentary evidence, are insuffcient to defeat a motion to dismiss. Here, the complaint fails to
plead specific allegations demonstrating that "but for" defendants ' alleged negligence , she would
have prevailed in the underlying action. Nothing in plaintiffs submissions sheds any additional
light on or demonstrates that plaintiff has a meritorious claim against defendants Katherine
Richards and/or the Pellegrini law firm. The facts show that defendants notified plaintiff that
they could no longer represent her and had closed their file in the underlying matter as of March
, 2008.
The summary judgment motion in the Suffolk County action was granted on default
seven months after plaintiff had retained new counsel on June 17 2008. Plaintiff has failed to set
forth any factual basis on which to conclude that had defendants opposed the summary judgment
motion at issue, plaintiff would have prevailed in the suit against Mark Egger and ultimately
received the monies allegedly due and owing by the Egger estate."

A Long Island practitioner persisted in moving and appealing, and the AD rewarded him with reversal of the dismissal of two of the causes of action in his case.  In Hoffman v Colleluori
2011 NY Slip Op 05669  Decided on June 28, 2011 ; Appellate Division, Second Department we see the AD calculating the statute of limitations for plaintiff, and his ability to sue.
 

"The Supreme Court erred in, upon reargument, adhering to its original determination granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the second and third causes of action to recover damages for legal malpractice. "A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" (Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018 [internal quotation marks and citation omitted]; see Arnav Inds., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303).

Accepting all the facts alleged in the complaint as true, the allegations are sufficient to state a cause of action to recover damages for legal malpractice in an underlying federal civil rights action. The plaintiff alleged in his complaint, inter alia, that the defendants failed to assert the underlying causes of action before the expiration of the applicable statutes of limitations, and that their negligence was a proximate cause of his damages (see Jennings v Raso, 251 AD2d 380, 380). While most of the underlying causes of action were time-barred before the plaintiff retained the [*2]defendants, the plaintiff's claim under 42 USC § 1983 arising from malicious prosecution was viable at the time the defendants commenced the federal action on the plaintiff's behalf (see Palmer v State of New York, 57 AD3d 364, 364; Pendelton v City of New York, 44 AD3d 733, 737). Moreover, contrary to the defendants' contention, the complaint "set forth allegations from which damages attributable to the defendant[s'] alleged malpractice might be reasonably inferred" (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 410; see Fielding v Kupferman, 65 AD3d 437, 442).

The Supreme Court also erred in, upon reargument, adhering to its original determination granting those branches of the defendants' motion which were pursuant to CPLR 3211(a)(1) to dismiss the legal malpractice causes of action. A motion pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Thompsen v Baier, 84 AD3d 1062). Here, the documentary evidence did not conclusively establish that all of the underlying causes of action were time-barred before the plaintiff retained the defendants. "

Legal proceedings in foreclosure settings have ebbed and flowed over the years.  Right now there is a tremendous backlog in the cases, mostly as a result of tightened rules.  The concept of Robosigners has recently been in the news, and this case highlights the dangers to bank attorneys in foreclosures.  HSBC Bank USA, N.A. v Taher ;2011 NY Slip Op 51208(U) ;Decided on July 1, 2011 ;Supreme Court, Kings County ;Schack, J.
 

"In this foreclosure action, plaintiff HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2007-2 (HSBC), moved, upon the default of all defendants, for an order of reference and related relief for the premises located at 931 Gates Avenue, Brooklyn, New York (Block 1632, Lot 57, County of Kings). Before considering plaintiff HSBC's instant motion, I issued a decision and order, dated November 8, 2010, instructing plaintiff's counsel, to comply with the requirements of Chief Administrative Judge Ann T. Pfau, in her Administrative Order 548/10 of October 20, 2010, that an affirmation be submitted "within sixty (60) days of this decision and order, or the instant foreclosure action will be dismissed with prejudice."

"On plaintiff HSBC's deadline day, January 7, 2011, the 60th day after issuing my November 8, 2010 decision and order, plaintiff's counsel, Frank M. Cassara, Esq., of Shapiro, DiCaro & Barak, LLC, submitted to my chambers the required affirmation, pursuant to Chief Administrative Judge Pfau's Administrative Order 548/10. Mr. Cassara, affirmed "under the penalties of perjury":

"Mr. Cassara's affirmation, affirmed "under the penalties of perjury," that to the best of Mr. Cassara's "knowledge, information, and belief, the Summons and Complaint, and other papers filed or submitted to the [*4]Court in this matter contain no false statements of fact or law," is patently false. Moreover, the Court is troubled that: the alleged representative of plaintiff HSBC, Christina Carter, who according to Mr. Cassara, "confirmed the factual accuracy and allegations set forth in the Complaint and any supporting affirmations filed with the Court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith," is not an employee of HSBC, but a robosigner employed by OCWEN LOAN SERVICING, LLC [OCWEN], whose signature on legal documents has at least three variations; the MERS to plaintiff HSBC assignment of the subject mortgage and note was executed by Scott W. Anderson, a known robosigner and OCWEN employee, whose signature is reported to have appeared in at least four different variations on mortgage assignments; and, the instant affidavit of merit was executed by Margery Rotundo, another robosigner, OCWEN employee and self-alleged employee of various other banking entities. "

Read on through the long discussion of robosigners, to the end.

American Lawyer reports that legal malpractice claims are on the rise in the US.

"Law firms are being hit with significantly more malpractice claims in 2011 than they were in 2010, according to a new survey of insurers that specialize in legal malpractice coverage. The sputtering economy and a sagging real estate market are the main culprits.
The survey--which covers the first six months of the year and was conducted by broker Ames & Gough--found that the volume of malpractice claims is up by between 11 and 20 percent at one insurance company so far this year.
The insurers polled by Ames & Gough--AXIS Insurance, Beazley Group, Berkley Select, CNA, Lexington Insurance, and Hartford Financial Services Group--collectively provide legal malpractice coverage to about 75 percent of large and midsize firms in the United States.
In addition to the company that said its claims' rate has jumped by as much as 20 percent, three others said they have seen claims rise by between 6 and 10 percent. The remaining two said their claims rates have remained stable so far this year. (Ames & Gough did not identify which of the surveyed insurers fell into which category and did not analyze the merits of any claims.)
The survey cited real estate practices as the most likely to be sued, with "conflict of interest" and "failure to file timely" as the most common claims. Real estate claims, Ames & Gough notes, have been on the rise for the past three years, thanks to the large volume of transactions that occurred between 2005 and 2008 and the collapse in property values that followed amid the country's broader financial collapse. The twin forces have prompted many parties to try to recoup real estate losses any way they can, according to Ames & Gough. "
 

In Legal Malpractice the question of a statute of limitations often arises.  Legal malpractice accrues on the date that the mistake is made, not on the day plaintiff discovers it.  Continuous representation allows plaintiff to continue to use the attorney, and does not require an immediate suit,  In Aronov v Law Off. of Roman Popik, P.C.;2011 NY Slip Op 31739(U);June 23, 2011;Sup Ct, NY County;Docket Number: 116100/09;Judge: Debra A. James we see one variant of the problem. 

Attorney represented client in the drafting of a partnership break-up and negligently drafted the non-compete portion so that it failed to restrain the retiring partner from competing.  It mistakenly restrained the remaining partners from competing against the retiring partner.

Law firm then represented the clients in a series of related litigations, but there were big time gaps between.  Was this continuous?

"It is undisputed that the defendants not only drafted the agreement that is the source of the  malpractice obligations, but represented the plaintiffs in subsequent litigation concerning
the agreement. appeals resulted in summary judgment being awarded against the
plaintiffs dismissing their claims in May 2005.  over the agreement apparently recommenced in August 2008 when the former partner sought to restore the action to t h e calendar and sought judgment on counterclaims against the plaintiffs. On June  2, 2009, the Appellate Division, Second Department awarded The initial phase of the litigation including The litigation summary judgment against the plaintiffs on monetary claims under the agreement. The defendants represented the plaintiffs in the entirety of the litigation. This court therefore finds that the plaintiffs are entitled
to the application of the continuous representation toll and that their claim f o r malpractice is timely. The defendants continuously represented plaintiffs w i t h respect to the agreement
provisions that are the subject of the malpractice claims (see Antoniu v Ahearn, 134 AD2 d 151, 152 -153 [1st Dept 1987) and therefore defendants motion pursuant to CPLR 3211 (a) (5) must be granted" (typo?)

It is a rare case in which a legal malpractice cause of action is upheld against the other side's attorney.  Privity of contract is the first thing one thinks about when gauging whether there can be a legal malpractice case.  Here, in Ginsburg Dev. Cos., LLC v Carbone ; 2011 NY Slip Op 05664
Decided on June 28, 2011 ; Appellate Division, Second Department  we see the rare occasion in which legal malpractice may lay against the other side's attorney.

"Accepting the facts alleged in the second amended complaint as true, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the second amended complaint states a cause of action to recover damages for legal malpractice (see Aranki v Goldman & Assoc., LLP, 34 AD3d 510). "While privity of contract is generally necessary to state a cause of action for attorney malpractice, liability is extended to third parties, not in privity, for harm caused by professional negligence in the presence of fraud, collusion, malicious acts or other special circumstances" (Good Old Days Tavern v Zwirn, 259 AD2d 300, 300; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595; Nelson v Roth, 69 AD3d 912, 913; Aranki v Goldman & Assoc., LLP, 34 AD3d at 511-512; Moran v Hurst, 32 AD3d 909, 910-911). Although the second amended complaint does not allege an attorney-client relationship between the plaintiff and the defendants, the allegations in the second amended complaint "fall within the narrow exception of fraud, collusion, malicious acts or other special circumstances under which a cause of action alleging attorney malpractice may be asserted absent a showing of actual or near-privity" (Aranki v Goldman & Assoc., LLP, 34 AD3d at 512 [internal quotation marks omitted]). Moreover, the documentary evidence does not establish, as a matter of law, a defense to the third cause of action. Thus, we modify the order appealed from accordingly. "
 

Attorney fee disputes often blossom into legal malpractice cases, although Stephan B. Gleich & Assoc. v Gritsipis ; 2011 NY Slip Op 05483 ; Decided on June 21, 2011 ; Appellate Division, Second Department is not one of these.  Nevertheless, it is one of the longest attorney fee disputes in memory. The case itself started in 1993 as the AD tells us:
 

"An affidavit of service reflects service upon the defendant on September 7, 1993, by delivery of a copy of the summons with notice to a person of suitable age and discretion named Evelyn Monterosa at the defendant's place of business.

A clerk's judgment was thereafter executed on February 7, 1994, for the requested sum of $66,875.41, plus statutory costs and disbursements in the sum of $370, for a total judgment in the sum of $67,245.41 (hereinafter the 1994 judgment).

The plaintiff commenced a second action against the defendant on March 17, 2009, by the filing of a summons and complaint in the Supreme Court, Nassau County, under Index No. 09-006753 (hereinafter the 2009 complaint). The plaintiff alleged that no portion of the 1994 judgment had been satisfied, that more than 10 years had passed since the judgment was docketed, and that the judgment should be renewed pursuant to CPLR 5014(1). The defendant answered the 2009 complaint, asserted affirmative defenses, and separately moved under the index number of the 1993 action, inter alia, to vacate the 1994 judgment.
 

Contrary to the defendant's contention, the plaintiff properly obtained jurisdiction over him under CPLR 308(2). The affidavit of the plaintiff's process server constitutes prima facie evidence of proper service (see Matter of Perskin v Bassaragh, 73 AD3d 1073; Prospect Park Mgt., LLC v Beatty, 73 AD3d 885; Pezolano v Incorporated City of Glen Cove, 71 AD3d 970, 971; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525; Jefferson v Netusil, 44 AD3d 621). The defendant's failure to recall the person of suitable age and discretion who was served, without specific facts of the identity of his employees, employment records, payroll records, or affidavits from others, fails to rebut the process server's affidavit (see Interlink Metals & Chems. v Kazdan, 222 AD2d 55, 56; see also Pezolano v Incorporated City of Glen Cove, 71 AD3d at 971; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327; Silverman v Deutsch, 283 AD2d 478, 478-479). Thus, there is an insufficient basis to vacate the 1994 judgment for lack of jurisdiction under CPLR 5015(a)(4).

Clerks' judgments may nevertheless be vacated pursuant to CPLR 5015(a)(1) where the [*3]defendant demonstrates both a reasonable excuse for the default and a potentially meritorious defense to the action (see Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673; see generally Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Gray v B. R. Trucking Co., 59 NY2d 649, 650; Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822; Zanani v Schvimmer, 75 AD3d 546, 547; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313). The defendant failed to establish a reasonable excuse for his default since the only excuse he proffered was that he was not served with process. Moreover, we agree with the Supreme Court that the defendant also failed to establish a potentially meritorious defense to the action. Contrary to the defendant's contention that the legal services were rendered solely to his corporation, the documentary evidence, including the invoices for legal fees incurred and the pleadings in the earlier landlord-tenant litigations, establish that the defendant was an individually named party in those actions who received individualized legal services. Other issues that the defendant raises as to the invoices themselves speak to the specific amount of damages, and not to liability or to his default in the 1993 action.

III. The Clerk's Judgment Under CPLR 3215(a) The defendant's argument that the clerk of the court lacked authority to enter a judgment is raised for the first time on appeal. However, where, as here, an argument presents an issue of law appearing on the face of the record which could not have been avoided if raised at the proper juncture, it may be considered by an appellate court (see Parry v Murphy, 79 AD3d 713; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d at 673; Chrostowski v Chow, 37 AD3d 638, 639; Beepat v James, 303 AD2d 345, 346; Hanna v Ford Motor Co., 252 AD2d 478). The nature of this appeal warrants the exercise of our discretion in reaching on its merits the issue of the propriety of the clerk's judgment. "

BLT reports that the Wilmer law firm may well have to pay $ 214 million in legal malrpactice settlement fees, all depending on a case in which they have no say. From the article:

"Wilmer Cutler Pickering Hale and Dorr is facing the prospect of making $214 million in payments to one of its clients, in what would be an unusually large settlement of a malpractice claim.

Whether Wilmer will be forced to make the payments is still up in the air, depending largely on the outcome of litigation and on legislation moving through Congress. William Perlstein, Wilmer’s co-managing partner, who signed a settlement in February outlining the possible payments to New Jersey-based pharmaceutical company The Medicines Co., said on Tuesday he’s confident it will prove unnecessary.

The amount of money at stake potentially puts the case among the largest public settlements for legal malpractice ever, people who work in the field say.

The malpractice claim has its origins a decade ago, when Wilmer was representing The Medicines Co. in its bid to extend the patent for Angiomax, an anti-blood-clotting drug. The U.S. Patent and Trademark Office ruled that Wilmer lawyers filed the extension application at least a day after a key deadline — a decision that threatened to cost the drug company five years of exclusive drug sales.

In a major win for Wilmer and The Medicines Co., a federal judge last year vacated the patent office’s decision and cleared the way for the patent extension to go forward. If nothing changes, Wilmer is not expected to have to pay the $214 million.

The issue is still alive, though, because one of the drug company’s competitors has appealed to the U.S. Court of Appeals for the Federal Circuit. The case is pending there. (The patent office decided not to appeal.)

The agreement Wilmer signed in February is a contingency in case the Federal Circuit reverses or there’s another unexpected development. So, if a generic version of Angiomax is sold in the United States before June 15, 2015 as a result of the deadline issue, the firm would owe $214 million, $99 million of which would be covered by the firm’s insurance."
 

Client hires attorney for divorce, and the attorney works through the end of the divorce. There are ancillary matters (QDRO) that follow, and more than three years later, client is sued over the late husband's life insurance policy.  She hires the same attorney, and is later sued for lega fees. She counterclaims for legal malpractice arsing from the divorce, not the insurance case.  Is the case late?

Supreme Court answers yes, in Ursprung v Verkowitz; 2011 NY Slip Op 31723(U); June 14, 2011
Supreme Court, Nassau County; and determines that there must be actual continuous representation, and not a general sense that the attorney is still representing client, albeit not in any actual litigation.  Her representation was litigative, not transactional.

:"Contrary to Ursprug's contentions, the doctrine of continuous representation is
inapplicable to toll the statute of limitations in the instant action as the matrimonial action during
which attorney Verkowitz allegedly committed the malpractice was concluded on February 27
2004, and Verkowitz's representation of the plaintiff for the matrimonial action ceased at that
time. The particular transaction which is the subject of this malpractice action had ended in
2004, even if one accepts that a general professional relationship continued. (See, Zaref v. Berk
& Michaels , 192 A.D.2d 346 595 N.Y.S.2d 772 (Ist Dept. 1993)). Furher, as the plaintiff
was no longer "acutely aware of such need for further representation on the specific subject
matter underlying the malpractice claim " the defendant' s representation on the matter had ceased
at that time. (Shumsky v. Eisenstein 96 N.Y 2d 164, 750 N.E.2d 67 (2001); Carnevali
Herman 293 AD.2d 698, 742 NYS. 2d 85 (2d Dept. 2002)). Attorney Verkowitz
representation of Ursprug in the subsequent insurance matter was pursuant to a separate and
subsequent retainer agreement, which was entered three years after the matrimonial action which was concluded on February 27 2004. As such, the within action for legal malpractice is bared
by the expiration of the statute of limitations. Even accepting plaintiffs arguments that attorney  Verkowitz s inquiries regarding Chrstopher Ursprug's QDRO filings on behalf of Ursprug are evidence of a continuation of the matrimonial matter, the administrative tasks related to the QDRO were completed on September 12 2006, when Verkowitz forwarded a copy of the August 18 2006 QDRO order to Ursprug. Accordingly, even accepting the later date of September 12, 2006 as the conclusion of Verkowitz s representation ofUrsprug for the matrimonial action, the within legal malpractice action, filed on January 24 2011 , is bared by the statute of limitations."

Manus v Flamm , 2011 NY Slip Op 31691(U); June 14, 2011; Supreme Court, New York County; Docket Number: 110026/2007; Judge: Debra A. James tells an interesting story of divorce, legal malpractice and itinerant jewelery.  Plaintiff is the divorced wife, who is owed $ 1 million in the divorce.  She borrows jewelery from the husband's safe deposit and ends up in a world of trouble.

"In the FM action, FM initially sought to recover- possession of certain jewelry that, it alleges, Manus pledged as collateral against a $400,000 loan made by FM to her in 1994. FM alleges t h a t , after retrieving the jewelry from a jeweler to whom Manus had consigned it for sale, Manus failed  to return it: to a safe deposit box maintained by her ex-husband, nonparty Allen Manus (deceased, November 2 0 0 3 ) , a founder of FM, in breach of the terms of the May 4, 1994 loan security agreement, as amended May 5, 1994. On September 28, 1999, Manus entered into a stipulation with FM, prepared by FM's counsel and signed by Elizabeth Manus, Allen Manus's wife and FM's sole officer. Pursuant to the stipulation, Manus was authorized to retain the jewelry f o r nine months in order to sell it, and repay the $400,000 loan. The stipulation also provides that Manus's cooperative apartment shares would be substituted for the jewelry as collateral under- a September 1999 stock pledge agreement . The ,st.stock:k pledge agreement identifies
Flamm as the escrow agent holding the stock certificates. Manus denies that she ever received $400,000 from FM, and contends that, therefore, the June 15, 1994 promissory note in
that amount bearing her signature is not enforceable.

With respect to the stipulation, Manus alleges that she signed it at Flamm' s insistence, and that Flamm refused to explain the terms, and their ramifications, to h e r . Flamm ' alleges that Manus signed solely at Allen Manus's urging, and without Flamm'a advice. Manus and Flamm both allege that Allen Manus agreed to arrange for FM to release Manus from the stipulation. Manus alleges that Allen Manus advised her to have her attorney, Flamm, contact FMIs attorneys to obtain.ain the
release. In November 2000, Flamm prepared a release and forwarded it to FM's attorneys. Flamm alleges that , during the ensuing negotiations regarding the release terms, FM's attorneys refused to permit FM t.o release Manus from liability because Allen Manus owed t h e m attorneys' fees. Flamm further alleges that Elizabeth Manus refused to sign any document,t releasing Manus from liability, and that he was advised that she was the only individual with the authority to bind FM to the release.

Flamm's own admissions regarding the underlying facts alleged in the complaint and the documentary evidence conclusively demonstrate that Flamm continuously represented
Manus with regard t o the FM action from October 1998 through January 2005."

While theft by an attorney may be many things, it is questionable whether it might be called legal malpractice.  In B & R Consol., L.L.C. v Zurich Am. Ins. Co. 2011 NY Slip Op 51142(U) ; Decided on June 22, 2011 ; Supreme Court, Nassau County ; DeStefano, J. we see an upside-down mirror image of the usual legal malpractice case.  Here plaintiff's attorneys are well known legal malpractice defense counsel, plaintiff in the underlying legal malpractice case is suing the malpractice insurer, and the argument is over whether the insurance policy covers the alleged acts.  Here, for the moment it does.
 

"In an action filed on November 6, 2008, encaptioned B & R Consolidated, L.L.C. v Frederic A. Powell, Esq. and Robin Powell, Index No. 020049/08 (the "underlying action"), B & R asserted, inter alia, causes of action in fraud, unjust enrichment, conversion, breach of contract, and breach of fiduciary duty based upon an admission by attorney Frederick A. Powell ("Powell") that he "stole four hundred and fifty thousand ($450,000.00) dollars of B & R's money from his escrow account for other personal projects'" and did this "without any authorization from B & R" (Ex. "1" to Plaintiff's Opposition). Specifically, it was alleged in the complaint that:

Unbeknownst to B & R, [Powell] received the money from the repayment of a mortgage owned by B & R in June of 2007. [Powell] neglected to inform B & R that the money had been received until September 2008, more than an entire year later! Instead, [Powell] made periodic payments to B & R under the guise of interest payments being made by a third party on the mortgage held by B & R

Accordingly, the Court finds unrebutted plaintiff's proof that Powell took possession of funds belonging to the plaintiff, hid that fact from it, and then lost or misappropriated those funds for his own use. This constitutes an established breach of fiduciary duty owed to B & R by Powell as its attorney. Further, damages resulting from that breach have been shown as a result of the [*4]misappropriation of the clients' funds, which is distinct from any claim for negligence or legal malpractice. Summary judgment therefore is granted to the plaintiff on its third and fifth causes of action, breach of "the fiduciary duty of care", and "of loyalty", as they most closely comport with the foregoing authority regarding breach of fiduciary duty generally. The Court notes that such a breach would also allow for a recovery for any attorney's fees that were improperly charged as being incident the to [sic] breach rendering the continued pursuit of the negligence and malpractice causes of action unnecessary. Summary judgment is therefore denied as to these claims. "

"The Insurer argues that liability in the underlying action was not based upon Powell's rendition of legal services but, rather, on his misappropriation of B & R's funds and, thus, the Insurer has no obligation to indemnify. In the underlying action, Justice Palmieri stated in his decision that "the amended complaint is framed in terms of negligence, malpractice, and breach of fiduciary duty to Powell. This in turn is premised on bad advice from Powell as attorney and a failure to keep B & R informed of the true status of its loan to Lyons" (Ex. "7" to Plaintiff's Opposition at p. 5). 

Under the circumstances, and considering that the causes of action asserting breach of fiduciary duty are based upon the same facts constituting the causes of action alleging negligence and legal malpractice, it cannot be said as a matter of law that Powell's conduct falls outside the scope of risk covered by the policy (Ex. "7" to Plaintiff's Opposition at p 8; see Ulico Casualty Co., v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]; Burkhart, Wexler & Hirschberg, LLP v Liberty Insurance Underwriters, Inc., 60 AD3d 884 [2d Dept 2009]).[FN3] "

In Crawford v Himmelstein ; 2011 NY Slip Op 31669(U); June 20, 2011; Supreme Court, New York County; Docket Number: 115432/10; Judge: Donna M. Mills we see a straightforward analysis of a typical legal malpractice case.  Client is being pursued by landlord to give up three apartments, on the basis of owner-personal use.  (Put aside why a rent stabilized tenant could have three apartments?).  Case is litigated, and plaintiff eventually settles for $ 300,000 and one year grace period.  At the end of the grace period, tenant does not want to move out, and eventually sues attorney for malpractice. Plaintiff loses.

"To prevail in a legal malpractice action, 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” (Volpe v Canfield, 237 AD2d 282,283  that such negligence was the proximate cause of their damages, and that, but for the attorney’s negligence, the plaintiff would have prevailed oh the underlying claim (see Rau v , Borenkoff, 262 AD2d 388.

Here, the plaintiff claims that Himmelstein failed to file a motion for summary judgment or proceed to trial on the issue of the owner landlord’s immigration status relating to the underlying holdover proceeding. In addition to the immigration issue, plaintiff claims there were a number of real estate irregularities surrounding the way the house was sold which was never explored sufficiently by Himmelstien. However, Himmelstein submitted documentary evidence establishing that between May 2004 and November 2007, the parties engaged in lengthy motion practice which involved significant discovery battles. It is quite apparent that Himmelstien was litigating vigorously on plaintiffs behalf before the parties decided to settle.  Plaintiff has failed to demonstrate a meritorious cause of action for legal malpractice (Tortorello v Carlin, 286 AD2d 628 [2001]), there being insufficient evidence that “but for” defendants’ alleged negligence in not filing a motion for summary judgment or going to trial in lieu of settling the underlying action, plaintiff would have achieved a more favorable result (Wexler v Shea & Gould, 1 1 AD2d 450 . The record establishes that the parties with the assistance of the court in the underlying action, voluntarily decided to settle the matter instead of proceeding to trial. Moreover, Himmelstein offers a reasonable strategy as to why they did not make a motion for summary judgment. Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby
exposing themselves to liability for malpractice (Dweck Law Firm v Mann, 283 AD2d 292,
293 [2001])."

Sometimes the critics are right.  Legal malpractice cases are sometimes simply a reflex and are brought because the attorney is the last person standing.  Carr v Hayes; 2011 NY Slip Op 31655(U); June 17, 2011; Supreme Court, New York County ;Docket Number: 104602-10;
Judge: Saliann Scarpulla appears to be such a case.

"Carr commenced this action by summons and complaint dated April 8,2010. In i is complaint, Cam alleges that his ex-wife, Clements; her attorney in the matrimonial action, who also represented him at the closing of the real estate transaction, Hayes; and his attorney in the matrimonial action, Regina L. Darby (“Darby”), colluded to commit fraud and converted his assets. Cam also alleges that Hayes and Darby breached their fiduciary duty to him and committed legal malpractice. In the matrimonial action Carr and Clements entered into a stipulation of settlement that was incorporated into the judgment of divorce. Pursuant to the settlement, Carr agreed to pay $25,000 of his wife’s legal fees as well as all of his own legal fees. These fees were to be paid from one of a few sources. One of the sources named was the proceeds of the sale of 65 Walker Avenue, Sag Harbor, NY 11963. The stipulation of settlement states that the fees “shall be paid to both lawyers prior to the distribution of any monies to the Husband and Wife.” In accordance with the stipulation of settlement, after the Sag Harbor property was sold, Hayes wrote checks to settle the fees of Darby and herself outstanding from the matrimonial action. Hayes disbursed the remainder of the sale proceeds to Carr and Clements

Carr has failed to allege any facts that could support a cause of action for fraud or aiding and abetting fraud. Carr has simply stated, without factual support, that Darby and Hayes have defrauded him. He repeatedly refers to the Closing Statement provided by Hayes as “fraudulent” and describes the copies of negotiated checks provided by Hayes as “fictitious.” However, at no point in his pleadings or in his affidavit in opposition to defendants’ motion to dismiss does Carr allege facts to show that these documents are forgeries or otherwise fiaudulent. Without some alleged facts or Circumstances to base his claims upon, Carr’s fraud claims must necessarily fail. Merely reciting the elements of fraud is not sufficient to plead fraud under CPLR 3016 ).

The short answer is No.  The longer answer, and an explanation is found in Jean-Baptiste v The Law Firm of Kennth B. Mock; 2011 NY Slip Op 31540(U) ;May 26, 2011; Sup Ct, Nassau County
Docket Number: 20409/10 ;Judge: Antonio I. Brandveen.

"[T]the Second Deparment holds: "(a) plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages. It need only plead allegations from which damages attributable to the defendant's malpractice might be reasonably inferred (see Kempfv Magida 37 AD3d 763 , 764 (2007); see also InKine Pharm. Co. v Coleman 305 AD2d 151 (2003); Fielding v Kupferman 65 AD3d 437 442 (2009); Rock City Sound, Inc. v. Bashian Farber, LLP 74 A.D.3d 1168, [2 Dept, 2010)). This Court viewed the complaint in the light most favorable to the
plaintiff, yet this plaintifffails to show the existence of an attorney-client relationship
between him and the defendant, and the alleged legal malpractice was not a proximate
cause of any damage to the plaintiff. The plaintiff here does not plead allegations from
which damages attributable to the defendant's malpractice might be reasonably inferred."

How many ways might a simple house sale contract go wrong?  Aromino v Van Tassel ;  2011 NY Slip Op 51058(U) ; Decided on June 6, 2011 ; Civil Court Of The City Of New York, Richmond County ; Straniere, J. points out a plethora.
 

Plaintiffs contract to buy a house, and give a down payment of $ 35,000.  They discover structural problems.  They hire an inspector.  Sellers did not agree, and send a "Time of the Essence letter."  Buyers resist and do not come to the closing.  Seller relents and sends a "cure letter."  The cure letter set November 8, 2006 as the closing date.  On November 6, sellers attorney wrote a letter saying that he was going to release the down payment on November 7, 2006 and mailed it by regular mail.  Of course the letter did not arrive until after November 8.

What was done wrong?  "This cure letter, issued six days after the alleged "time of the essence" closing was scheduled, gave the purchasers thirty-four days to appear for the closing. It also asserts a position which negates the intention of the "time of the essence" letter because it states: "If your client fail [sic] to cure said default, my clients [sic] intend to deem the contract canceled and retain as and for liquidated damages, all sums paid by Purchaser and will pursue other rights under the contract and law." Seller is withdrawing its previous declaration of the purchaser being in default and the contract breached, by stating that the client has not yet "deemed" that the contract has been canceled and seller only "intends" to cancel the contract. [*10]

Further negating the "time of the essence" is the fact that O'Sullivan sent the letter on October 5, 2006 to Strazzullo offering purchasers the opportunity to cure their default especially after having received a letter from Strazzullo dated September 18, 2006 rejecting the "time of the essence" closing and demanding a return of the deposit. Although this letter does not specifically state that the purchasers are canceling the contract, it makes an unequivocal demand for the return of the deposit. Based on this letter, seller could have claimed an anticipatory breach as of the date of receipt of the Strazzullo letter and sought to assert and enforce seller's contract rights at that point and in any case, after the "time of the essence" closing date. There was no need to grant the purchasers an opportunity to cure in view of the fact there does not appear to be any evidence that the purchasers were interested in performing the contract.

The final action negating the "time of the essence" demand, is the fact that O'Sullivan in the October 5, 2006 letter gave the purchasers until November 8, 2006 to cure, yet on November 7, 2006 O'Sullivan released the escrow deposit to the seller. This was one day prior to the cure date. Even if giving the purchasers a date by which to cure their default was not required by the contract, once seller unilaterally afforded the purchasers the opportunity to do so O'Sullivan was required to wait until after November 8, 2006 to release the money; assuming he had a right to do so. "

Based on the court's findings set forth above, O'Sullivan was not permitted to release the down payment to his client. Assuming however, that he either did properly make "time of the essence" and that he believed he was acting lawfully and in good faith, could O'Sullivan release the escrow? The answer is an unequivocal "NO."

First, paragraph 27 setting forth how the deposit would be treated states: "At Closing, the down payment shall be paid to Seller upon consummation of the closing...." The closing never took place. The contract, which was drafted by seller's attorney, could have provided for release of the deposit upon a default by either party to the non-defaulting party, yet it did not. Because the seller drafted the contract, it must be construed against the seller.

Second, for some totally incomprehensible reason, seller's attorney drafted paragraph 27 as if this were a contract subject to General Business Law Article 23-A, the statute commonly referred to as the Martin Act. As noted in the footnote in reference to that paragraph, there is no evidence that the property in question is subject to that law. In fact, paragraph 7 of the contract referring to the existence of a "home owners [sic] association" has been deleted from the agreement. Referance to the non-exisiting offering plan was not deleted from paragraphs 12 & 33. The only explanation would seem to be that seller's attorney either cut and pasted this contract from another one in his computer or he adopted a contract drafted by some other practitioner without fully comprehending the significance of the paragraph.

The above being said, seller's counsel voluntarily subjected himself to the requirements promulgated by the New York State Department of Law. These regulations are found in New York Code, Rules and Regulations (13 NYCRR §22.3). Prior to releasing any monies held in escrow, O'Sullivan had to comply with the procedure set forth in that regulation. The rules provide (13 NYCRR §22.3(k)(2)(vii)): "

The more important basis for purchasers seeking the refund of their deposit is the alleged structural defects discovered by Coull Building Inspections. This report is dated July 20, 2006, apparently after the parties executed the undated contract of sale. It should be noted that the contract did not give the purchasers a right to have a structural inspection nor did it make the agreement subject to a structural inspection. In fact, the common practice in Richmond County is for a potential purchaser to have a structural report prior to signing a contract in regard to the resale of a home. Although not prohibited, to seek one in the case of new construction is highly unusual. Had the purchasers been concerned about the structural integrity of the house, their counsel could have either negotiated having the structural inspection done before the contract was signed, or as a clause permitting cancellation of the contract after signing based on items in the structural report. Counsel for the purchasers did neither.

Before getting into an analysis of the Coull report, the court must note that as of December 31, 2005, six months before the undated contract was signed, the legislature passed legislation requiring that all home inspectors be licensed (Real Property Law Article 12-B, Home Inspection Professional Licensing). The report from William Coull fails to indicate that either he or the business was in fact properly licensed. No license number is disclosed any where in the document. In fact, disclosure of this information is required by the statute "on every home inspection report and in all advertising" (RPL §444-g). "
 

Judiciary Law 487 is an attorney related statute that derives from one of the oldest English laws, carried over to New York statutes.  It is over 700 years old, in its earliest version.  inBaker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuworth, LLC v Comprehensive
 Mental Assessment & Medical Care, P.C.; 2011 NY Slip Op 31385(U) ;May 10, 2011
Sup Ct, Nassau County ;Docket Number: 016008/2007; Judge: Ira B. . Warshawsky defines the elements of JL 487 and then finds that a cause of action is stated.

Judiciary Law 487(1) permits injured third parties to recover treble damages when an attorney engages in ' any deceit or collusion or consents to any deceit or collusion, with intent to deceive the court or any par. ' " The plaintiffs must show evidence of either intent by the defendants to deceive or a chronic and extreme pattern of legal delinquency which proximately caused their damages. Connell v Kerson, 291 AD2d 386 (2 Dept. 2002). "Moreover, the alleged deceit when not directed at a court must occur during a pending judicial proceeding (citations omitted). Elmowitz v McCormick Dunne & Foley, 30 Misc 3d 1209 (A) (Supreme Court New York County 2010), citing Jacobs v Kay, 50 AD3d 526, 527 (1 Dept. 2008); Costalas v Amalfitano, 305 AD2d 202 203-204 (1 st Dept. 2003).

Contrary to Barshay s allegations, the defendants have adequately stated a claim against him to recover under Judiciary Law 487. The defendants have alleged that "(t)he partners failed to provide business records and accounting(s); the partners failed to hand over funds collected on settled cases; (plaintiffs) failed to make timely court and arbitration filings.Checks payable to defendants (were placed) in partner accounts; settlement checks issued by insurance carriers. . . were deposited into Partnership s accounts; plaintiffs compromised defendants ' causes of actions , particular in a bulk settlement with AIU Insurance Company, and a bulk settlement with GEICO Insurance Company;  (P)artners took possession of the settlement funds from both Bulk
Settlements;" and that " (P)artners failed to inform defendants of the receipt of funds resulting from both Bulk Settlements. . . (and) deposited settlement funds from Bulk Settlements into (plaintiffs) bank accounts." The defendants have alleged that Sanders & Grossman, P. , Baker Barshay, LLP and the Partnership as well as all of the additional defendants improperly represented to adversaries as well as the courts in the course of judicial proceedings related to their no-fault claims that they represented them and that they had the authority to settle their claims when they did not and that they settled those claims at a significant discounted rate causing them substantial damage. A claim pursuant to Judiciary Law 9 487 has clearly been stated."

In this case, Plaintiff made such a persuasive argument that Supreme Court granted summary judgment and the AD affirmed.  Failing to tell a client about title problems is legal malpractice, says the AD in Ehrenhalt v Kinder ; 2011 NY Slip Op 05194 ; Decided on June 16, 2011 ; Appellate Division, First Department . 
 

Put simply:  "Defendant's failure to inform plaintiff of the defects in title to the apartment when he learned of them was a failure "to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession," and this failure resulted in actual damages to plaintiff (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]).

Defendant's contention that plaintiff's motion is premature because more discovery is required is unsupported by any evidence suggesting that additional discovery will lead to further relevant evidence (see CPLR 3212[f]; Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007]; Duane Morris LLP v Astor Holdings Inc., 61 AD3d 418 [2009]). "

T&V Constr., Inc. v Margolin; 2011 NY Slip Op 31598(U); June 3, 2011; Sup Ct, Nassau County
Docket Number: 0834/08 ;Judge: Anthony L. Parga demonstrates that no good deed goes unpunished.  In short, after getting divorced, plaintiff is told that his ex can't pay the mortgage on the old marital home.  He has his own company purchase the mortgage and trades the mortgage payments for maintenance.  Later, ex wants to sell the house, so he buys it from her.  His attorney is tasked with the transaction, and especially with filing the deed.

The deed is not filed, and several years later ex sells the house to a third-party.  Now litigation begins, and the legal malpractice case commences.  "Plaintiffs argue in their opposition that "
but for" the defendants deed in lieu '  or take other steps to protect plaintiffs ' rights , Garcia could not have committed fraud in transferring the property to another. Plaintiffs also contend that Garcia fraud in reselling the premises was a foreseeable possibility and that Garcia s intentional break the causal nexus where the act could have been foreseen. (.f)ee s actions do not
of City of New York Bell v. Board of Educations 90 N.Y.2d 944 (1997))

Plaintiff argues, contrary to the defendants, that this is not a circumstance where subsequent counsel had a sufficient opportunity to protect plaintiffs ' rights or correct the prior counsel' s errors, as the harm was already done at the time new counsel was retained and the new counsel could not prevent the injury itself. Lastly, plaintiffs submit that any judgment collected against Garcia would be uncollectible as she has  viable assets that are free from liens and/or judgments.

Defendants' motion for summary judgment against T & V is denied as there are several questions of fact regarding whether the defendants' negligence was a proximate cause of plaintiff T & V's alleged damages.

Scott v Fields ; 2011 NY Slip Op 05043 ; Decided on June 7, 2011 ; Appellate Division, Second Department  is not the first mortgage-legal malpractice case, but it appears to be the most extensively written 2d department opinion in one.  Here, as in most mortgage fraud cases, there is a straw buyer, the belief that owner is getting their house saved for them, and disaster.  Plaintiff brought the case a few months too late, and legal malpractice is dismissed on the statute of limitations.
"The plaintiff alleges that the defendants conspired to defraud her of her real property by causing her to believe that she was refinancing the mortgage on her home when, in actuality, she was conveying her property to the defendant Sherran Fields. In the complaint filed on March 25, 2009, the plaintiff asserted causes of action sounding in conversion, conspiracy, fraud, implied contract, breach of fiduciary duty, and malpractice. The Supreme Court granted those branches of the separate motions of the defendants Kecia J. Weaver and Kecia J. Weaver, P.C. (hereinafter together Weaver), and the defendants Stella Azie and Stella Azie, P.C. (hereinafter together Azie), which were to dismiss the complaint insofar as asserted against each of them pursuant to CPLR 3211. The Supreme Court also denied that branch of the plaintiff's motion which was pursuant to CPLR 3025(b) for leave to amend the complaint. We affirm the order insofar as appealed from."

The remaining two causes of action asserted against Weaver, alleging breach of fiduciary duty and professional malpractice, are time-barred. The statute of limitations for a breach of fiduciary duty cause of action depends on the substantive remedy which the plaintiff seeks (see Loengard v Santa Fe Indus., 70 NY2d 262). Where the relief sought is equitable in nature, the statute of limitations is six years, and where the relief sought is purely monetary, the statute of limitations is three years (see Monaghan v Ford Motor Co., 71 AD3d 848). Here, the cause of action against Weaver alleging breach of fiduciary duty seeks purely monetary damages, and, under the circumstances, a three-year statute of limitations applies. The claimed breach occurred during the closing on November 25, 2005. As such, the cause of action to recover damages for breach of fiduciary duty is time-barred insofar as asserted against Weaver (see CPLR 3211[a][5]). Similarly, the cause of action to recover damages for professional malpractice were also properly dismissed insofar as asserted against Weaver. The statute of limitations for a legal malpractice claim is three years (see CPLR 214[6]; Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749). The alleged legal malpractice occurred on November 25, 2005, and, as such, the claim of professional negligence, i.e., legal malpractice, is time-barred (see CPLR 3211[a][5]). Contrary to the plaintiff's contention, the continuous representation doctrine is inapplicable. The complaint did not allege there was a mutual understanding that Weaver's legal representation of the plaintiff would continue after the closing (cf. Lytell v Lorusso, 74 AD3d 905). "

Justice Judith Gische writes clear and unambiguous decisions, and often, one side or the other gets hurt. Schindler v Lester Schwab Katz & Dwyer, LLP ; 2011 NY Slip Op 31519(U); June 6, 2011 ;Supreme Court, New York County; Docket Number: 115967/2010; Judge: Judith J. Gische is one example.

Plaintiff was sued by law firm 1 for fees.  He retained defendants Lester Schwab to defend him in the attorney fee issue.  This is an unusual choice for defense of a legal fee case, since it is likely that the Lester Schwab bills to defend an attorney fee case will equal the fees being sought in the case.  Nevertheless, the defense ensued and the case went bad.  Eventually, Lester Schwab also asked to be relieved, and cited fee issues.  A default judgment was later entered against plaintiff for discovery failures. Was Lester Schwab negligent in the way it defended plaintiff?

"Here, the issue in dispute is the defendants’ alleged legal malpractice. The doctrine of collateral estoppel is a flexible doctrine grounded in the facts and realities of a particular litigation which should not be rigidly or mechanically applied since it is, at its core, an equitable doctrine reflecting general concepts of fairness (Buechel v. Bain, 97 N.Y.2d at 303). Applying this legal principle, it is readily apparent that the issue of whether Lester Schwab capably represented Schindler in the legal fees action was decided, not only in Judge Kornreich’s decision granting Lester Schwab’s motion and in the decision granting Fish & Richardson’s motion to strike Schindler’s answer and
allowing it to enter a default judgment against him, but also addressed in the decision of Judge Richter rendered on appeal. The decisions by Judge Kornreich were before the Appellate Division when Schindler appealed and it is clear from Judge Richter’s  decision that the Appellate Division rejected all of Schindler’s explanations and defenses for why he failed to provide discovery.
In any event, even if the court were persuaded that Schindler’s claims are not collaterally estopped by the events that preceded this action, based on this record, plaintiffs claims are entirely too speculative to support a recovery against the defendants, affording the plaintiff the benefit of every possible inference (Lombardi v. Giannattasio, 192 A.D.2d 512 [2nd Dept.,1993]). Although Schindler has the right to rest on his complaint in opposing the motion to dismiss, he has not provided a sworn affidavit in support of his cross motion explaining why he did not comply with Judge Kornreich’s discovery orders once he obtained new counsel. His failure to make
amends belies any claim that Schindler “misunderstood” the proceedings against him or
was mislead by counsel about what his discovery responsibilities were. As for Schindler’s claims against Attorney Murphy individually, they are entirely without any factual basis. Attorney Murphy provided the November 26, 2008 affidavit because he was ordered to by Judge Kornreich pursuant to her order of November 6, 2008. The order was issued in connection with Fish & Richardson’s motion for leave to serve a subpoena on Schindler. She ordered that Fish & Richardson “seek and obtain an affidavit from someone with knowledge from plaintiffs prior firm Lester Schwab,
(Jonathan Murphy), as to whether a copy of my decision relieving them as counsel was
served upon defendant and when.” Thus, Attorney Murphy’s affidavit was little more than an affidavit of service, not the destructive document that Schindler portrays it to be.

Defendants' motion for the imposition of sanctions pursuant to Part 130-1 .l[c] furnished Schindler and his attorneys with adequate notice that such relief would be considered and renders a formal hearing unnecessary (Minister, Elders and Deacons of Reformed Protestant Dutch Church of City of New York v. 198 Broadway, Inc., 76 N.Y.2d 41 1 [1990; Dubai Bank Ltd v. Ayyub 187 AD2d 373 [1st Dept 19921). In deciding the what sanction should be imposed, the court has considered the time and attention this matter has involved and the severity (frivolity) of the claim made against
defendants. The court orders that plaintiff Schindler and his attorneys, the firm of Danzig, Fishman & Decea, pay the sum of $5,000 as costs to Lester Schwab and Jonathan A. Murphy, Esq. The Clerk shall enter judgment against Schindler and his attorneys, jointly and severally, in the manner provided in the decretal section appearing directly below."

When may a legal malpractice litigant obtain prejudgment interest (interest from the date of malpractice to present)?  When the malpractice arises from the loss of a cause of action.  In DiTONDO v Meagher ; 2011 NY Slip Op 04805 ; Decided on June 9, 2011 ; Appellate Division, Third Department  the third department enunciated two principals.  The first is that when a contract cause of action arises from the same facts and depends on the same damages as the tort cause of action, it is redundant.
 

When damages arise from a lost cause of action, prejudgment interest will apply.

 "Where an individual claim of breach of contract arises out of the same facts as an asserted legal malpractice cause of action and does not allege distinct damages, the breach of contract claim is duplicative of the malpractice claim (see Turner v Irving Finkelstein & [*2]Meirowitz, LLP, 61 AD3d 849, 850 [2009]; Garten v Shearman & Sterling LLP, 52 AD3d 207, 207-208 [2008]; Peak v Bartlett, Pontiff, Stewart & Rhodes, P.C., 28 AD3d 1028, 1031 [2006]; see also 76 NY Jur 2d, Malpractice § 37). Therefore, we agree with Supreme Court that plaintiffs' proposed amendment to the complaint, asserting a breach of contract cause of action based upon the same facts as the legal malpractice claim, is redundant and their motion was appropriately denied.
However, "'CPLR 5001 operates to permit an award of prejudgment interest from the date of the accrual of the malpractice action in actions seeking damages for attorney malpractice'" (Barnett v Schwartz, 47 AD3d 197, 208 [2007], quoting Horstmann v Nicholas J. Grasso, P.C., 210 AD2d 671, 673 [1994]; see Mizuno v Fischoff & Assoc., 82 AD3d 849, 850 [2011]; Leach v Bailly, 57 AD3d 1286, 1289 [2008]; but see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 444 n 3 [2007]). Moreover, as here, "[w]here the injury suffered [as a result of legal malpractice] is the loss of a cause of action, the measure of damages is generally the value of the claim lost," whether the malpractice claim sounds in negligence or in breach of contract (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 [1990]). Thus, contrary to defendants' contentions, Supreme Court erred by dismissing plaintiffs' claim for preverdict interest. "

Reported on the front page of the NY Law Journal today is a $ 5 million dollar legal malpractice verdict and judgment that could swell to $ 10 million after interest.  in Friedman v. Boros, Justice Jaffe determined that the jury verdict will stand, and that pre-judgment interest in this commercial legal malpractice case commenced in 2000.  The case turned on collateral estoppel and arbitration.

"The court rejected defendants' argument based on State Farm Ins. Co. v Smith, 277 AD2d 390 (2d Dept, 2000) and Kerins v. Prudental Prop. & Cas., 185 AD2d 403 (3d Dept 1992), and concluded that if plaintiff and Katz had entered into a limiting agreement, Mahoney Cohen would likely have not prevailed in asserting collateral estoppel as a defense in plaintiff‘f s action against it.
By decision and order dated April 26, 2005, the Appellate Division, First Department,
affirmed the September 2004 decision, finding that defendants had not “established as a matter of‘
law, that even if plaintiff and Katz had entered into an agreement limiting the collateral estoppel
effect of the arbitration award, the Mahoney Cohen lawsuit would nonetheless have been
dismissed on collateral estoppel grounds.” (17 AD3d 275, 276). ‘I’he If the Court, citing Smith, also
observed. that “in circumstances involving arbitration, the parties themselves can formulate their
own contractual restrictions on the carry-over estopple effect.” (Id.).

Defendant was found liable for both legal malpractice and accouting malpractice in a mid 7 figure judgment.

Judgment is the shorthand for the principal in legal malpractice that an attorney may not be held liable for legal malpractice solely upon an act or decision which is said to be the product of a question of judgment.  Selection of experts, selection of witnesses, which questions are put to a witness, and many other issues can be questions of judgment.  Here, in U.S. Bank National Association, as Trustee for asset Backed Pass through certificates, series 2006-HE1, Plaintiffs v. Alan C. Stein, Esq., Gastwirth, Mirsky & Stein, L.L.P., Law office of Alan C. Stein, P.C., Robert M. Steinert and Chicago Title Insurance Company, Defendants, 016919/08 we see the application of this principal.

"In an action to recover damages 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 N.Y.3d 438, 442 (2007), quoting McCoy v. Feinman, 99 N.Y.2d 295, 301 302 (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 v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442. Expert testimony is normally needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, "unless the ordinary experience of the fact finder provides sufficient basis for judging the adequacy of the professional service, or the attorney's conduct falls below any standard of due care". Greene v. Payne, Wood & Littlejohn, 197 A.D.2d 664, 666 (2d Dept. 1993).

An honest error of judgment or the "selection of one among several reasonable courses of action does not constitute malpractice". Rosner v. Paley, 65 N.Y.2d 736, 738 (1985), nor is the attorney "held to the rule of infallibility" or "liable for an honest mistake of judgment where the proper course is open to reasonable doubt". Grago v. Robertson, 49 A.D.2d 645, 646 (3d Dept 1975). Absent "reasonable" courses of conduct found as a matter of law, a determination that a course of conduct constitutes malpractice requires findings of fact. Grago v. Robertson, 49 A.D.2d 645, 646 (3d Dept. 1975).

As succinctly stated by the Court of Appeals, the relevant question on the viability of the contribution claim asserted herein is not whether the Baum Firm owed a duty to Stein, "but whether each owed a duty to plaintiff and whether, by breaching their respective duties, they contributed to her ultimate injuries…" Schauer v. Joyce, 54 N.Y.2d 1, 6 (1981). There are potentially two tortfeasors here. Stein may be found negligent in failing to have properly recorded the US Bank Mortgage and the Baum Firm may likewise be found negligent in failing to have secured an equitable lien which would have minimized US Bank's damages. Accordingly, there are issues of fact with respect to whether Stein and the Baum Firm will be liable for legal malpractice. Under the circumstances of this case, neither party is entitled to summary judgment."

Legal malpractice litigation is unique.  While the simple fact is that this branch of the law is written by attorneys, is utilized to litigate against attorneys, is judged upon by attorneys, the more complex story is that there are a number of unique rules.  One is that a criminal defendant may not sue his attorney absent "actual innocence."  There are no lawsuits for bad advice which leads to a conviction.

  Sgambelluri v Ironman ; 2010 NY Slip Op 08555 ;Decided on November 16, 2010 ;Appellate Division, Second Department sums this rule up nicely: "To succeed on a "cause of action for legal malpractice arising from negligent representation in a criminal proceeding, [the] plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense" (Carmel v Lunney, 70 NY2d 169, 173; see Britt v Legal Aid Socy., 95 NY2d 443, 448; Daly v Peace, 54 AD3d 801, 802). "A plea of guilty bars recovery for legal malpractice, [r]egardless of the plaintiff's subjective reasons for pleading guilty'" (Casement v O'Neill, 28 AD3d 508, [*2]509, quoting Kaplan v Sachs, 224 AD2d 666, 667). "

We looked at the underlying decisions in this case, and are still scratching our figurative head here.  in Lusk v Weinstein , 2011 NY Slip Op 04742 , Decided on June 7, 2011 , Appellate Division, First Department we see the AD citing an obviously correct principal of law: "a charging lien entered in the underlying action against plaintiff barred her from thereafter asserting a claim for legal malpractice (see Judiciary Law § 475; Wallach v Unger & Stutman, LLP, 48 AD3d 360 [2008])."
 

But, in the underlying case, after a charging lien was entered, the parties agreed and "entered into a stipulation with Parker to resolve the parties' fee dispute without prejudice to any other claims either party might assert against the other in other actions, e.g., Parker's res judicata defense here."
 

Why, then, was defendant permitted to utilize a res judicata defense?  Maybe our readers could explain it to us?

Empire Purveyors, Inc. v Brief Justice Carmen & Kleiman, LLP; 2011 NY Slip Op 31420(U)
May 31, 2011; Sup Ct, NY County; Docket Number: 110909/08; Judge: Jane S. Solomon presents a horrifying view of how clients sometimes fare at the hands of attorneys, especially attorneys who move from firm to firm.  From the decision:

"Cook admitted the following at his deposition. On or about October 3, 2003, Empire retained the Firm to assist it in recovering the balance allegedly due on two promissory notes signed by Eileen Weinberg, the defendant in the underlying case. The notes guaranteed repayment of two loans, one in the amount of $40,000, and the other in the amount of $80,000, t h a t the late Mr. P i n t o had extended to Ms. Weinberg. The matter was assigned to Cook, who at that time was an associate at the Firm. In approximately November 2005, Cook left the Firm and joined Windels Marx. From some time in October 2003 through October 2005, Cook falsely, and repeatedly, represented to plaintiffs that he had commenced an action and had obtained a judgment
against Ms. Weinberg, and that he was engaged in discovery and enforcement proceedings to collect on that judgment. So as to provide "corroborative detail intended to give artistic
verisimilitude" to his fabrication (Gilbert and Sullivan, The Mikado, Act 2), Cook presented the Pintos with a purported subpoena duces tecum to take the deposition of Ms. Weinberg, as a
judgment debtor, as well as a notice of motion seeking sanctions for contempt, and other fake documents. In fact, Cook had lost the promissory notes signed by Ms. Weinberg, which plaintiffs had given to the Firm, and he had not commenced any action on behalf of Empi-re. Indeed, he did not even purchase an index number. He now seeks to escape liability f o r his negligence, and for his lies, by arguing that: (i) the plaintiffs other than Empire have no claim; (11) plaintiffs suffered no damages; (iii) plaintiffs' successor counsel had sufficient opportunity to protect their rights; and (iv) plaintiffs' claims are barred by collateral estoppel and by judicial estoppel."

Defendant loses summary judgment motion and the case continues with some of the plaintiffs.

We commonly get two types of fraud letters, and the come all the time.  One recent type is the "collaborative divorce" letter in which an offshore spouse needs held collecting a large equitable distribution check from the US spouse.  Another type is the offshore large corporation that needs help collecting a debt from a US debtor. 

When this law firm fell victim to the second of these frauds its legal malpractice carrier was asked to defend and indemnify against the bank.  Supreme Court found no coverage, but the AD reversed.

Lombardi, Walsh, Wakeman, Harrison, Amodeo & Davenport, P.C. v American Guar. & Liab. Ins. Co. ,  2011 NY Slip Op 04589 ,  Decided on June 2, 2011 ; Appellate Division, Third Department .  "Plaintiff, a law firm, was contacted via e-mail by an individual purporting to be the chief executive officer of a Taiwanese corporation seeking legal assistance in collecting debts in North America. After the individual sent plaintiff a signed retainer agreement, plaintiff received a $384,700 check from a purported debtor of the corporation. Plaintiff opened an account at Berkshire Bank and deposited the check. At the request of the purported chief executive officer, plaintiff instructed Berkshire Bank to wire the value of the check, minus a legal fee for plaintiff, in two transfers to a third party in South Korea, who was allegedly a supplier of the Taiwanese corporation. After the funds were transferred, Berkshire Bank notified plaintiff that the check was counterfeit and plaintiff's account [*2]was overdrawn."
 

"Plaintiff commenced this action seeking, among other things, declarations that defendant was required to defend and indemnify it. Defendant moved for summary judgment. Plaintiff cross-moved for summary judgment or, in the alternative, an order compelling defendant to comply with its disclosure demands. Supreme Court denied plaintiff's cross motion, granted defendant's motion and entered a judgment declaring that defendant was not required to defend or indemnify plaintiff in the Berkshire Bank action. Plaintiff appeals.

An insurer has the duty to defend an insured "whenever the allegations within the four corners of the underlying complaint potentially give rise to a covered claim, or where the insurer 'has actual knowledge of facts establishing a reasonable possibility of coverage'" (Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175 [1997], quoting Fitzpatrick v American Honda Motor Co., 78 NY2d 61, 67 [1991]). The insurer's duty to defend, which is broader than the duty to indemnify, exists regardless of the merit of the underlying claim (see Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006]). To avoid defending an action, the insurer bears the burden of showing that the claim is not even potentially covered (see United States Fid. & Guar. Co. v U.S. Underwriters Ins. Co., 194 AD2d 1028, 1028-1029 [1993]).

Berkshire Bank's complaint alleged that plaintiff, as a law firm, opened a bank account, deposited a check in that account, ordered wire transfers from the account and caused an overdraft when the check was determined to be counterfeit. The complaint included causes of action for breach of the account agreement and violations of the Uniform Commercial Code. The insurance policy issued by defendant provided coverage for any claim "based on an act or omission in [plaintiff's] rendering or failing to render Legal Services for others." "Legal Services" is defined by the policy as "those services performed by an Insured as a licensed lawyer in good standing . . . or in any other fiduciary capacity but only where the act or omission was in the rendition of services ordinarily performed as a lawyer." The terms of this policy encompass more than what would traditionally be considered "legal [*3]malpractice" (see United States Fid. & Guar. Co. v U.S. Underwriters Ins. Co., 194 AD2d at 1029). "

"Because defendant did not meet its burden on the motion, plaintiff was entitled to a declaration that defendant had a duty to defend plaintiff in the Berkshire Bank action. Due to the confidential settlement of that action, we are unable to determine whether defendant was obligated to indemnify plaintiff. Accordingly, we remit for further proceedings (see Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419, 425 [1985]). "

Truebright Co., Ltd. v Lester ; 2011 NY Slip Op 04235 ; Decided on May 17, 2011  ;Appellate Division, Second Department is yet another example of a lost legal malpractice case, but not based upon the innocence or non-departure of the attorney.  In fact, just as in a recent case dismissed because the statute of limitations had passed on a case the attorney failed to file, here, there was a lack of capacity to sue.  Was it a bankruptcy filing that killed the capacity?  Was it a sale of the business to another that killed the capacity?  We do not know.
 

What we do know is:

"Under the circumstances, the Supreme Court did not improvidently exercise its discretion when it, in effect, granted the defendant's motion for leave to amend his answer, as the proposed amendment was neither palpably insufficient nor patently devoid of merit, and there was no evidence that it would prejudice or surprise the plaintiffs (see CPLR 3025 [b]; Matter of Roberts v Borg, 35 AD3d 617, 618; Public Adm'r of Kings County v Hossain Constr. Corp., 27 AD3d 714, 716). To the extent that the plaintiffs "wish[ ] to test the merits of the proposed added . . . defense, [they] may . . . move for summary judgment upon a proper showing" (Lucido v Mancuso, 49 AD3d 220, 229). "

We often ask whether the law of legal malpractice is different from the rest of the negligence world?  Why do attorneys get a second chance, in which judges ponder whether they could have won the case had they not made mistakes?

In Dempster v Liotti ; 2011 NY Slip Op 04408 ; Decided on May 24, 2011 ; Appellate Division, Second Department ; Belen, J. we see a prime example.  Judge Belen himself framed the issue:

"We are asked to consider whether an attorney who failed to oppose a motion to dismiss the complaint in an action underlying a legal malpractice action, and thereafter failed to file a timely notice of appeal from the order that granted the motion to dismiss, is entitled, under the facts of this case, to summary judgment dismissing the legal malpractice cause of action on the ground that such negligence did not proximately cause the dismissal of the underlying action. Here, we conclude that, since the underlying action was time-barred as a matter of law, the attorney's negligence, although clearly inexcusable, was not a proximate cause of the plaintiff's alleged injuries, and accordingly this malpractice action must be dismissed.

To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession," and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages (Leder v Spiegel, 9 NY3d 836, 837, cert denied sub nom. Spiegel v Rowland, 552 US 1257; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). As to the first prong, "[a]n attorney may be liable for ignorance of the rules of practice, for failure to comply with conditions precedent to suit, for neglect to prosecute or defend an action, or for failure to conduct adequate legal research" (Conklin v Owen, 72 AD3d 1006, 1007). However, even if a plaintiff establishes the first prong, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney's negligence (see Hamoudeh v Mandel, 62 AD3d 948, 949; McCluskey v Gabor & Gabor, 61 AD3d 646, 648; Peak v Bartlett, Pontiff, Stewart & Rhodes, P.C., 28 AD3d 1028, 1030-31; see also Brodeur v Hayes, 18 AD3d 979; Raphael v Clune, White & Nelson, 201 AD2d 549, 550). Further, as to the second prong, the plaintiff must plead and prove actual, ascertainable damages as a result of an attorney's negligence (see Barnett v Schwartz, 47 AD3d 197, 211). "[M]ere speculation about a loss resulting from an attorney's alleged omission is insufficient to sustain a prima facie case of legal malpractice" (Siciliano v Forchelli & Forchelli, 17 AD3d 343, 345; see Dupree v Voorhees, 68 AD3d 810, 812-813; Plymouth Org., Inc. v Silverman, Collura & Chernis, P.C., 21 AD3d 464; Giambrone v Bank of N.Y., 253 AD2d 786).

In the instant action, the plaintiff alleges that Liotti failed to exercise the ordinary skill and knowledge commonly possessed by a member of the legal profession when he failed to file timely opposition papers in response to the RICO defendants' motion to dismiss her amended complaint in the RICO action, and when he failed to timely appeal from the District Court's subsequent order granting such motion. Liotti does not contest these allegations, and we conclude they are factually substantiated by the record.
 

Here, Liotti's inexcusable failure to file timely opposition papers to the RICO defendants' motion to dismiss the amended complaint and to file a timely notice of appeal from the District Court's order granting such motion, clearly falls below the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Conklin v Owen, 72 AD3d at 1007; McCoy v Tepper, 261 AD2d 592, 593). However, as previously discussed, despite such negligence, Liotti is entitled to summary judgment inasmuch as the plaintiff's civil RICO claim was time-barred as a matter of law. Consequently, Liotti has established that the plaintiff is unable to prove that she would have prevailed in the RICO action but for his negligence. In opposition, the plaintiff failed to raise a triable issue of fact (see Hamoudeh v Mandel, 62 AD3d at 949).

Plaintiff and another get together to form a corporation and buy a 44 condo short stay building in Manhattan.  It's a multi-million dollar deal, and the closing takes place with no attorney present for plaintiff.  Later, plaintiff sells a different condo for $ 1.6 million, this time with an attorney present.  The Chesterfield, (the short-stay condos) goes sour, and legal malpractice ensues.

"The parties held the closing on September 5, 2000 at North ork Bank on Long Island (the "closing"), Ito, Ishino, Ito's son, Suzuki, and Rich attended; Roshco was not present. Suzuki
retained Rich to represent Keystone at the closing. In a November 13, 2006 decision/order, Supreme Court (Justice Marylin G. Diamond) dismissed Ito's individual and derivative claims asserted against Kudman Trachten in the Third Amended Complaint. I t o appealed, and the First Department affirmed, but granted plaintiff leave to file a fourth amended complaint on the limited claim that Kudman Trachten vicariously aided and abetted a breach of fiduciary duty. In August 2009, Ito settled with defendants Sam Suzuki, Katsuko Suzuki, Nomara Suzuki Properties, Ltd., Suzuki Associates, Ltd., Manshion Joho Center I n c . , American Hotel Group, Inc. d/b/a American Hospitality Group, Keystone International, LLC, The Corcoran Funding Group and Suzuki Capital
Funding, Ltd. (collectively referred to as the "Suzuki Defendants") recovering in excess of $1.6 million.'

Thus, to recover, plaintiff must demonstrate that: (1) the attorney was negligent; (2) the attorney's
negligence was the proximate cause of the sustained loss; and proof of actual damages (L).
Here, even if Ito were to establish defendants were negligent, if Ito cannot raise a factual issue as to whether defendants' negligence was a proximate cause of the alleged sustained damages, then the legal malpractice should be dismissed (Scbwartz v. Olshan Gundman F rome 302 AD2d 193, 198 [lst Dept 2003). Conclusory allegations are insufficient (a)Hav.ing said that, proximate cause is demonstrated by showing "but for" an attorney's negligence,  plaintiff would have prevailed in the matter or would not have sustained damages (id).

Although Roshco knew Ito was Japanese, and spoke and understood little English, her language barrier argument is not sufficient to raise a triable issue of fact. To begin, Ito has engaged in p r i o r business transactions and has also previously partnered with Suzuki (Kudman Trachten Moving Papers, Suzuki Aff., p. 2). Indeed, the majority of communications, including Index No. 124399/02
requests to sign important documents were not between the party's at'torneys, but rather  conducted between Ito and Suzuki, with Ishino or Katsuko's involvement. Specifically, Ishino said he communicated with Suzuki directly by telephone, e-mail, and facsimile regarding Chesterfield matters, and that Ito signed documents without seeking Roshco's advice. In fact, Roshco did
not receive t h e March 2000 Contract which It0 alleges altered the Chesterfield price f r o m $9.5 million to $8.6 million. Nor did Roshco receive the operating agreement for review and comment.
Although at no time did Roshco reach out to I t o to ascertain the transaction's status, Ito, as Keystone's majority member, did not attempt to reach out to Roshco either."

"Terminated with extreme prejudice" was a euphamism in the older spy novels.  In this legal malpractice case, witholding service until after the death of a defendant-attorney results in dismissal and termination of the case.

Postawa v David ;  2011 NY Slip Op 50902(U) ;  Decided on May 20, 2011 ;  Supreme Court, Queens County  is the story of immigation legal malpractice.  "The plaintiff Krzysztof Postawa ("Postawa") contends that he was a client of suspended attorney Earl Seth David ("David"). David was suspended from the practice of law by the States of New York (3 AD3d 174 [1st Dept. 2004] [suspension of 15 months, citing numerous extenuating circumstances]) and New Jersey (181 NJ 326, 857 A2d 648 [2004] [reciprocal discipline of 15-month suspension], and later reinstatement, 186 NJ 459, 896 A2d 472 [2006]). A review of the List of Disciplined Practitioners of the United States Department of Justice's Executive Office for Immigration Review further reflects that David was suspended from the practice of immigration cases for a period of 15 months effective July 9, 2004. [*2]

Plaintiff Postawa claims that David mishandled his case. Making matters worse, Postawa contends that his alleged representation by David occurred during the period of his suspension from the practice of law. Postawa contends that David accomplished his representation through the aid and subterfuge of Ava Norris , a non-lawyer who died on July 4, 2010, and her company, TANC, Inc., doing business as The Ava Norris Company. Postawa complains that he paid over $30,000 to Ava Norris, and thus presumably to David, for an immigration problem that David mismanaged. The handwritten agreement between Postawa and TANC, Inc., agreeing to help Postawa obtain a green card is dated September 13, 2004. David is not mentioned in the agreement between Postawa and TANC, Inc. David, on these motions, contends that he had never heard of Postawa until he got a telephone call from Postawa's attorney, Darius A. Marzec, Esq., on December 22, 2010, informing him that an emergency order to show cause would be brought the next day.

In the agreement that Postawa made with defendant TANC, Inc., on September 13, 2004, the name of the lawyer who is to supply the legal services to obtain the green card is not mentioned. David's name is not mentioned in the writing, and it was not signed by him. Ava Norris will not be able to shed any light on this case, since she died on July 4, 2010, two months before Marzec filed his complaint on behalf of Postawa.

With this factual backdrop, even if one were to accept Postawa's allegations that he had been defrauded, there is no documentary evidence that implicates David. David swears that, under an order of suspension from the practice of law from April 2004, he could not have represented Postawa in September 2010. David's name is not mentioned any where in the contract. David swears that he never represented Postawa, did not meet him, and had not heard of him until the motion practice in this case.

Even assuming arguendo that David did meet with Postawa and represented him - - and David vigorously denies the charges - - the expiration of the statute of limitations and the merit or lack of merit to the complaint are to be considered relevant factors in determining whether this Court should exercise its discretion, under CPLR 306-b, to give the plaintiff another 120 days to serve the complaint. The leading case on whether to grant or deny a motion to extend the time to serve under CPLR 306-b is Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001]. The Court of Appeals stated that reasonable diligence in attempting service is not the "gatekeeper" in deciding such motions. Id. at 104. Courts, instead, in exercising their discretion, are required to weigh and balance an amalgam of factors including the diligence of past attempts to serve, the expiration of the statute of limitations, the length of delay in service, the promptness of plaintiff's request for an extension of time to serve, and prejudice to a defendant. Id. at 101, 105-106 & n.3.

First, as to the diligence of prior attempts to serve the defendants, Marzec, Postawa's atttorney, keeps on referring to his efforts to find and serve David as being "duly diligent." This Court does not find that to be the case. Marzec asked a lawyers' service to serve a copy of the order to show cause on an address in New Jersey. As Gorman points out, the owner of a private mail facility in New Jersey that David uses was authorized to accept service of process. Marzec knew about that private facility, but simply did not have David served with process there. Alex Molman ("Molman") submitted an affidavit that he is the owner of Postmark Plus, 1070H Route 34, South Matawan, New Jersey 07747. Molman and his assistant, Michael Ferrador, were both competent and authorized to accept service of process for David. They were not so served. [*6]

Other than that attempt, Marzec tried to find an address for David on the internet, but was unsuccessful. Those efforts by Marzec are paltry and not "duly diligent."See, Forte v Lutheran Augustana Extended Care and Rehabilitation, 2009 WL 4722325 [EDNY 2009] [party did not show diligence in attempting service thus warranting denial of motion to extend time to serve]; Braxton v McMillan, 76 AD3d 607 [2nd Dept. 2010][failure to show due diligence required denial of motion to extend time to serve]; accord, Krisilas v. Mount Sinai Hospital, 63 AD3d 887 [2nd Dept. 2009]; McSorley v Spear, 50 AD3d 652 [2nd Dept. 2008]; Estate of Waterman, 46 AD3d 63 [2nd Dept. 2007]. "

"Questions of judgment" or "strategies at trial" are frowned upon as legal malpractice departures.  A strong body of law holds that trial is an art and not a science, and choices of strategy, even though eventually losers, will not be the means to a successful legal malpractice case.  Selection of witnesses, of experts, and of the questions to ask at trial (just to name a few) are unsuccessful claims.

In O'Callaghan v Brunelle ; 2011 NY Slip Op 04095 ; Decided on May 17, 2011 ; Appellate Division, First Department found that  the "allegations that defendants' failure to call the witness, who consented to the NYSE's Hearing Panel's finding that he engaged in conduct constituting improper trading arrangements and violated various rules, constituted legal malpractice "  were insufficient, and in fact, refuted by the documentary evidence.
 

Put more simply, a failure to call a witness will rarely support a legal malpractice case.  In a different setting the failure to call an alibi witness might be ineffective assistance of counsel, but the standards, and the way the AD looks at these situations is just a polar opposite.

"Standing" is the concept of a right to sue.  In legal malpractice there is a very strict requirement that only a client (with very limited exceptions) may sue the attorney.  Were this not so, every case would end with a legal malpractice started by the loser, and sometimes, the winner.

So, in Brooklyn Elec. Supply Co., Inc. v Jasne & Florio, LLP ; 2011 NY Slip Op 04186 ; Decided on May 17, 2011 ; Appellate Division, Second Department we see a highly technical, but true and effective defense to legal malpractice.  In essence, it says that the client never existed and hence may not now sue.
 

"The defendant established, prima facie, that the plaintiff, a dissolved corporation, lacked the capacity to sue because the plaintiff had been dissolved before the defendant was retained, and this legal malpractice action does not relate to the plaintiff's winding up of its corporate affairs (see Business Corporation Law §§ 1005[a][1], 1006[a][4]; [b]; Matter of 172 E. 122 St. Tenants Assn. v Schwarz, 73 NY2d 340, 348-349; Moran Enters., Inc. v Hurst, 66 AD3d 972, 975-976; 2 N. Broadway Food, Inc. v Anduze, 33 AD3d 992; Syzygy Sys. Corp. v Bader, 243 AD2d 336). The plaintiff failed to raise a triable issue of fact to rebut the defendant's prima facie showing of entitlement to judgment as a matter of law (see Lorisa Capital Corp. v Gallo, 119 AD2d 99, 110). "

Plaintiff's decedent goes to a Queens motel and is shot dead.  The shooter eventually pleads guilty to manslaughter.  How much time does the estate have to sue the shooter, the hotel and was it given correct advice on the statute of limitations by its attorney?

Ross v Saravanos ;2011 NY Slip Op 31310(U) ; May 8, 2011; Supreme Court, New York County
Docket Number: 108017/2010; Judge: Emily Jane Goodman tells us that the shooter was sued in plenty of time, but the hotel was not, and that a case against the attorneys may continue on in legal malpractice.

"on December 4, 2004, Ross was shot by defendant Saravanos (Saravanos), while on the  premises of a hotel located in Queens, New York, owned, operated, managed and
maintained by the Hotel Defendants. that Ross died that day, as a result of being shot by Saravanos. On November 19, 2009, Saravanos pled guilty to First Degree Manslaughter (Penal Law 1 2 5 . 2 0 ) , and on December 15, 2009, he was sentenced to 13 years in prison and five years of post-release .parole supervision.

On or about December 5, 2005, the Surrogate's Court issued to plaintiff Letters of Guardianship (of property) of Elijah Franklin Osman Ross, the son of Robert L. Ross. On or about July 30, 2009, the Surrogate's Court issued Letters of Administration of the property of the Estate of Robert F. Ross to plaintiff. Plaintiff filed this action againat the Hotel Defendants and GASK on June 17, 2010. Plaintiff alleges that the Hotel Defendants owed a duty to its guests, were negligent in
permitting Saravanos to enter the hotel and remain on the premises, and failed to take reasonable precautions to insure the safety of its guests. With respect t o GASK, plaintiff alleges
that she had retained the defendant law firm to represent her in connection with her efforts to obtain the Letters of Guardianship and Letters of Administration, and that GASK knew or should have known that she intended to file litigation in connection with " the death.

"Plaintiff also argues that the claims against the Hotel Defendants are timely under CPLR 213-b, which extends the statute of limitations for personal injury actions brought by victims of
a crime, against 'a defendant: (1) convicted of a crime which is the subject of such action." CPLR 213-b. However, as the Court ruled in Vasquez v Wood (18 AD3d 645, 646 [2d Dept Z O O S l ) , the
Hotel Defendants have not been convicted of a crime, and there have been no cases which broaden the applicability of this provision as the First Department has broadened CPLR 215 (8) in
Alford. Accordingly, the motion to dismiss is granted.

Plaintiff alleges that the failure by GASK to inform her of the applicable statute of limitations for her claim against the Hotel Defendants constitutes legal malpractice. GASK moves to dismiss the complaint as against it contending that since plaintiff has argued that the statute of limitations has been tolled by operation of either CPLR 215 ( 8 ) or CPLR 213-b, and, thus, her case against the Hotel Defendants was timely commenced, she should not be permitted to simultaneously argue that GASK has committed malpractice by failing to apprise her of the proper statute of limitations. Plaintiff may however assert alternate causes of action even though they may be inconsistent.
See CPLR 3014.
 

ORDERED on Motion Sequence Number 002, that the motion of defendant Goldfarb, Abrandt, Salzman & Kutzmin, LLP is denied.

Client sues attorneys for legal malpractice, and attorneys counterclaim against client for "contribution and indemnity."  When may this properly go forward?  What is "contribution" and what is "indemnity" ?

Contribution is the apportionment of  fault among joint tortfeasors.  Several contractors who each negligently damage a tenant might seek contribution among themselves. 

Indemnity is the situation in which one party is only vicariously liable to plaintiffr and entitled to full recovery froma defendant who committed the wrong.  A passive landlord might successfully seek indemnity from a negligent contractor who damages a tenant.

In 180 E. 88th St. Apt. Corp. v Law Off. of Robert Jay Gumenick, P.C. ; 2011 NY Slip Op 04096 ; decided on May 17, 2011 ;Appellate Division, First Department  we see that indemnity is not always available to the attorney against the client.

"The motion court's dismissal of the Law Firm's counterclaims for contribution and indemnification from the corporate board and its members named as counterclaim-defendants, was proper, inasmuch as the challenged action by the board was undertaken in good faith and within its capacity as representative of the cooperative corporation and, in any event, such claims by the Law Firm may only be asserted against a culpable client by way of an affirmative defense, as a mitigating factor in the attorney's negligence (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 305 note 2 [2001]). "

One of the crucial questions to be asked in legal malpractice litigation is when did the representation end.  This question comes only shortly after the question of when did the negligent event take place.  The statute of limitations is three years from the negligent event or the last date that the attorneys represented the client, whichever is later.

Years ago it was possible to extend that time to 6 years, under a breach of contract theory, but the legislature simply voted that method away.  Here, in  Daniels v Turco ; 2011 NY Slip Op 03990
Decided on May 10, 2011 ;Appellate Division, Second Department  we see how the theory plays out.
 

"The cause of action alleging legal malpractice accrued no later than April 18, 2005, when the defendants returned the case file to the plaintiff with an accompanying letter of discharge. That date was more than three years before the commencement of this action in June 2009 (see CPLR 214[6]; McCoy v Feinman, 99 NY2d 295, 301; Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749). Contrary to the plaintiff's assertion, there was no evidence of any continuous ongoing relationship between the plaintiff and the defendants after the file was returned and, therefore, the continuous representation doctrine is not applicable (see Shumsky v Eisenstein, 96 NY2d 164, 168-171; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488; Daniels v Lebit, 299 AD2d 310; Wester v Sussman, 287 AD2d 618). Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the legal malpractice cause [*2]of action as time-barred (see CPLR 214[6]; Adler v Gershman, 305 AD2d 342, 342-343).

In addition, the plaintiff's cause of action sounding in fraud was duplicative of the legal malpractice cause of action, because it arises from the same facts as the legal malpractice cause of action and does not allege distinct damages (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d at 749; Kvetnaya v Tylo, 49 AD3d 608, 609; Daniels v Lebit, 299 AD2d at 310; Mecca v Shang, 258 AD2d 569, 570). Accordingly, the fraud cause of action is likewise subject to the three-year limitations period (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750), and the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the fraud cause of action as time-barred. "

When might an  attorney be liable to a non-client for legal malpractice?  ""The law in New York does not recognize any liability on the part of an attorney to a nonclient third party for injuries sustained as a result of an attorney's actions in representing his client absent fraud, collusion, or a malicious or tortious act" (Doo v Berger, 227 AD2d 435, 436 [1996]). Brown v Mohammed
2011 NY Slip Op 50847(U); Decided on May 12, 2011 ; Supreme Court, Kings County ; Lewis, J. tells us the story of one such instance.
 

"This case involves an alleged fraudulent deed to the premises at 285 East 55th Street in Brooklyn (premises), and an alleged related money laundering scheme. Defendant Ricardo Mohammed (Mohammed) purchased the premises from plaintiffs, Agnes Alston and Selma Gunther Brown (plaintiffs) on March 23, 2007, but plaintiffs dispute the validity of the sale and argue that the contract of sale and deed are unenforceable.
Option One concurrently provided a mortgage loan to Mohammed to purchase the disputed premises on March 23, 2007. It alleges that it wired the $458,317.03 loan proceeds into the IOLA (i.e., the "interest on lawyer account") of third-party defendant Natasha Pierre (Pierre), who represented Option One as its closing agent on the Mohammed mortgage. Option One further alleges that Pierre simultaneously and improperly represented Mohammed in the real-estate transaction; that Pierre received the wired funds from Option One; and that Pierre issued six checks totaling $415,337.46, each payable to George Alston, husband of plaintiff Agnes Alston. The Alstons held an undivided one-half interest in the disputed premises, but Mr. Alston had died on January 26, 2001Option One additionally alleges in its fourth cause of action (Id. at ¶ 58) that third-party defendant Abakporo, an attorney, deposited the six checks, endorsed "George Alston" and "Eric Abakporo" to his own IOLA. The present motion to dismiss and cross motion for default judgment concern Option One's third-party complaint against Abakporo.

Abakporo contends that a man purporting to be George Alston, along with his alleged grandson Mark Bailey, appeared at Abakporo's law office on March 26, 2007. Abakporo further alleges that this purported George Alston gave him a New York State Identification Card and the checks which had been issued by Pierre. The purported George Alston allegedly asked Abakporo to deposit the funds into Abakporo's escrow account and to later release the funds to Mark Bailey. However, the individual who identified himself as Mark Bailey then informed Abakporo that he did not have a checking account and requested that Abakporo issue the funds to his alleged brother, Juan Pimentel. Abakporo complied with these requests and issued checks totaling over $400,000 in April 2007 from his escrow account to Juan Pimentel, who has since been indicted for his role in this scheme.

Finally, Option One alleges regarding Abakporo that Abakporo "negligently, recklessly or intentionally allowed his attorney IOLA account to be used to launder funds stolen from Option One." Here, Option One has set forth factual allegations bringing this case into one of the quoted exceptions. Option One in other words alleges that Abakporo committed a "tortious act" by converting Option One's funds and/or colluding with Pimintel in the apparent money laundering scheme. Such allegations enable Option One's claim sounding in attorney malpractice to stand. Overall, the adequately pleaded claims for conversion, aiding and abetting conversion and attorney malpractice negate Abakporo's motion to dismiss Option One's third-party complaint. "

There is little (or no) factual underpinning to this legal malpractice case, and no explanation of  the various positions taken by the parties.  In Pistilli Constr. & Dev. Corp. v Epstein, Rayhill & Frankini ; 2011 NY Slip Op 04025 ; Decided on May 10, 2011 ; Appellate Division, Second Department we directly learn only that the law firm wins summary judgment.  Let us try to guess who is who, and why?
 

We see that Plaintiff construction company is represented by a litigation firm in Long island, and that plaintiff is a corporation.  We see that plaintiff attempted to bring in an insurance carrier as being vicariously liable in the matter.  It is our guess that plaintiff was itself a defendant in a tort case, was represented by defendant and that the underlying action did not go well.  We further guess that the carrier did not want to settle the case, or offered advice contrary to plaintiff's expectations.

You take a look and make your own guess.

"Here, in support of the defendants' motion for summary judgment dismissing the complaint, they demonstrated, prima facie, that the plaintiff was unable to establish that the alleged negligence of the defendants Epstein, Rayhill & Frankini (hereinafter the law firm) and Mona C. Haas proximately caused the loss sustained. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly dismissed the first cause of action alleging legal malpractice asserted against those defendants (see Boone v Bender, 74 AD3d 1111, 1112-1113; Boglia v Greenberg, 63 AD3d 973, 974; Kotzian v McCarthy, 36 AD3d 863).

Regarding the second cause of action, "[a] claim of vicarious liability cannot stand when there is no primary liability upon which such a claim of vicarious liability might rest'" (Pereira v St. Joseph's Cemetery, 54 AD3d 835, 837, quoting Karaduman v Newsday, Inc., 51 NY2d 531, 546). Accordingly, the Supreme Court properly dismissed the second cause of action, which sought to hold the defendant Nationwide Mutual Insurance Company (hereinafter Nationwide) vicariously liable for the alleged malpractice of the law firm and Haas. Furthermore, the facts of this case do not give rise to an [*2]equitable estoppel claim against Nationwide, as it never assumed the defense of the plaintiff in the underlying action (cf. Brooklyn Hosp. Ctr. v Centennial Ins. Co., 258 AD2d 491; Touchette Corp. v Merchants Mut. Ins. Co., 76 AD2d 7, 12). Therefore, the Supreme Court also properly dismissed the plaintiff's third cause of action."
 

The early days of the 20th century brought us the Robber barons, and the rise of corporations.  The interconnectedness and remote nature of the relationships challenged the Courts, and led to a school of "better practice" business aspiration.  Today, as long as a profit motive exists, there will be arrangements between persons which are created to mask the true nature of financial relationships. South Shore Neurologic Assoc., P.C. v Ruskin Moscou Faltischek, P.C. ; 2011 NY Slip Op 50801(U) ; Decided on May 4, 2011 ; Supreme Court, Suffolk County ; Pines, J. is a prime example. We urge you to read the facts to determine the relationship between the law firm and its numerous corporate clients.  Here are the rules, put forth by Justice Pines, to determine whether there has been breach of fiduciary duty.
 

"In order to establish a claim for breach of fiduciary duty, a Plaintiff is required to demonstrate 1) the existence of a fiduciary relationship; 2) misconduct by the Defendant; and 3) damages directly caused by such conduct. Kurtzman v Bergstol, 40 AD3d 588, 835 NYS2d 644 ( 2d Dep't 2007). Whether a fiduciary relationship exists between parties is necessarily fact specific. AG Capital Funding Partners, LP v State Street Bank and Trust Co, 11 NY3d 146, 866 NYS2d 578, 896 NE2d 91 (2008). An attorney stands in a fiduciary relationship to his or her client, Graubard Mollen Dannett & Horowitz v Moscovitz, 86 NY2d 112, 629 NYS2d 1009, 653 NE2d 1179 (1995), and is thus charged with a high degree of undivided loyalty to his or her client. Kelly v Greason, 23 NY2d 368, 296 NYS2d 937, 244 NE2d 456 [*5](1968). However, a violation of a disciplinary rule, without more, is insufficient to state an action for breach of fiduciary duty. Schwartz v Olshan Grundman Frome & Rozensweig, 302 AD2d 193, 753 NYS2d 482 (1st Dep't 2003).

The statute of limitations for breach of fiduciary duty is dependent on the substantive remedy sought by the plaintiff. Thus, a six year statute applies, where equitable relief is sought; and a three year statute applies where the "injury to property" is the gravamen of the action. CPLR §§213(1), 214. The claim accrues, for statue of limitations purposes, when the fiduciary has repudiated his or her obligation. Westchester Religious Institute v Kamerman, 262 AD2d 131, 691 NYS2d 502 (1st Dep't 1999).  Westchester Religious Institute v Kamerman, 262 AD2d 131, 691 NYS2d 502 (1st Dep't 1999). The doctrine of "continuous representation" tolls the running of this statute where the claim is brought against an attorney fiduciary but only so long as the defendant continued to represent the Plaintiff in connection with the transaction that is the subject of the action as opposed to general representation. Transport Workers Union of America Local 100 AFL-CIO v Schwartz, 32 AD3d 710, 821 NYS2d 53 (1st Dep't 2006).

Under the Code of Professional Responsibility (now the Rules of Professional Conduct, 22 NYCRR 1200 et. seq.) a lawyer may not concurrently represent clients with adverse interests nor take on a new client whose interests are adverse to an existing client. Where an attorney represents multiple clients and a situation arises posing potential conflicts among them, the attorney may not undertake the representation of any of the clients unless continued involvement is with the full consent of all parties upon complete disclosure. Kelly v Greason, supra. Whether an attorney-client relationship exists depends on the actions of the parties, as there are no set of rigid rules as to what is required to form an attorney-client relationship. See, McLenithan v McLenithan, 273 AD2d 757, 710 NYS2d 674 (3d Dep't 2000).

In an action for fraud, a plaintiff must demonstrate that the defendant misrepresented or omitted a material fact which was false and known to be false and made for the purpose of the other party to rely upon it, justifiable reliance by such party on the misrepresentation or material omission, and injury resulting therefrom. Ross v Louise Wise Services, 8 NY3d 478, 836 NYS2d 509, 868 NE2d 189 (2007); see, Graubard Mollen Dannett & Horowitz v Moscovitz, 86 NY2d 112, 629 NYS2d 1009, 653 NE2d 1179 (1995). In this vein, an attorney may be liable to non-clients for wrongful acts if guilty of fraud or collusion or of a malicious or tortious [*6]act. Koncelik v Abady, 179 AD2d 942, 578 NYS2d 717, Callahan v Callahan, 127 AD2d 298, 514 NYS2d 819 (3d Dep't 1987). The statute of limitations for fraud is six years from the accrual of the claim or within two years from the actual or imputed discovery of the fraud. CPLR 213 (8), 203 (f); see, Trepuk v Frank, 44 NY2d 723, 405 NYS2d 452, 376 NE2d 924 (1978). As with the claim for breach of fiduciary duty, the continuous representation doctrine tolls the running of the statute of limitations against a professional defendant, but only so long as the defendant continues to represent the plaintiff in connection with the transaction and not merely the continuation of the general professional relationship. Transport Workers Union of America Local 100 AFL-CIO v Schwartz, supra. Punitive damages are not recoverable in the ordinary fraud case, but may be recovered where the fraudulent act is gross, involves high moral culpability and is aimed at the general public. Walker v Sheldon, 10 NY2d 401, 223 NYS2d 488, 179 NE2d 497 (1961).

Finally, one who owes a duty of fidelity or loyalty to another and is faithless in performance of such duty is generally disentitled to recover compensation for his services. Feiger v Iral Jewlry Ltd, 41 NY2d 928, 394 NYS2d 626, 363 NE2d 350 (1977). "

Attorney fee suits lead to interesting further proceedings.  An oft cited piece of advice at CLEs is that attorney fee suits invite legal malpractice counterclaims.  Here is one. They do not always succeed.  However, was it worth the $6000 fee case?

In Richard A. Kraslow, P.C. v LoGiudice ;  2011 NY Slip Op 50823(U) ;  Decided on May 5, 2011
Appellate Term, Second Department.  Attorney represented client in a divorce and spouse died during the proceedings.  Client then participated in the Surrogate's court case, and alleges big losses there. "Plaintiff and defendant had executed a retainer agreement, dated January 28, 2002, which governed the legal services rendered during the matrimonial action. They did not execute another retainer agreement for the Surrogate's Court action. Plaintiff commenced this action to recover damages for breach of contract and unjust enrichment after defendant had failed to pay for the legal services which plaintiff had rendered in connection with the Surrogate's Court action.

Defendant answered and, in addition to interposing various affirmative defenses, asserted the following counterclaims: first, the matrimonial action and retainer agreement had terminated on April 15, 2002, upon the death of defendant's wife, whereupon the parties had failed to execute a subsequent agreement; second, plaintiff had failed to timely file a right of election against defendant's wife's estate, resulting in damages in the amount of $66,000; third, plaintiff had not challenged the validity of a waiver agreement whereby defendant had disclaimed his status as the sole beneficiary of his wife's pension benefits, resulting in damages in the amount of $109,000; fourth, plaintiff had improperly advised defendant to stop paying the mortgage on the marital residence, which had resulted in a foreclosure action and damages "in an amount of not
less than $100,000"; fifth, that plaintiff should refund the money that defendant had paid him under the retainer agreement in the amount of $5,090 because the retainer agreement was "legally [*2]deficien[t]"; sixth, plaintiff had been unjustly enriched in the amount of $5,090 because the retainer agreement was "legally deficient"; seventh, that plaintiff should refund the money defendant had paid him after the alleged termination of the retainer agreement in the amount of $6,950; eighth, plaintiff had been unjustly enriched in the amount of $6,950; and ninth, plaintiff was not entitled to damages for any legal services rendered to defendant after April 15, 2002.

Plaintiff moved for summary judgment seeking to dismiss the counterclaims in their entirety. The District Court denied the motion with respect to all the counterclaims except the fourth. Plaintiff appeals from so much of the order as denied the various branches of its motion.

Inasmuch as both the first and ninth counterclaims do not contain a demand for affirmative relief, the District Court should have granted the branches of plaintiff's motion for summary judgment seeking to dismiss them.

With respect to the second counterclaim, defendant failed to rebut plaintiff's proof that defendant was unable to establish his legal malpractice action. To succeed on a motion for summary judgment dismissing a counterclaim for legal malpractice, a plaintiff "must demonstrate that the [defendant] is unable to prove at least one of the essential elements of its legal malpractice cause of action" (Boglia v Greenberg, 63 AD3d 973, 974 [2009]; see Kotzian v McCarthy, 36 AD3d 863 [2007]). In response, the defendant is required to show that the plaintiff "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 [the defendant] to sustain actual and ascertainable damages" (Mueller v Fruchter, 71 AD3d 650 [2010] [internal citations omitted]).

Plaintiff submitted a sworn affidavit averring that he had reached a favorable tentative settlement with the estate of defendant's deceased wife in the amount of
$100,000. In response, defendant failed to proffer any evidence that he had sustained actual and ascertainable damages resulting from plaintiff's decision to pursue one strategy in the Surrogate's Court action rather than another (Collard & Roe, P.C. v Vlacancich, 6 Misc 3d 17, 18-19 [App Term, 9th & 10th Jud Dists 2004]). Consequently, the District Court should have dismissed the second counterclaim.

With respect to the third counterclaim, defendant failed to rebut plaintiff's proof that defendant did not establish that he had signed the waiver of pension benefits under mental duress. Likewise, defendant's fifth and sixth counterclaims have "no merit" because defendant failed to either rebut plaintiff's proof that the retainer agreement was legally sufficient or specify any legal theory upon which relief could potentially be granted (Ventura v Fischer, 21 Misc 3d 131[A], 2008 NY Slip Op 52124[U], *2 [App Term, 2d & 11th Jud Dists 2008]; see CPLR 3212 [b]). [*3]

Finally, the District Court should have dismissed the seventh and eighth counterclaims because plaintiff's alleged violation of 22 NYCRR 1215.1, in and of itself, is not a ground for the disgorgement or refund of already paid attorney's fees (see Jones v Wright, 16 Misc 3d 133[A], 2007 NY Slip Op 51494[U] [App Term, 9th & 10th Jud Dists 2007]; Constantine Cannon LLP v Parnes, 2010 NY Slip Op 31956[U], *16 [Sup Ct, NY County 2010]).

Accordingly, the order insofar as appealed from, is reversed and the branches of plaintiff's motion for summary judgment seeking to dismiss defendant's first, second, third, fifth, sixth, seventh, eighth and ninth counterclaims are granted. "

Is a motion for summary judgment in a legal malpractice case timely or not?  One Supreme Court Justice says that it is, and one says that it is not?  is the first decision the law of the case or not?  Is the Appellate Division bound by an earlier decision?  How can two learned justices disagree with eachother?  Which is right?  How is that right decision to become law?

in Powell v Kasper ;2011 NY Slip Op 04027 ; Decided on May 10, 2011 ; Appellate Division, Second Department we see one deft answer.
 

"At the outset, the doctrine of the law of the case "applies . . . to legal determinations that were necessarily resolved on the merits in [a] prior decision" (Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294 [internal quotation marks omitted]). Here, the order dated November 25, 2009, in effect, addressed the parties' arguments as to whether Kasper's summary judgment motion, originally filed on August 19, 2009, was timely pursuant to the parties' stipulation. As such, upon Kasper's resubmission of his summary judgment motion to Justice Kelly, the Supreme Court was barred from making a new determination on the issue of the motion's timeliness (see Martin v City of Cohoes, 37 NY2d 162, 165; RPG Consulting, Inc. v Zormati, 82 AD3d 739; Baldasano v Bank of N.Y., 199 AD2d 184, 185). [*2]However, because the law of the case doctrine does not bind an appellate court (see Martin v City of Cohoes, 37 NY2d at 165; White Plains Plaza Realty, LLC v Town Sports Intl., LLC, 79 AD3d 1025, 1027; Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1295), we must consider whether Kasper's motion was untimely pursuant to the 90-day deadline set forth in the stipulation.

The stipulation provides, in pertinent part, that "[a]ny party may submit a summary judgment motion within 90 days following completion of EBTs." The record indicates that depositions were completed on April 24, 2009.

It is undisputed that Kasper did not file his original summary judgment motion until August 19, 2009, which was several weeks beyond the 90-day deadline set forth in the stipulation. As such, Kasper's summary judgment motion was untimely pursuant to the terms of the stipulation (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727; Brill v City of New York, 2 NY3d 648, 652; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006). "

Is a motion for summary judgment in a legal malpractice case timely or not?  One Supreme Court Justice says that it is, and one says that it is not?  is the first decision the law of the case or not?  Is the Appellate Division bound by an earlier decision?  How can two learned justices disagree with eachother?  Which is right?  How is that right decision to become law?

in Powell v Kasper ;2011 NY Slip Op 04027 ; Decided on May 10, 2011 ; Appellate Division, Second Department we see one deft answer.
 

"At the outset, the doctrine of the law of the case "applies . . . to legal determinations that were necessarily resolved on the merits in [a] prior decision" (Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294 [internal quotation marks omitted]). Here, the order dated November 25, 2009, in effect, addressed the parties' arguments as to whether Kasper's summary judgment motion, originally filed on August 19, 2009, was timely pursuant to the parties' stipulation. As such, upon Kasper's resubmission of his summary judgment motion to Justice Kelly, the Supreme Court was barred from making a new determination on the issue of the motion's timeliness (see Martin v City of Cohoes, 37 NY2d 162, 165; RPG Consulting, Inc. v Zormati, 82 AD3d 739; Baldasano v Bank of N.Y., 199 AD2d 184, 185). [*2]However, because the law of the case doctrine does not bind an appellate court (see Martin v City of Cohoes, 37 NY2d at 165; White Plains Plaza Realty, LLC v Town Sports Intl., LLC, 79 AD3d 1025, 1027; Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1295), we must consider whether Kasper's motion was untimely pursuant to the 90-day deadline set forth in the stipulation.

The stipulation provides, in pertinent part, that "[a]ny party may submit a summary judgment motion within 90 days following completion of EBTs." The record indicates that depositions were completed on April 24, 2009.

It is undisputed that Kasper did not file his original summary judgment motion until August 19, 2009, which was several weeks beyond the 90-day deadline set forth in the stipulation. As such, Kasper's summary judgment motion was untimely pursuant to the terms of the stipulation (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727; Brill v City of New York, 2 NY3d 648, 652; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006). "

Is a motion for summary judgment in a legal malpractice case timely or not?  One Supreme Court Justice says that it is, and one says that it is not?  is the first decision the law of the case or not?  Is the Appellate Division bound by an earlier decision?  How can two learned justices disagree with eachother?  Which is right?  How is that right decision to become law?

in Powell v Kasper ;2011 NY Slip Op 04027 ; Decided on May 10, 2011 ; Appellate Division, Second Department we see one deft answer.
 

"At the outset, the doctrine of the law of the case "applies . . . to legal determinations that were necessarily resolved on the merits in [a] prior decision" (Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293, 1294 [internal quotation marks omitted]). Here, the order dated November 25, 2009, in effect, addressed the parties' arguments as to whether Kasper's summary judgment motion, originally filed on August 19, 2009, was timely pursuant to the parties' stipulation. As such, upon Kasper's resubmission of his summary judgment motion to Justice Kelly, the Supreme Court was barred from making a new determination on the issue of the motion's timeliness (see Martin v City of Cohoes, 37 NY2d 162, 165; RPG Consulting, Inc. v Zormati, 82 AD3d 739; Baldasano v Bank of N.Y., 199 AD2d 184, 185). [*2]However, because the law of the case doctrine does not bind an appellate court (see Martin v City of Cohoes, 37 NY2d at 165; White Plains Plaza Realty, LLC v Town Sports Intl., LLC, 79 AD3d 1025, 1027; Lehman v North Greenwich Landscaping, LLC, 65 AD3d at 1295), we must consider whether Kasper's motion was untimely pursuant to the 90-day deadline set forth in the stipulation.

The stipulation provides, in pertinent part, that "[a]ny party may submit a summary judgment motion within 90 days following completion of EBTs." The record indicates that depositions were completed on April 24, 2009.

It is undisputed that Kasper did not file his original summary judgment motion until August 19, 2009, which was several weeks beyond the 90-day deadline set forth in the stipulation. As such, Kasper's summary judgment motion was untimely pursuant to the terms of the stipulation (see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 727; Brill v City of New York, 2 NY3d 648, 652; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006). "

We've discussed the oft-found fact situation of how a fee determination by a bankruptcy court may block a later legal malpractice action. In Breslin Realty Dev. Corp. v Shaw ; 2010 NY Slip Op 00087 Decided on January 5, 2010; Appellate Division, Second Department; Chambers, J., J. the court writes persuasively about the concept:
 

"In bankruptcy proceedings, the general rule arising under 11 USC § 330(a)(4) is that "a finding of malpractice would mean that the attorneys were not entitled to compensation for those services found to be substandard" and, accordingly, failure to raise the malpractice claims when the final fee applications were considered and approved by the Bankruptcy Court barred later litigation of such claims under principles of res judicata (In re Iannochino, 242 F3d 36, 42; see Grausz v Englander, 321 F3d 467; Osherow v Ernst & Young [In re Intelogic Trace], 200 F3d 382; cf. Clement v Brumfield, 2004 Cal. App. Unpub. LEXIS 1031, citing Matter of Boddy, 950 F2d 334). Res judicata bars future litigation between the same parties or those in privity arising out of transactions giving rise to a cause of action which could have been raised in a prior bankruptcy proceeding (see Truesdell v Donaldson, Lufkin & Jenrette Sec. Corp., 281 AD2d 334; Evergreen Bank v Dashnaw, 246 AD2d 814). An exception lies if the plaintiff was deceived in the prior action or proceeding (see Izko Sportwear Co. Inc., v Flaum, 25 AD3d 534; Penthouse Media Group v Pachulski Stang Ziehl & Jones [US Dist Ct, SD NY, 9 Civ 85, Scheindlin, J., 2009]).

Applying these principles, we conclude that the final award of fees in the bankruptcy proceeding bars the plaintiffs' malpractice claim based upon the same services in the present litigation. The final fee award in the bankruptcy proceeding was a determination on the merits, barring the legal action sounding in legal malpractice pursuant to the doctrine of res judicata (see Izko Sportwear Co. Inc. v Flaum, 25 AD3d 534).

Further, we are unpersuaded that there is evidence in this case that the defendants deceived the debtors or the Bankruptcy Court. The June 2003 agreement demonstrates that the plaintiffs were aware of the factual basis of their malpractice claim at the time of the defendants' fee application. Moreover, the June 2003 agreement was drafted at least in part by separate and independent counsel—the Dollinger law firm. Thus, on the date that the Bankcuptcy Court entered the defendants' final award, December 15, 2003, the debtors had ample opportunity to raise their malpractice claims as objections to the fee award. Accordingly, we conclude that the plaintiffs failed to meet their burden of demonstrating under the doctrine of collateral estoppel that they lacked a full and fair opportunity to litigate the legal malpractice claim in the Bankruptcy Court (see Izko Sportswear Co. Inc. v Flaum, 25 AD3d 534; cf. Penthouse Media Group v Pachulski Stang Ziehl & Jones [US Dist Ct, SD NY, 9 Civ 85, Scheindlin, J., 2009]). "

It's a trick question.  The answer is always those that are relevant, material and cannot be obtained elsewhere.  In the Fourth Department, this case states the rule:Riordan v Cellino & Barnes, P.C.
2011 NY Slip Op 03769 ;Decided on May 6, 2011 ; Appellate Division, Fourth Department
 

"Memorandum: Plaintiffs commenced this legal malpractice action seeking damages allegedly resulting from the negligence of defendants in their representation of Clarence F. Riordan (plaintiff) in the underlying Labor Law and common-law negligence action. Plaintiff commenced the underlying action seeking damages for injuries that he sustained when he was working on the reconstruction of a school building in East Rochester. Defendants, however, failed to serve a timely notice of claim against East Rochester Schools (see Matter of Riordan v East Rochester Schools, 291 AD2d 922, lv denied 98 NY2d 603), and a jury returned a verdict of no cause of action with respect to plaintiff's claims against the remaining defendant in the underlying action. Defendants admit that they were negligent in failing to serve the notice of claim in a timely manner, but they contend that they are not liable for legal malpractice on the ground that the underlying action against East Rochester Schools has no merit. "

Legal malpractice is ubiquitous.    All social classes are potential litigants, and almost every human endeavor (which interact with the law) will have incidences of legal malpractice.  We are reminded of the New Yorker cartoon in which a small boy cries over a dropped ice cream cone, and a suited man asks "Do you need an attorney, little boy?"

This nobel laureat did need an attorney, and it turned out badly.  Now it heads to legal malpractice litigation. Today's NYLJ, in an article by Zoe Tilman, writes:

"Rita Bank, a well-known Washington, D.C., divorce attorney, has been litigating unhappy break-ups for more than a quarter-century. But next month, the family law heavyweight will find herself in court over an unamicable split with a renowned former client.

Ms. Bank is facing a $5 million legal malpractice lawsuit from Joseph Stiglitz, a New York-based Nobel laureate in economics, who is claiming that Ms. Bank gave him counsel that left him financially vulnerable in the divorce proceedings and failed to promptly tell him about merger discussions she was having at the time with his ex-wife's attorney.

Ms. Bank, a co-partner at Ain & Bank, has denied any wrongdoing. She referred questions to her attorney, Richard Simpson of Wiley Rein in Washington, D.C., who called the lawsuit "meritless." "Everything was handled exactly as the ethics rules say they should be handled," he said.

The case was scheduled to go to trial before U.S. District Judge Richard Leon in 2008, but was rescheduled a half-dozen times during the past three years because of scheduling conflicts and motions detours. For instance, Mr. Stiglitz, a Columbia University economics professor, argued unsuccessfully that he should be allowed to testify as a damages expert, given his background.

The trial is scheduled to begin June 21 in U.S. District Court for the District of Columbia.

Mr. Stiglitz hired Ms. Bank in 2000, shortly after he had separated from his second wife, Jane Hannaway. At the time, Ms. Bank was with Feldesman Tucker Leifer Fidell in Washington, D.C.

From the beginning, Mr. Stiglitz claims that Ms. Bank failed to follow his wishes to file suit as soon as possible. Mr. Stiglitz notes in his complaint that when divorce negotiations began, he knew that he was under consideration for the Nobel Prize in economics and wanted to prevent Ms. Hannaway from laying claim to any subsequent award or income.

Mr. Stiglitz has accused Ms. Bank of giving him misinformation throughout the divorce negotiations. At the onset, Mr. Stiglitz claims that Ms. Bank failed to tell him that in the District of Columbia assets can be considered part of the marital estate until the divorce trial. Instead, he alleges, she told him that if he deposited new income in a separate bank account, it would be off limits when it came time to divide the estate.

When Mr. Stiglitz relocated from Washington to New York in 2001, he claims Ms. Bank then failed to advise him on the differences in matrimonial law between the two jurisdictions that might have led him to reconsider the move. After Mr. Stiglitz received the Nobel Prize in 2001, he says Ms. Bank failed to tell him that his "celebrity status" could open the door to larger earnings claims from Ms. Hannaway if the case proceeded in New York."
 

In re: Teligent, Incorporated, Debtor v. K&L Gates LLP, 10-2257-bk (L);U.S. Court of Appeals, Second Circuit Bankruptcy is an odd case. It combines elements of bad faith litigation, Mary Carter agreements, bankruptcy dealing and huge sums.  A"'Mary Carter" agreement can give the "settling" defendant a financial interest in the remainder of the plaintiff’s case and more importantly in the amount recovered against any non-settling defendant(s)." 

Here, "When Teligent, Inc. ("Teligent") hired Alex Mandl as its CEO in 1996, the company extended Mandl a $15 million loan. The loan was to be due and payable immediately if Mandl resigned his employment without "good reason," but would be automatically forgiven if Teligent terminated Mandl's employment other than for "cause."

Mandl retained the law firm K&L Gates LLP around April 2001 in connection with his potential departure from Teligent. At that time, $12 million was outstanding on the loan. K&L Gates drafted a severance agreement for Mandl that, according to the law firm, "reflect[ed] that Teligent had terminated Mandl other than for Cause effective as of April 27, 2001, thus triggering automatic loan forgiveness."

Less than a month after the parties ratified the severance agreement, Teligent filed for bankruptcy under Chapter 11. Cross-Appellee Savage & Associates, P.C. ("Savage & Associates") was appointed by the bankruptcy court to be the Unsecured Claims Estate Representative. In discharging its duties pursuant to this role, Savage & Associates filed approximately 1,000 adversary proceedings. These adversary proceedings included an action against Mandl, brought under Sections 548 and 550 of Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§548, 550, to recover the balance of the loan. Mandl again retained K&L Gates to represent him in connection with this matter.

The bankruptcy court held a one-day trial after which it concluded that Mandl had resigned before Teligent terminated his employment, and therefore, Mandl was liable for the balance of the loan. See In re Teligent, Inc., 380 B.R. 324, 333-36 (Bankr. S.D.N.Y. 2008). That finding was not appealed.

Shortly after the bankruptcy court issued its decision relating to the loan, Mandl retained Greenberg Traurig, LLP ("Greenberg Traurig") as new counsel. Greenberg Traurig then filed a number of motions, including a motion for relief from the judgment based in part on a claim of newly discovered evidence. Around the same time, Savage and Associates commenced a new lawsuit in the Eastern District of Virginia against Mandl, naming as defendants Mandl's wife, Susan Mandl, and ASM Investments LLC ("ASM"), an entity associated with Mandl, and alleging that Mandl had fraudulently transferred certain property through ASM to his wife in order to shelter his assets from creditors.

All parties to the action in Virginia participated in a voluntary mediation in attempt to resolve both the motions before the bankruptcy court as well as the Virginia Action. Greenberg Traurig invited K&L Gates to participate in the mediation, to address Mandl's claim that K&L Gates committed malpractice in the course of representing him during his termination from Teligent and in the resulting adversary proceeding. K&L Gates declined to participate.

In setting up a framework for the mediation, the parties agreed to be bound by the terms of the protective orders routinely employed by the Bankruptcy Court in the Southern District of New York in the context of court-ordered mediation (the "Protective Orders"). The Protective Orders imposed limitations, inter alia, on the disclosure of information relating to the mediation. However, the Protective Orders provided no guidance on when, or if, a party might be entitled to release confidential information connected to the mediation.

Although formal mediation did not result in a settlement, the parties thereafter reached an agreement. In exchange for dismissal of the action in Virginia, Mandl agreed to pay the estate $6.005 million and to commence a malpractice suit against K&L Gates. The terms of the agreement also required Mandl to remit to the estate 50 percent of the net value of any malpractice recovery. The bankruptcy court approved the settlement pursuant to a motion under Federal

ule of Bankruptcy Procedure 9019 

Legal malpractice litigagnts, as well as most other plaintiffs, would like to bring a case where they live.  It's convenient, it's more likely favorable, and it's easier.  However, a case which took place in a neighboring state may not be proper to bring in NY.  Here is an example.  In Paolucci v Kamas
2011 NY Slip Op 03823 ; Decided on May 3, 2011; Appellate Division, Second Department, plaintiff finds that the case may not be brought in NY.  The AD doesn't say, but the events leading to legal malpractice litigation took place in Kansas.
 

"Personal jurisdiction can be conferred under CPLR 302(a)(1) "even though the defendant never enters New York, so long as the defendant's activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095; see Fischbarg v Doucet, 9 NY3d 375, 380). Here, however, the Supreme Court properly determined that the number, nature, and quality of the defendants' contacts with New York do not evince purposeful activities by which the defendants availed themselves of the benefits and protections of New York law (see Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861; see also Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; O'Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; cf. Fischbarg v Doucet, 9 NY3d 375; Grimaldi v Guinn, 72 AD3d 37).

The Supreme Court also properly determined that personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3) based upon tortious activity occurring outside New York, causing injury within New York. The plaintiff failed to demonstrate prima facie that the defendants "[1] regularly do[ ] or solicit[ ] business, or engage[ ] in any other persistent course of conduct, or derive[ ] substantial revenue from goods used or consumed or services rendered, in the state," or "[2] expect[ ] or should reasonably expect the act to have consequences in the state and derive[ ] substantial revenue from interstate or international commerce" (CPLR 302[a][3][i], [ii]; see Ingraham v Carroll, 90 NY2d 592; cf. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210). [*2]"

In Law Offs. of D'amico & Assoc., PLLC v D'Elia ; 2011 NY Slip Op 21160 ; Decided on April 26, 2011 ; Appellate Term, Second Department  attorney (plaintiff) has sued client (defendant) for fees, while at the same time attorney (defendant) is being sued for legal malpractice in Supreme Court by Client (plaintiff.)  What happens to the Civil Court fee suit when the Supreme Court malpractice is dismissed.
The general rules of civil procedure apply.  While there may be application of res judicata and collateral estoppel there is also application of the rule that you may not bring up new arguments in reply.

"While plaintiff, in its initial moving papers, sought to dismiss defendant's counterclaims pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (7), it did not, in those papers, seek dismissal based upon res judicata pursuant to CPLR 3211 (a) (5), and it implicitly sought dismissal on res judicata grounds, if at all, only by letter to the District Court. New theories and arguments in support of a motion which do not appear in the initial moving papers should not be considered by the motion court (see e.g. Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992] [reply papers should not be used to raise new arguments]). By granting plaintiff relief on the alternative ground implicitly raised by its letter, the District Court relieved plaintiff of its burden of demonstrating in its initial moving papers that the claims asserted against the D'Amico firm in the Supreme Court action were the same as those asserted against it in defendant's counterclaims in the instant action, and deprived defendant of a meaningful opportunity to contest that issue (see Fergusson v Dumbacher, 21 Misc 3d 145[A], 2008 NY Slip Op 52547[U] [App Term, 1st Dept 2008]; Zarintash v Kopple, 5 Misc 3d 130[A], 2004 NY Slip Op 51309[U] [App Term, 1st Dept 2004]). Accordingly, it was error for the District Court to dismiss defendant's counterclaims on the alternative ground of res judicata implicitly raised by plaintiff.

In view of the foregoing, the order is reversed, and the matter is remitted to the District Court for a new determination of the branch of plaintiff's motion seeking to dismiss defendant's counterclaims pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (7). This disposition is without prejudice to plaintiff's seeking dismissal of defendant's counterclaims on the ground of res judicata upon proper notice. "

Plaintiff lives to fight another day, but is unlikely to win the war.

Legal malpractice litigation is a complicated matter, with the need to prove hypothetical outcomes, requirements for experts, and proofs that things would have come out differently.  It is not for the faint of heart.  Pro-se litigants do poorly here.

In Kovitz v Wenig, Ginsberg, Saltiel & Greene, LLP ;  2011 NY Slip Op 50768(U) ;  Decided on April 26, 2011 ;  Appellate Term, Second Department we see one such unfortunate outcome. "Plaintiff commenced this small claims action seeking to recover $2,000 as a result of defendant's alleged legal malpractice. At the nonjury trial, plaintiff testified that he had retained defendant to commence an action for illegal eviction "done by lock-out without a warrant." Plaintiff stated that defendant had repeatedly failed to properly serve a necessary party to the action, which had resulted in the dismissal of that action. Plaintiff further asserted that defendant had failed to verify the necessary party's residence or effectuate service through alternative methods. A partner in defendant's firm testified that her firm could not properly serve the necessary party because plaintiff had provided the firm with the party's incorrect addresses, and plaintiff had refused to pay the cost of an investigator to ascertain the party's actual residence. The partner further contended that, in any event, defendant had failed to prove his damages. The Civil Court found that plaintiff had failed to establish a prima facie case of legal malpractice and dismissed the action. "

"The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000])." "Since the court's findings and conclusions are supported by the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (CCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126). Accordingly, the judgment is affirmed"

LOK PRAKASHAN, LTD. -v.- RALPH A. BERMAN, DAVIDOFF MALITO & HUTCHER, LLP,
No. 09-0136-cv; UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2009 U.S. App. LEXIS 22988 is an example of the Court's continued romance with the concept that litigation is an art and not a science.

What is a question of judgment? " "A complaint that essentially alleges either an 'error of judgment' or a 'selection of one among several reasonable courses of action' fails to state a claim for malpractice." Id.

The District Court concluded that "[b]ecause there is ample evidence in the record that Defendants' omission of the specified document was a conscious and reasonable decision regarding trial strategy, not negligence, and the omission of the document was not the proximate cause of any loss, Plaintiff has failed to show the elements required to support a claim of legal malpractice." [*4] Order of November 1, 2005. We agree and, substantially for the reasons stated by the District Court in its well-reasoned orders of November 1, 2005 and December 12, 2008, find plaintiff's arguments to be without merit."
 

We are often struck by the human element and how it interacts with the institutional element of litigation.  Schedules are packed, attorneys have many cases, court dates go unrecorded, attorneys just don't show up for conferences, and yet the cases go on.  We believe that even in a successful case for one side or the other, a detailed inspection of the file or the record will demonstrate multiple mistakes by the winner.  In other words, there are often departures without proximity.

Even in legal malpractice litigation, where the stakes are at least conceptually raised, mistakes happen.  Here, in Hudson v Gouldbourne ; 2011 NY Slip Op 03548 ; Decided on April 26, 2011
Appellate Division, Second Department  we see a default, a motion for a default judgment, a judgment and now, a sanction. 

"An order relieving a party from a default may be conditioned on payment of a monetary sanction pursuant to CPLR 5015(a) (see Gissaro v Lessne, 300 AD2d 281, 282; Du Jour v DeJean, 247 AD2d 370, 371; Workman v Amato, 231 AD2d 627, 628; Coven v Trust Co. of N.J., 225 AD2d 576; Sasson v Sasson, 134 AD2d 491). Under the circumstances of this case, the Supreme Court providently exercised its discretion in imposing a monetary sanction in the sum of $3,000 as a condition to granting the defendant's motion to vacate the default judgment against her on the issue of liability. "

The hiring and firing of attorneys (or their reaction to being fired) is its own field of law.  Collection of legal fees and arguments over whether the client got good value for the monies paid is a constant meme in legal malpractice.

Good cause for termination is not the same as malpractice. Attorney malpractice, the deviation from good and accepted practice, which proximately damaged the party, in which, but for the negligence of the attorney there would have been a different or better result is not the same as good cause for termination. Termination for cause has arisen in many situations in which malpractice was not even discussed, much less claimed. Substantial delays in prosecuting the case, failure timely to obtain medical records, failure to retain an employment [which] contravenes specific legal requirements is sufficient, abandonment of a case, a conflict of interest, a refusal personally to try a case, a failure to disclose a settlement offer, are all examples of misconduct which does not amount to malpractice.

The difference flows logically from the question of damages. In malpractice there is a positive claim for damages, over and above fee considerations from the attorneys; in the question of termination for cause, there can be but a reduction of the fees paid, but no positive claim for damages. As one might expect, the burden of proof for malpractice requires much more than the burden of proof to decide between "good cause" and "no cause."
 

In this medical malpractice case (first cousin to legal malpractice) Judge Lobis of Supreme Court, New York County discusses how a seemingly good defendant's Motion for Summary judgment fails and why battling about the Note of Issue was a waste of everyone's time.

DeSantis v Zito  ; 2011 NY Slip Op 31059(U)  ; April 24, 2011;  Supreme Court, New York County
Docket Number: 109753/09;  Judge: Joan B. Lobis is a case about what might seem to be an obvious case of medical malpractice.  Doctor is performing a procedure for the prostate, and perforates the bladder.  Lifelong consequences ensue.  Doctor and facility are sued.  Is facility at fault?  Not yet.

"The Moving Defendants failed to meet their initial burden in demonstrating that they art entitled to summary judgment. Their expert’s affidavit was highly conclusory, failed to identify any standard of care, and failed to point to anything in the records to back up his vague statements that the Moving Defendants’ staff acted appropriately at all times. Additionally, the Moving Defendants’ papers were deficient in that they failed to annex any of Mr. DeSantis’ medical records to their motion, even though Dr. Waldbaum maintains that he reviewed and relied on those records in forming his opinion. Moreover, neither counsel for the Moving Defendants nor their expert addresses plaintiffs’ separate claims sounding in negligent hiring and supervision, lack of informed consent, or vicarious liability for the acts of Dr. Zito. As the movants failed to meet their initial burden, the court need not reach the sufficiency of plaintiffs’ opposition papers. Summary judgment is denied."
 

Plaintiff filed a note of issue during motion practice.  Does this merit a sanction?  Not yet.

"Given the fact that no one disputes that Dr. Zito was timely served with a copy of the note of issue, the court is not convinced, at this point, that plaintiffs’ alleged failure to serve the Moving defendants with a copy of the note of issue amounts to anything more than law office failure on the part of plaintiff "

Justice Judith Gische of Supreme Court, New York County presents a primer on attorney fee litigation and the disposition of counterclaims for legal malpractice in Hurley v. Bulah Church of God in Christ Jesus, Inc.  In this case the Church had gone through some hard times.  A pastor was accused of financial wrongdoing, and the Church was in Bankruptcy Court for taxes and other debts.  Attorney was retained, and worked on the case in what turns out to be an admirable fashion.  When the Bankruptcy was winding up, leadership of the Church changed, and he was no longer so admired there.  Effect?  The Bankruptcy court approved fees, and he was paid.  Nevertheless, there were post-discharge work and fees, and this dispute in state court followed.

Read for the excellent description of why and how an attorney is due fees. "an attorney who is discharged by a client for cause has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement.  Teichner by Teichner v. W & J Holsteins, Inc., 64 NY2d 977 (1985).    On this motion plaintiff has successfully established that he: 1) owed unpaid legal fees; 2) was not discharged for cause, but withdraw as counsel with court approval; 3) deposited money into his attorney escrow account to be applied to post closing matters, like distribution of money to creditors, etc; and 4) Deacon Roberts was authorized to attend to the church's financial matters with respect to the reorganization.  Thus, plaintiff has proved he is owed unpaid legal fees and other fees."

 ENGLAND and MIDWEST GEMS, INC., -against- . FELDMAN and FELDMAN LAW GROUP, Defendants.11 Civ. 1396 (CM) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;  2011 U.S. Dist. LEXIS 36382;  March 28, 2011, is as good a primer in the general and substantive laws of legal malpractice as one might read.  There, Judge McMahon tells us:

"Plaintiffs' First Cause of Action alleges a legal malpractice claim against Defendants. Defendants argue that Plaintiffs have not pleaded facts tending to show that Defendants were negligent or that Defendants caused Plaintiffs harm. Yes, they have."

"Thus, a plaintiff "must . . . establish[] that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community." Stokes v. Lusker, 2009 U.S. Dist. LEXIS 23471, 2009 WL 612336, at *10 (S.D.N.Y. Mar. 4, 2009) (quoting Hatfield v. Herz, 109 F. Supp. 2d 174, 180 (S.D.N.Y. 2000)).

"To [*10] establish the elements of proximate cause and actual damages for a claim of legal malpractice, the plaintiff must show that 'but for the attorney's negligence, what would have been a favorable outcome was an unfavorable outcome.'" Stonewell Corp., 678 F. Supp. 2d at 209 (quoting Zarin v. Reid & Priest, 184 A.D.2d 385, 585 N.Y.S.2d 379, 381 (N.Y. App. Div. 1992)). "The failure to establish proximate cause requires dismissal of the legal malpractice action, regardless of whether it is demonstrated that the attorney was negligent." Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 753 N.Y.S.2d 482, 486 (N.Y. App. Div. 2003).
 

Plaintiffs allege facts tending to show that Feldman's conduct in the Underlying Lawsuit fell below the standard of care and diligence commonly possessed by other members of the bar. Moreover, Plaintiff's allege that Feldman's negligence was the proximate cause of Plaintiffs' damages—specifically, the loss of certain trademark rights in the "Iceman" mark (Compl. ¶ 47), the inability to assert valid cross-claims and third-party claims against other parties (id. ¶ 40), and the payment of unnecessary legal fees (id. ¶ 47). Plaintiffs' allegations are sufficient to plead a claim for legal malpractice in New York as they allege facts tending to show attorney negligence by Defendants and that Defendants' negligence is the proximate cause of the damage Plaintiffs' suffered.

Under New York law, where a claim for negligence, breach of fiduciary duty, breach of contract, or failure to disclose a conflict of interest are premised on the same facts and seek the identical relief as a claim for legal malpractice, these claims are "redundant and should be dismissed." Nordwind, 584 F.3d at 432-33 (quotation marks omitted); accord Amadasu v. Ngati, 2006 U.S. Dist. LEXIS 19654, 2006 WL 842456, at *9 (E.D.N.Y. Mar. 27, 2006) (dismissing plaintiff's claims for breach of contract, breach of fiduciary duty, negligent misrepresentation, negligent performance, and gross negligence as duplicative). Plaintiffs' claims for breach of contract and breach of the implied covenant of good faith and fair dealing arise from the same facts as the legal malpractice claim in and do not allege any distinct damages other than the damages suffered as a result of the legal malpractice. See Financial Services Vehicle Trust v. Saad, 72 A.D.3d 1019, 900 N.Y.S.2d 353, 354 (N.Y. App. Div. 2010); [*14] see also Joyce v. Thompson Wigdor & Gilly LLP, 2008 U.S. Dist. LEXIS 43210, 2008 WL 2329227, at *14 (S.D.N.Y. June 3, 2008) (citing Norwind v. Rowland, 2007 U.S. Dist. LEXIS 75764, 2007 WL 2962350, at *4 (S.D.N.Y. Oct. 10, 2007)) (breach of fiduciary duty and breach of contract).

Accordingly, Counts Two and Three are dismissed as duplicative of the legal malpractice claim."

Here's a fairly simple case.  Plaintiff signs a real estate contract with a mortgage contingency.  If she cannot obtain a mortgage she must give notice.  If she properly gives notice she gets her down payment back.  She hires attorney who negligently fails to give notice.  She does not get her down payment back.  Legal malpractice?

The opaque decision from the Second Department tells us no.  It doesn't exactly tell us why,. Beyond that, the rationale is murky. Bells v Foster   2011 NY Slip Op 03195   Decided on April 19, 2011   Appellate Division, Second Department  say:  "Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law because she failed to demonstrate that any negligence on the defendant's part in failing to timely cancel the contract of sale on her behalf was the sole proximate cause of her damages (see Snolis v Clare, 81 AD3d 923; see also Selletti v Liotti, 22 AD3d 739; compare Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511). Accordingly, the Supreme Court erred in granting the plaintiff's motion for summary judgment on the issue of liability.

The Supreme Court properly denied the defendant's cross motion for summary judgment dismissing the complaint. The defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law since he failed to show that the plaintiff was unable to prove at least one of the essential elements of her legal malpractice cause of action (see Mueller v Fruchter, 71 AD3d 650, 651; Velie v Ellis Law, P.C., 48 AD3d 674, 675; Pedro v Walker, 46 AD3d 789, 790; Eisenberger v Septimus, 44 AD3d 994, 995; Shopsin v Siben & Siben, 268 AD2d 578, 578-579). "

Well, then, plaintiff failed to show that the attorney negligence was the "sole proximate cause"  Isn't that enough?

 But, then, what of Barnett v. Schwartz, 2007 NY Slip Op 09712 [47 AD3d 197] ?

"First, the parties have not cited, and research has not revealed, any case from the Court of Appeals or any other court expressly holding that "but for" causation is synonymous with sole proximate cause, or that requires a degree of causation in legal malpractice cases greater than proximate cause, i.e., greater than that which must be typically proved as against any other professional or lay defendant in a negligence action. Similarly, the parties have not cited, and research has not revealed, any case discussing or identifying any basis for singling out attorneys for special treatment on the issue of causation. The Pattern Jury Instruction on legal malpractice, which focuses upon the lawsuit-within-a-lawsuit scenario, does not expressly use either the phrase "but for" or "proximate cause" in its formulation (PJI 2:152). However, the comments to the instruction, while noting the "but for" formulation, provide that a defendant-attorney's negligence need only be [*5] "a" proximate cause of damages and refer the reader to the general Pattern Jury Instruction on proximate cause (1 NY PJI 2:152, at 872, 880 [2008] PJI 2:70). Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause. For example, in the lawsuit-within-a-lawsuit scenario, the plaintiff-client must prove that but for the defendant-attorney's negligence they would have prevailed in the underlying action.

 Well, consistency may be overrated.

One really can't tell from the decision, but this appears to be a personal injury - motor vehicle case in NYC with a blown statute.  The decision in Greene v Sager   2011 NY Slip Op 50688(U)   Decided on April 19, 2011   Supreme Court, Kings County   Rivera, J. sets forth the various standards for a summary judgment motion, for legal malpractice, and describes, in great detail, the various evidentiary offers of the parties.  In the end, no SJ for plaintiff.
 

"On November 20, 2007, plaintiff filed a summons and verified complaint which alleged twenty-seven allegations of fact in support of a cause of action for legal malpractice by the defendants. In sum and substance, the complaint alleges the following salient facts. The defendants are part of a firm licensed to practice law in the State of New York. On July 26, 2003, the defendants agreed to represent plaintiff in a claim for damages for personal injuries sustained on July 23, 2003. The defendants allegedly failed to file necessary law suit papers within the statutory time period thereby preventing plaintiff from recovering damages for her alleged injuries.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hospital, 68 NY2d 320, 508 N.Y.S.2d 923 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v. Citibank, 100 NY2d 72, 760 N.Y.S.2d 397 [2003]). A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 923, 597 N.Y.S.2d 653 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v. Prospect Hospital, supra, 68 NY2d at 324). [*4]

In an action to recover damages 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 the plaintiff to sustain actual and ascertainable damages (Alizio v. Feldman, __ AD3d __, 918 N.Y.S.2d 218 [2nd Dept., 2011]; see, Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 N.Y.S.2d 534 [2007]). "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" (id).

"Expert testimony is normally needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (Healy v. Finz & Finz, __ AD3d __ [2nd Dept., 2011]; citing, Northrop v. Thorsen, 46 AD3d 780, 782, 848 N.Y.S.2d 304 [2nd Dept., 2007]).

CPLR 214 (5) imposes a three-year limitation period, with certain exceptions, on "an action to recover damages for a personal injury." (See, Giordano v. Market Am., Inc., 15 NY3d 590, 915 N.Y.S.2d 884 [2010])

The elements of a negligence claim are the existence of a duty, a breach of that duty, and damages proximately caused by that breach of duty (Lapidus v. State, 57 AD3d 83, 866 N.Y.S.2d 711 [2nd Dept., 2008]). "To prove a prima facie case of negligence in a slip and fall case, a plaintiff is required to show that the defendant created the condition which caused the accident or that the defendant had actual or constructive notice of the condition" (Scott v. Beverly Hills Furniture, 30 AD3d 577, 578, 817 N.Y.S.2d 381 [2nd Dept., 2006]; citing Goldman v. Waldbaum, 248 AD2d 436, 669 N.Y.S.2d 669 [2nd Dept., 1999]). A defendant has constructive notice of a defect when the defect is visible and apparent, and existed for a sufficient length of time before the accident that it could have been discovered and corrected (Larsen v. Congregation B'Nai Jeshurum of Staten Island, 29 AD3d 643, 815 N.Y.S.2d 187 [2nd Dept., 2006]). "

We think there is.  It's hiding inAccess Point Med., LLC v Mandell ;2011 NY Slip Op 30866(U)
April 8, 2011 Supreme Court, New York County Docket Number: 102082/2010

Here is how it goes.  Generally in legal malpractice or in breach of fiduciary duty the statute of limitations begins to run on the date of the malpractice.  Forgetting about continuous representation, the date of the malpractice is often easily calculated.  Many battles are fought over what that date is, and there is no "discovery" statute of limitations.

However,  “[a] tort claim accrues as soon as ‘the claim becomes enforceable, Le., when all elements of the tort can be truthfully alleged in a complaint”’ (id, at 140 [internal citation omitted]). Similarly, in other torts in which damage is an essential element, the claim “is not enforceable until damages are sustained. To determine timeliness, we consider whether plaintiff’s complaint must, as a matter of law, be read to allege damages suffered so early as to render the claim time-barred” IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132,139 [2009]. 

As to legal malpractice, “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”’ (McCoy v Feinman, 99 NY2d 295, 301 [2002]

Here is the argument to be made when the statute might reasonably be argued:  Sure, a mistake was made, but no claim could be made until the "but for" part of the case came into existence, and that did not come into existence until there were actual damages...

We think that plaintiffs should have been on notice when they were asked to do business with Bill Kidd, but even his name was not a tip-off.  Here's what happened.  Kidd invested $5 million to start a low-cost durable medical equipment business that was dependent on getting cheep materials from China.  He hired Troutman and Mandell to represent him.  His company Access drafted a Private Placement Memorandum and got an initial investment of $ 15 million.  Then a year later it got a second investment of $ 30 million.  All's good?  Not really.  The basic underlying necessity never existed, and cheep materials from China were not so cheep.  It all fell apart.  The problem was that the law firm represented Kidd to the detriment of his company Access.

Now, Kidd and his company Access were on two sides of the aisle, and Access sued the attorneys?  Result?  They waited 3 days too long, and the statute of limitations ran.  In Access Point Med., LLC v Mandell ; 2011 NY Slip Op 30866(U); April 8, 2011; Supreme Court, New York County; Docket Number: 102082/2010;  Judith J. Gische defines the statute of limitations for breach of fiduciary duty as 3 years when the basic relief sought is economic and 6 years when the basic relief sought is equitable. Time begins to run when the breach occurred,  Disgorgement of fees is generally incidental to economic relief.

How does one prove that the settlement was not good enough, given the circumstances? How does one prove that had this or that taken place, that Husband would have paid less, and more to the point, how does one prove that Husband was the victim rather than the beneficiary of the settlement?  It's all in the minutia of the divorce dollars.

in Sevey v Friedlander ;   2011 NY Slip Op 02978 ;Decided on April 14, 2011 ;Appellate Division, Third Department we see that even the purchase of a car by husband is factored into the mix.  Question:  was he misled, was there malpractice, or did he know exactly what he was getting and giving, and now is simply carrying on war under a different caption?
 

"Defendants established that the settlement was, in many regards, financially favorable to plaintiff. For example, his temporary child support for his three children of $2,000 per month was reduced in the stipulation to $650 per month and he agreed to pay that amount for four years at which time his wife was required to pay child support to plaintiff for their son who resided with him. The duration of spousal maintenance for the long-term marriage was also capped at four years and, in fact, he paid for a shorter duration because his spouse remarried. Although he had received a $20,000 bonus on top of his $95,000 salary, his stipulated income included none of the bonus money. His spouse's stipulated income from her small business was set at $28,000, which was an amount falling between her claimed earnings of $14,596 and the $46,703 contended by plaintiff's expert. Moreover, at the time the divorce case was pending, plaintiff purchased a luxury car with monthly payments of nearly $800 for five years, an action that did not assist his position in the negotiations. Defendants submitted sufficient proof to shift the burden as to the element of whether plaintiff sustained actual damages.

Plaintiff contends that he would have received a more favorable result if he had gone to trial. On this record, his contention is entirely speculative (see Boone v Bender, 74 AD3d 1111, 1113 [2010]). "
 

Win Hay LLC v Chin ; 2011 NY Slip Op 02801 ; Decided on April 7, 2011 ; Appellate Division, First Department is an example of the most informal type of arrangement between an attorney and a client.  Client paid the attorney, who "forwarded" the fees to another attorney.  This informal type of relationship is unusual in New York.
 

"The documentary evidence refuted plaintiff's allegations that plaintiff retained Choi to represent it in connection with its application for a tax exemption for certain real property (see CPLR 3211[a][1]). Although plaintiff purportedly paid a portion of a retainer fee to Choi, the record shows that the entire amount of the retainer was forwarded to defendant Chin, who admittedly represented plaintiff in connection with the application and who plaintiff had met with prior to issuing the subject payment (see Wei Cheng Chang v Pi, 288 AD2d 378 [2001], lv denied 99 NY2d 501 [2002]).

The record further demonstrates that, other than forwarding the retainer payment to defendant Chin, Choi was not involved in submitting the application, and had no knowledge as to whether Chin had filed the application and the necessary documents on plaintiff's behalf. The record establishes that there was no attorney-client relationship between plaintiff and Choi and accordingly, the complaint is dismissed as against him (see Wei Cheng Chang, 288 AD2d at 381; D'Amico v First Union Natl. Bank, 285 AD2d 166, 172 [2001], lv denied 99 NY2d 501 [2002"
 

Guayara v Harry I. Katz, P.C. ; 2011 NY Slip Op 02845 ;Decided on April 5, 2011 ;Appellate Division, Second Department  is a relatively straightforward legal malpractice case involving multiple defendants.  Is a claim that defendants knew of a judgment won by plaintiff and failed to tell her of methods by which she could have recovered the judgment monies legal malpractice?
 

The AD1 thought that it could be. "The causes of action alleged, among other things, that the negligent failure to inform her of enforcement devices available to her to collect on a judgment entered in her favor in the principal sum of $279,079.47, caused her
to sell that judgment to a third party at the severely discounted rate of $100,000. After Meruelo answered the complaint, in which, among other things, he asserted cross claims against the Katz defendants for contribution and indemnification, the Katz defendants moved, in lieu of an answer, to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1) and (7) and to dismiss the cross claims asserted against them by Meruelo. Meruelo separately moved to dismiss the complaint pursuant to, inter alia, CPLR 3211(a)(7). The Supreme Court denied both motions. The Katz defendants and Meruelo separately appeal. We affirm the order insofar as appealed from.

To sustain a cause of action alleging legal malpractice, a plaintiff must show that the defendant 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 professional duty caused the plaintiff's actual damages" (McCoy v Feinman, 99 NY2d 295, 301-302 [internal [*2]quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Walker v Glotzer, 79 AD3d 737). To succeed on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), the documentary evidence relied upon by the defendant must "conclusively establish[] a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88). When determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), "the standard is whether the pleading states a cause of action," and "the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Sokol v Leader, 74 AD3d 1180, 1180-1181, quoting Leon v Martinez, 84 NY2d at 87-88).

Here, the complaint alleged, inter alia, that but for the Katz defendants' and Meruelo's failure to inform her of the enforcement options available to her to collect on the judgment, the plaintiff would not have sold the judgment at such a discounted value and would have collected the full amount of the judgment. Accordingly, the complaint states legally cognizable causes of action against the Katz defendants and Meruelo sounding in legal malpractice. Thus, the Supreme Court properly denied those branches of the Katz defendants' and Meruelo's separate motions which were to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7). Moreover, as the documents submitted by the Katz defendants do not conclusively dispose of the plaintiff's claims against them, the Supreme Court properly denied that branch of the Katz defendants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1). "

How often do cases explode because of discovery abuses?  We do not have a firm answer, but much of the legal malpractice litigation world arises from discovery abuses.  Here, in Rock City Sound, Inc. v Bashian & Farber, LLP ;2011 NY Slip Op 02861 ;Decided on April 5, 2011 ;Appellate Division, Second Department we see a law firm being punished as a defendant in a legal malpractice case based upon its own refusal to provide records, in a discovery abuse scenario.

"In the order appealed from, the Supreme Court, inter alia, granted that branch of the plaintiff's renewed motion pursuant to CPLR 3126 which was to strike the defendants' answer. The defendants appeal, and we affirm the order insofar as appealed from.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court (see Raville v Elnomany, 76 AD3d 520, 521; Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727, 728; 1523 Real Estate, Inc. v East Atl. Props., LLC, 41 AD3d 567, 568; Ordonez v Guerra, 295 AD2d 325, 326). However, the "drastic remedy" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 801) of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious (see Lomax v Rochdale Vil. Inc., 76 AD3d 999, 999; [*2]Moray v City of Yonkers, 76 AD3d 618, 619; Cobenas v Ginsburg Dev. Cos. LLC., 74 AD3d 1269, 1270; Xiao Yang Chen v Fischer, 73 AD3d 1167). " Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply'" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800, quoting Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954, 954-955), " or a failure to comply with court-ordered discovery over an extended period of time'" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800, quoting Prappas v Papadatos, 38 AD3d 871, 872; see Russell v B & B Indus., 309 AD2d 914, 915; Penafiel v Puretz, 298 AD2d 446, 447).

It is clear from this record that the defendants willfully and contumaciously defied discovery orders of the Supreme Court by repeatedly failing to submit files requested by the plaintiff (see Russell v B & B Indus., 309 AD2d at 915; Nicoletti v Ozram Transp., 286 AD2d 719, 719-720; Penafiel v Puretz, 298 AD2d at 447). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's renewed motion which was to strike the defendants' answer (see Nicoletti v Ozram Transp., 286 AD2d at 719-720; Penafiel v Puretz, 298 AD2d at 447). "

This case involves experts in medical malpractice, but it is equally applicable to legal malpractice cases.  May an expert witness (doctor or lawyer) be sued for malpractice based upon expert testimony at a malpractice case?  The answer in Cattani v Marfuggi  ;2009 NY Slip Op 29538 [26 Misc 3d 1053] ; November 25, 2009 ; Friedman, J. ; Supreme Court, New York County  is no.
 

"Plaintiff ignores an overwhelming body of case law, reiterated repeatedly by the appellate courts of this state, that "[s]tatements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding." (Sinrod v Stone, 20 AD3d 560, 561 [2d Dept 2005]; Mosesson v Jacob D. Fuchsberg Law Firm, 257 AD2d 381 [1st Dept 1999], lv denied 93 NY2d 808 [1999]; accord Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163 [1st Dept 2007]; see generally Park Knoll Assoc. v Schmidt, 59 NY2d 205 [1983]; Toker v Pollak, 44 NY2d 211 [1978].) "
 

"This court afforded plaintiff's counsel, Richard Stone, a reasonable opportunity to avoid this sanctions hearing. On March 19, 2009, at the oral argument of defendant's motion to dismiss, the court met with counsel for the parties in chambers, expressed its concern that continued maintenance of the action could potentially subject plaintiff to sanctions, and adjourned the oral argument to enable plaintiff's counsel to consult with other counsel about the legal issues and to confer with his client. On that date, at plaintiff's counsel's request, the court also provided him with citations to the immunity cases that are cited in the court's April 16, 2009 [*4]decision, which was rendered on the adjourned date after plaintiff's counsel apprised the court that he did not intend to withdraw this action.

Plaintiff has steadfastly insisted that his claims are maintainable. He has ignored the governing case law on witness immunity and has attempted to distinguish the absolute immunity cases on insupportable grounds. Thus, he argues that the immunity cases are all inapplicable because they are progeny of Marsh v Ellsworth (50 NY 309 [1872]), a case involving defamation rather than fraud. (Tr at 16, 19.) At times, plaintiff appears to advance the meritless suggestion that the immunity cases apply only to defamation claims and not to claims involving perjured testimony generally. (Tr at 33.) Focusing on Newin, plaintiff fails to acknowledge that the general rule is that an absolute privilege attaches to witnesses' testimony in judicial{**26 Misc 3d at 1058} proceedings, and that Newin states an exception, which has been applied only in "rare cases," for perjured testimony that is part of a "larger fraudulent scheme." (Tolisano v Texon, 144 AD2d 267, 271 [1st Dept 1988, Smith, J., dissenting] [citing Newin], revd for reasons stated in dissent 75 NY2d 732 [1989].) As held above, plaintiff's attempt to bring this case within the Newin exception is completely baseless, and rests on the bare assertion of a larger fraudulent scheme, unsupported by any factual allegations. "

Attorneys sometimes say, in essence, sorry, I was wrong.  This happens far less often then one might think, but, it does happen.  When does that admission become applicable and useful in summary judgment.  The obvious answer is "after joinder of issue", but the more real world answer is found in  Vlachos v Weil ;2011 NY Slip Op 50538(U) ;Decided on April 8, 2011 ;Supreme Court, Queens County ;Markey, J. .  An e-mail is said to contain an admission of wrongdoing.
 

"This e-mail standing alone does not establish all the elements of a cause of action for legal malpractice. This Court's independent legal research has revealed that admissions contained in e-mails may be used in litigation, but only after a court has analyzed carefully several issues, including, but not limited to, the authority and the capacity that the person who made the statement had, in the factual circumstances of the case, for making the particular statement or admission (see, Sea-land Serv., Inc. v Lozen Intl., LLC, 285 F3d 808, 821-822 [9th Cir. 2002] [district court abused discretion in excluding e-mail admission]; Jackson v Sara Lee Bakery Group, 677 F. Supp. 2d 1268 [ND Ala. 2009] [excellent analysis of whether particular emails constituted admissions, depending on the status of the person's position within the company and the circumstances under which the alleged admission was made within the email] ; Schaghticoke Tribal Nation v Kempthorne, 587 F. Supp 2d 389, 398 [D. Conn. 2008] [e-mails written by congressional staffers were not admissions, but emails by Governor's staff were considered admissions]; In re Homestore.Com, Inc. Securities Litigation, 347 F. Supp 2d 769, 781 [CD Cal. 2004] [admitting emails as admissions as "highly relevant" to the financial dealings]; Riisna v American Broadcasting Companies, Inc., 219 F. Supp. 2d 568, 571-573 [SDNY 2002] [email from executive producer of television news show was considered an admission]). [*3]

In the present case, it would be improvident, at this pre-deposition phase, to start applying admissions in order to short circuit meaningful discovery. Several issues of fact exist warranting discovery, including the role each defendant and the plaintiffs played in determining how payments were to be made and whether any purported malpractice was the proximate "but for" cause of the injury.

Furthermore, no discovery, including any deposition has taken place. In light of the substantial outstanding discovery, including the depositions of the parties, the motions by the plaintiffs and the defendant Weil for summary judgment are denied as premature, without prejudice to renew (CPLR 3212[f]; see, Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636 [2nd Dept. 2006]; Rosa v Colonial Tr., 276 AD2d 781 [2nd Dept. 2000]). "

Capogrosso v Landsman ;2011 NY Slip Op 02826 ;Decided on April 5, 2011 ;Appellate Division, Second Department  is an example of the problem of successor attorneys.  Aside from the fact that this particular plaintiff is herself an attorney, and has herself sued many attorneys (and lost), the more salient point to take from this case is that there is always a problem of the successor attorney and how liability might be attributed. 
 

Here, plaintiff herself was the successor attorney, but that is not important for the more general lesson that when a successor attorney takes over and the case (or appeal) is still alive, it will be the work of that successor attorney to win or lose, and the predecessor attorney is more or less off the hook.

"The defendant represented the plaintiff, an attorney, in a prior action. Following a trial in the prior action, judgment was entered against the plaintiff. The defendant filed a notice of appeal on the plaintiff's behalf and then withdrew as her counsel in the action. The plaintiff proceeded pro se, perfected the appeal, and the Appellate Division, First Department, affirmed the judgment against the plaintiff (see Capogrosso v Reade Broadways Assoc., 63 AD3d 414).

Subsequently, the plaintiff commenced this legal malpractice action against the defendant, alleging, inter alia, that the defendant failed to turn over the case file from the prior action, and that this failure prevented the plaintiff from perfecting her appeal. The defendant moved, among other things, to dismiss the complaint pursuant to CPLR 3211(a)(1), asserting that the plaintiff had, in fact, perfected her appeal and lost. In addition, the defendant contended that he had a retaining lien on the case file in the prior action because the plaintiff owed him substantial fees for his services. In response, the plaintiff argued that she was forced to bring an appeal limited to a single issue because she was unable to construct a complete record for the appeal in the absence of the defendant's file. The Supreme Court, inter alia, granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1), and the plaintiff appeals. We affirm the order insofar as appealed from. "

In the Third Department certain types of cases seem to predominate.  One such type is tax matters.  This case,Dealey-Doe-Eyes Maddux v Schur ;2011 NY Slip Op 02763 ;Decided on April 7, 2011 ;Appellate Division, Third Department falls into that category.  A failed tax action against Fulton County, followed by a failed legal malpractice action, followed by two later attempts to get it started once again.  The question is, why and how do plaintiffs pro-se- persist?
 

"Defendant, an attorney, represented plaintiff in a tax assessment proceeding that she initiated against the Town of Oppenheim, Fulton County, during which she contends the Town was held in contempt. In 2003, plaintiff commenced this legal malpractice action against defendant alleging that he never filed an order with Supreme Court memorializing the contempt finding it issued against the Town and, as a result, was negligent in the legal representation that he provided her in that proceeding [FN1]. After plaintiff completed the presentation of her proof at trial, Supreme Court granted defendant's motion to dismiss.

Subsequently, plaintiff filed a motion to renew (see CPLR 2221 [e]) seeking to reopen her action against defendant on the ground that she had recently received a letter from the Chief Clerk of the Supreme and County Courts in Fulton County that constituted new evidence confirming that the Town had been held in contempt in the tax assessment proceeding. Initially, [*2]Supreme Court determined that plaintiff was, in fact, not filing a motion to renew but, instead, was filing a motion to be relieved from the effects of a prior judgment (see CPLR 5015). After making that determination, Supreme Court denied plaintiff's motion because she had failed to demonstrate that she had acted with due diligence in the discovery of this evidence and, even if it had been available at trial, plaintiff did not establish that there would have been a different result.[FN2]

One year later, plaintiff filed another motion to renew (see CPLR 2221 [e]), once again claiming that she had discovered new evidence which, if admitted at trial, would have resulted in a finding that defendant was negligent. This evidence included papers filed by defendant in support of the application seeking a contempt citation against the Town, as well as letters that plaintiff received from the Supreme and County Court Clerk's office documenting her efforts to establish that a contempt finding had been issued against the Town. Supreme Court again converted plaintiff's application into a motion to be relieved from a prior judgment (see CPLR 5015) and denied it because the evidence submitted by plaintiff was not new, nor would it have made a difference if introduced into evidence at trial. Plaintiff now appeals. "

The Fourth Department, in what we see as strong terms, reiterated that it is always the attorney's job to prepare the case, and that responsibility may not be shifted to the client.  Even when the client participates in the preparation it remains a responsibility of the attorney. 

In Rupert v Gates & Adams, P.C. ;2011 NY Slip Op 02554 ; Decided on April 1, 2011 ; Appellate Division, Fourth Department  the AD not only says that it was the obligation of the attorneys to trace and investigate matrimonial assets, but that they themselves had to do the work.
 

"We further conclude, however, that the foregoing waiver analysis does not apply with respect to plaintiff's aforementioned claims that defendants were negligent with respect to the investigation and valuation of plaintiff's separate property, their investigation of the payment of the sum of $315,000 relative to a note held by plaintiff, and their investigation of the deposit by plaintiff of approximately $60,000 in pension monies into a joint account. Defendants failed to meet their initial burden on those parts of the motion concerning those claims (see Pignataro, 38 AD3d 1320; see generally Zuckerman, 49 NY2d at 562). The waiver analysis based on plaintiff's global settlement does not apply to those purported deficiencies in defendants' representation of plaintiff in the matrimonial action because the appeal from the final judgment in the matrimonial action would not have permitted defendants or substitute counsel for plaintiff to address questions regarding the failure to trace plaintiff's separate property into the marriage and to locate evidence both proving plaintiff's payment of $315,000 on an outstanding note and demonstrating that $60,000 of plaintiff's pension monies had been transferred to a joint account to be shared with plaintiff's former wife. Finally, defendants will not be heard to contend that plaintiff's involvement with the preparation of the matrimonial action for trial bars him from raising those deficiencies. An attorney generally is not permitted to shift to the client the legal responsibility that the attorney was hired to undertake because of his or her superior knowledge (see Northrop v Thorsen, 46 AD3d 780, 783). Indeed, it is well settled that "[a]n attorney has the responsibility to investigate and prepare every phase of his [or her] client's case" (Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 453 [internal quotation marks omitted]). "

We had not thought about the time relations hp between legal malpractice and breach of fiduciary duty and how the first could become impossible while the second  could start, but the Fourth Department set it all out in Neuman v Frank ;2011 NY Slip Op 02215  ;Decided on March 25, 2011
Appellate Division, Fourth Department.  

Answering the question of whether they are duplicitive, it found that they were not, as the claims of legal malpractice applied to the time when the attorneys represented plaintiff, and a breach of fiduciary duty analysis applied to later dealings after the representation ended.
 

"Addressing defendants' cross motion for partial summary judgment, we conclude that Supreme Court properly denied the cross motion with respect to defendant, the sole appellant. "A cause of action for legal malpractice must be based on the existence of an attorney-client relationship at the time of the alleged malpractice' " (TVGA Eng'g, Surveying, P.C. v Gallick [appeal No. 2], 45 AD3d 1252, 1256; see Compis Servs., Inc. v Greenman, 15 AD3d 855, lv denied 4 NY3d 709). The fiduciary duty of an attorney, however, "extends both to current clients and former clients and thus is broader in scope than a cause of action for legal malpractice" (TVGA Eng'g, Surveying, P.C., 45 [*2]AD3d at 1256; see Greene v Greene, 47 NY2d 447, 453). Thus, a cause of action for legal malpractice based upon alleged misconduct occurring during the attorney's representation of the plaintiff is not duplicative of a cause of action for breach of fiduciary duty based upon alleged misconduct occurring after the termination of the representation (see Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391; Kurman v Schnapp, 73 AD3d 435, 435-436). Although plaintiff alleged in the amended complaint that defendant's misconduct occurred during the period from October 2004 to May 2005, when defendant represented plaintiff in transactions related to the development of a shopping center, defendant testified at his deposition that he withdrew from representing plaintiff at some point prior to April 11, 2005. Therefore, based on defendant's own deposition testimony, defendants failed to meet their initial burden of establishing that the breach of fiduciary duty cause of action is duplicative of the legal malpractice cause of action for the period between May 2005 and the as yet unspecified date prior to April 11, 2005 when defendant ceased to represent plaintiff (see Country Club Partners, LLC, 79 AD3d at 1391; Kurman, 73 AD3d at 435-436). "

Client is a sophisticated real estate investor, and has hired attorney to do two deals already.  Both went smoothly.  Third time, client expects to lend $ 500,000 to a real estate development, and finds himself not only out the $ 500,000 but owing $ 650,000 to another lender. 

Defendant attorney says, look at the documents.  Sophisticated client investor knew exactly what he was doing.  There is no legal malpractice.  Who is right?  We see the following in Marom v Anselmo ;2011 NY Slip Op 30756(U); March 31, 2011; Supreme Court, Richmond County
Docket Number: 101440/09; Judge: Joseph J. Maltese

"Defendant correctly notes that a party who signs a document without reading it is generally bounds by its terms notwithstanding any avowed lack of knowledge of its contents (see Matter of ugustine v. BankUnited, FSB, 75 AD3d 596, 597; Martino v. Kaschak, 308 AD2d 698). Dfendant is further correct in noting that (1) the terms of these documents are clear; (2) a quick rading thereof would have apprised plaintiff that he had not been granted a first mortgage on the sbject property; (3) plaintiff was no novice to real estate investing; (4) there has been no claim that plaintiff was suffering from any disability at the time of execution or was prevented from reading the documents, and (5) plaintiff does not claim that he was forced or coerced into signing the documents, or was subjected to either fraud or misrepresentation (see Matter of Augustine v.BankUnited, FSB, 75 AD3d at 597; Pistilli v. Gandin, 10 AD3d 353, 354; Pimpinello v. Swift & Co., 253 NY 159, 162-163). However, plaintiff at bar has not challenged the binding nature of the documents which he signed or tried to avoid the terms of his agreements with the Zeers. Under similar circumstances, the Court of Appeals has held that “the binding nature of [the] agreement[s] between plaintiff and a third party is not a complete defense to the professional malpractice of [a lawyer or] law firm that [is alleged to have secured] an agreement [which operated to its client’s detriment]” (see Arnav Indus., Inc. Retirement Trust v. Brown Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 304-305)
The culpable conduct of the plaintiff-client in a legal malpractice action may, nevertheless, be pleaded as a mitigating factor by way of an affirmative defense (see Cicorelli v Capobianco, 90 AD2d 524, affd 59 NY2d 626)."

When the statute of limitations begins to run and whether there is continuous representation is a constant problem in legal malpractice cases.  Here are two, which both illustrate the issue.  One went to the US Supreme Court (cert denied) and one was just affirmed at the AD level.  Both were brought by dedicated practitioners and both had significant money spent on them.  Both were dismissed.

Krichmar v Scher ;2011 NY Slip Op 02630 ;Decided on March 29, 2011 ;Appellate Division, Second Department   "To dismiss an action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant must satisfy the threshold burden of demonstrating, prima facie, that the time within which to sue has expired, and once that showing has been made, the burden shifts to the opponent to establish that the statute of limitations has been tolled or that he or she actually commenced the action within the applicable limitations period (see Hebrew Inst. for Deaf & Exceptional Children v Kahana, 57 AD3d 734; Savarese v Shatz, 273 AD2d 219, 220). Here, the defendants sustained their initial burden on the motion by demonstrating that the applicable limitations period had expired with respect to all of the alleged acts of legal malpractice (see CPLR 214[6]). In [*2]response, the plaintiff failed to present evidence establishing either that she commenced the action within the applicable three-year limitations period, or that the continuous representation toll applied in this case, since all of the documentary evidence in the record supports the conclusion that the legal representation had ended more than three years before this action was commenced, and there was no mutual understanding of a need for ongoing legal representation in the underlying matter (see Zorn v Gilbert, 8 NY3d 933, 934; McCoy v Feinman, 99 NY2d 295, 306; Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel & Conway, LLP, 52 AD3d 566, 567; Melendez v Bernstein, 29 AD3d 872, 873; Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031, 1032). "

In Mccormick v Favreau;  2011 NY Slip Op 02506; ecided on March 31, 2011 ; Appellate Division, Third Department .  "In 1999, plaintiff Roger McCormick, acting on behalf of plaintiff Marimac, LLC, entered into an agreement to purchase  real property in the Town of Chazy, Clinton County from
defendant James Carter. Plaintiffs' attorney in this transaction was  defendant James Coffey. Carter was represented by defendant William Favreau, an attorney with defendant O'Connell &
Aronowitz (hereinafter O & A). The purchase and sale  agreement included a provision purporting to give plaintiffs a right of  first refusal on two parcels of Carter's property adjoining  plaintiffs' parcel. In 2007, Carter sold one of these parcels, and  plaintiffs commenced an action seeking to enforce the right of first  refusal. The agreement was found to lack an essential term and,  thus, to be void based upon the statute of frauds. This Court  affirmed that determination (McCormick v Bechtol, 68 AD3d  1376 [2009], lv denied 15 NY3d 701 [2010], cert denied ___ US  ___, 131 S Ct 655 [2010]).
In December 2008, plaintiffs commenced this action asserting  claims of fraud against Carter, Favreau and O & A, breach of  contract and negligence against all defendants, legal
malpractice, breach of fiduciary duty and strict liability in tort against  Coffey, Favreau and O & A, breach of warranty of fitness  against Favreau and O & A, and breach of a covenant not to
compete against Carter. Defendants separately moved to dismiss  the complaint. Supreme Court found that all of plaintiffs' claims  against Coffey, Favreau and O & A were time-barred and  dismissed the complaint against them. As to Carter, the court  dismissed all of plaintiffs' claims except for the cause of action  for breach of the covenant not to compete. Plaintiffs appeal fnref='1'>Plaintiffs fail to address in their brief Supreme Court's dismissal of their strict products liability claim; accordingly, any issue with respect thereto is deemed abandoned (see e.g. William J. DeTorres III, M.D., P.C. v Claxton-Hepburn Med. Ctr., 65 AD3d 733, 735 [2009]). and Carter cross-
appeals.

  We agree with Supreme Court's determinations as to the timeliness of plaintiffs' claims. Plaintiffs' claim of legal  malpractice is subject to a three-year statute of limitations which  accrued when the actionable injury occurred — that is, at the time of the  malpractice, not the time of its discovery (see CPLR 214 [6]; McCoy v Feinman, 99 NY2d 295, 301 [2002]). The alleged malpractice — the drafting and review of the defective documents — occurred in 1999, and Supreme Court thus correctly
determined that this claim was time-barred.
 

The decision in Harvey v Greenberg ;2011 NY Slip Op 02546 ;Decided on March 31, 2011 ; Appellate Division, First Department  is the second appellate decision in a new line of cases which turn the "effectively compelled to settle" standard on its head.  Here the question is whether an allouction after settlement of a matrimonial action is subject to the "effectively compelled to settle" analysis or not.  Answer:  not.
 

"Plaintiff's allegations in support of her legal malpractice claim were conclusory, speculative and contradicted by the documentary evidence submitted on the motion to dismiss. The trial judge in the underlying matrimonial action conducted a thorough allocution on the stipulation of settlement. Plaintiff acknowledged that she understood and agreed with the terms of the settlement and knew that it was a full and final agreement. She further stated that her attorney had answered her questions and that she was satisfied with the services he provided. Under these circumstances, the motion court properly dismissed the complaint ."

Reporting obligations, payments of money, and settlement of cases.  These are all regular and usual areas for attorney attention.  In the past, settlement of medical malpractice cases definitely had rules and obligations.  Infants had to get their compromises, the infirm had to get their guardians, many a settlement had to pass judicial scrutiny.

The medical malpractice field, and by extension, the personal injury field where there will be future medical treatments or where medicare has already made payments for medical treatment has come under unusual and significant statutory treatment.  Medicare and health insurers seek reimbursement, and Medicare has statutory rights to money. 

An excellent article in today's NYLJ, "Traps for the Unwary: Defendant's Obligations Under Medicare" by John L.A. Lyddane and Barbara D. Goldberg graphically illustrates the many obligations under federal law for hospitals, physicians and their insurers and attorneys. 
 

"Medical malpractice liability insurers and self-insured entities that ignore the new Medicare reporting requirements do so at their peril. Not only do they face substantial penalties for non-compliance, but if the plaintiff does not reimburse Medicare from the proceeds of a settlement or judgment, the defendant and/or its insurer may be compelled to do so even if payment has already been made to the plaintiff! In such a case, double damages with interest may potentially be imposed.

Accordingly, it is no longer sufficient for defense counsel in a medical malpractice action to be knowledgeable regarding the medical issues in the case, the intricacies of HIPAA and the particular judge's part rules in order to provide adequate representation to his or her client. Defense counsel must now assume the added burden of ensuring that timely and accurate reports are made to Medicare when a case is settled or a judgment is entered, and that adequate provision is made for reimbursement to Medicare"
 

"The reporting obligation was imposed by the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA), and is applicable to liability insurers and self-insured entities as of January 2011. MMSEA does not change the recovery procedures under the Medicare Secondary Payer statute,1 but strengthens the statute and reinforces Medicare's status as a payer of last resort by requiring that defendants and their insurers take the lead in determining and reporting a plaintiff's potential status as a Medicare recipient to the Center for Medicare and Medicaid Services (CMS) within the Department of Health and Human Services.2

Medicare's status as a "secondary payer" means that its obligation is secondary to that of a defendant or a defendant's liability insurer. The reporting requirements, set forth in §111 of the act, are designed to ensure that Medicare will be able to recover any "conditional payments" it previously made from the date of injury that should have been made by a "primary payer," including a self-insured defendant or a defendant's liability insurer.3 MMSEA imposes a draconian penalty of $1,000 a day per claimant for non-compliance.4

The legislation also created the positions of Coordination of Benefits Contractor and Medicare Secondary Payment Recovery Contractor (MSPRC). These entities, essentially, are independent contractors responsible for coordinating the reporting of claims to, and facilitating the recovery of benefits paid by Medicare. The coordination of benefits process identifies primary payers to Medicare for health benefits available to a Medicare beneficiary and coordinates the payment process to prevent mistakes or the unnecessary conditional payment of Medicare benefits. The MSPRC is responsible for determining and recovering the amounts due to Medicare from personal injury claim settlements and judgments."
 

This legal malpractice traces its birth to a 2000 tolling agreement between a long lost law firm, Tenzer Greenblatt and Kramer Levin, which took place in Delaware.  In 1996 investors started what would be a bankruptcy bound law suit over an investment firm. The case is Blank Rome, LLP v Parrish ; 2011 NY Slip Op 30712(U); March 24, 2011; Sup Ct, NY County; Docket Number: 601809/05;Judge: Jeffrey K. Oing

Of relevance to the legal malpractice case was a tolling agreement reached in 2000 which held that any claims that were already too late as of that date would not be tolled, but any new claims after that date would be tolled for at least 120 days.

Of course, in 2002 a case was started against Kramer Levin with Parish using BR., which was dismissed in Supreme Court, New York County.  That dismissal was appealed, and the AD affirmed.  Tenzer Greenblatt's successor, Blank Rome then sued for its legal fees.  The counterclaim against Blank Rome alleges that BR allowed the statute of limitations to expire on claims against KL.

Again a motion to dismiss was successful, but this time the AD reversed,  Now in a third party action agasint other attorneys we see the following:

"the principle is well settled that a law firm sued for malpractice may bring a third-party complaint
seeking indemnification or contribution from a subsequently or  concurrently retained law firm whose negligence has contributed to or aggravated the plaintiff's damages (Soussis v. Lazer, Apthaker, Rosella & Yedid PC, 66 AD3d 993 (2d Dept, 2009); Patterson, Belknap Webb & Tyler LLP v. Bond Street Associates, Ltd.  266 AD2d 125 (1st Dept, 1991)."

Procedure is king in legal malpractice and elsewhere.  How does a good case end up in Civil Court.  Sometimes an inexperienced practitioner, or a pro-se litigant who is trying to save $ 175 might start the case in Civil Court rather than Supreme, and sometimes a judge will transfer the case pursuant to CPLR 325d rather than handle it (or sometimes to punish plaintiff's attorney.)

Here, in Global Bus. Inst. v Rivkin Radler, LLP ; 2011 NY Slip Op 01941 ; Decided on March 17, 2011 ; Appellate Division, First Department  we see plaintiff's attorney successfully get the case back to Supreme Court. 
 

"The motion court improvidently exercised its discretion in denying plaintiff's motion. Leave to amend the pleadings is freely granted, absent prejudice (see Mandel, Resnik & Kaiser, P.C. v E.I. Elecs., Inc., 41 AD3d 386, 388 [2007]; see also Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18 [1981]), and plaintiff has stated, at this juncture, a cognizable claim against defendant law firm for failure to sufficiently advise it of the consequences of the tax escalation clause in the lease it eventually executed with its landlord several months after retaining defendant (see Escape Airports (USA), Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437 [2010]). Furthermore, in view of the foregoing and the additional damages sought, the matter should be transferred to Supreme Court (see Firequench, Inc. v Kaplan, 256 AD2d 213 [1998]). "

Jail over Christmas...is there anything worse?  Well, yes of course there is, yet being jailed for the holidays is pretty bad. That's what happened to plaintiff here.  Was it her fault or her attorneys?

in Minkow v Sanders ;2011 NY Slip Op 02120 ; Decided on March 24, 2011 ; Appellate Division, First Department  we see the fault placed on plaintiff's shoulders and the attorney obtaining dismisal of the legal malpractice case. 
 

"The documentary evidence conclusively disposed of plaintiff's legal malpractice claims (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). The hearing court found that plaintiff's disobedience of the so-ordered stipulation directing her to transfer certain custodial accounts to her husband's attorney to be placed in escrow or immediately liquidate the accounts and transfer the proceeds was willful. In light of such willful conduct, the motion court properly found that plaintiff — not her attorneys — was the proximate cause of her contempt adjudication and the resulting incarceration (see Delfyette v Fisher, 40 AD2d 674 [1972]). We note that letters from the husband's attorneys, which were provided to plaintiff by defendants, unambiguously indicated that plaintiff's compliance with the so-ordered stipulation was a condition precedent to further settlement discussions. Defendants' alleged failure to correct the purge amount set forth in the contempt order to conform to the stipulation was also not a proximate cause of plaintiff's incarceration from December 23 through December 26, since the stipulation identified the amounts in the subject accounts as "approximate current balance[s]," thus recognizing that their values were subject to market fluctuation."

Doctors and lawyers, legal and medical malpractice.  The two fields of law have many similarities, and in this case they are all mixed up.  Doctor hires attorney to handle a purchase of a Co-op for use as a medical office.  It turns out that there is no certificate of occupancy for use as a medical office.  Doctor closes anyway and then pays significant sums to amend the c/o.  Doctor sues attorney.  Doctor loses at trial.

Sarah Stackpole, M.D. v Cohen, Ehrlich & Frankel, LLP ; 2011 NY Slip Op 02137 ; Decided on March 24, 2011 ; Appellate Division, First Department  illustrates the "but for" element of legal malpractice.  Sure, you might prove that the attorney did not advise you about the lack of c/o.  Sure you might prove that it costs a bundle to fix the problem.  Sure, you might prove that it would be a departure not to advise you.  But, can you prove that you would not have bought the co-op anyway?  Here, the doctor could not.  She lost.
 

"The record supports the trial court's finding, based on credibility determinations, that plaintiff failed to prove that defendant did not advise her that her intended use of the apartment was impermissible under the certificate of occupancy (see Garza v 508 W. 112th St., Inc., 71 AD3d 567 [2010]). To the extent that defendant was negligent in failing to further advise plaintiff of the consequences of occupying a cooperative apartment in contravention of the certificate of occupancy, plaintiff failed to prove that, but for defendant's negligence, she would not have purchased the apartment. To the contrary, plaintiff testified that she had been made aware of the "horrors" (including the cost) of amending a certificate of occupancy several years before in connection with an apartment in another building; despite this awareness, she purchased the subject apartment (see e.g. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435-436 [2007]; Orchard Motorcycle Distribs., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292 [2008])."

We discussed Hinshaw & Culbertson, LLP v e-Smart Tech., Inc.; 2011 NY Slip Op 30651(U);
March 18, 2011; Sup Ct, New York County; Docket Number: 113108/09; Judge: Judith J. Gische on the question of dropping a client just before a deadline. That shortcoming was held not to be legal malpractice.  What about unauthorized divulgance of privileged documents or cooperating with an opponent after the romance wears off?  Those allegations lead to a different result.

"Although Smart states that Fitz and Hinshaw breached their fiduciary duty by providing confidential and/or privileged documents to the SEC and other persons, they have not specified, even in the most general way, what kinds of documents they are referring to, with two exceptions, one being a single document attached as an exhibit to Fitz's motion to be relieved as counsel in one of the California cases.  It is unrefuted that she attached this documents, it was obtained by defense counsel in the other California action and that, eventually, the file was sealed by the court because the document was privileged. At the pleading stage, Smart‘s facts support the claim of breach of fiduciary duty asserted as to that document. Other documents readily identified are those Fritz provided to the SEC without Smart’s consent. Though the documents were produced pursuant to a subpoena, that defense can be raised in Fritz and Hinshaw answer."
 

CLE lecturers almost always warn the listener not to sue for fees. They tell attorneys at the lectures that there will be an inevitable legal malpractice counterclaim.  In the case of sole practitioners or small firms, a comparison of their insurance deductible with the fee claim should be made, because they may have to pay the deductible even before they have any possibility of collection.

One legal malpractice claim which comes up regularly is a law firm that takes a case for "investigation" or simply takes a case, and then drops it just before the statute of limitations expires.  This seems to happen more often in medical malpractice.  An expert (at least theoretically) must be on board before bringing the case (certificate of merit) and sometimes attorneys take on a case in the hope of a pre-complaint settlement, or in the hope of getting an expert.  When neither happens, they give the case back to the client.  Is this legal malpractice?  Is a similar situation where the attorneys wait until the very last minute to work on a motion legal malpractice?

In Hinshaw & Culbertson, LLP v e-Smart Tech., Inc.  ;2011 NY Slip Op 30651(U); March 18, 2011
Sup Ct, New York County;  Docket Number: 113108/09;  Judge: Judith J. Gische we see that the latter situation is not a good legal malpractice claim.

"Fritz and Hinshaw have successfully established - and Smart does not disagree -that Fritz and
Hinshaw were discharged as their lawyers August 1, 2008. It is also unrefuted that there was a pending motion in one of the California cases in which Smart’s opposition was due August 4, 2008. Smart’$ argument, that it was negligent for Fritz and Hinshaw to wait until the last moment to work on the motion, which is why they were discharged, does not support a claim for legal malpractice. No deadline was missed. The supplemental claim, that Smart had to scramble to find new lawyers, is also unavailable. To establish a prima facie case of legal malpractice or negligence, the client must plead and prove facts tending to show that the law firm: 1) failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, 2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff and, 3) that “but for” the defendant’s negligence, the plaintiff would have been successful in the underlying matter (Laventure v, Galeno, 307 AD2d
255 [Ist Dept. 2003] ;Wexler v. Shea & Gould, 21 I AD2d 450, 621 NYS2d 858 [Ist Dept. 1995]. The facts do not support any of these elements and the claim for legal expenses spent to hire another attorney is not a malpractice claim. Therefore, Fritz and Hinshaw’s motion to dismiss the legal malpractice claim based upon the failure to timely prepare a response to the motion in the California action granted and that aspect of the malpractice claim is severed and dismissed."

The Elite Models litigation, in which a class action set of models challenged the industry practices on expenses and allocation of fees to the models ended with a group of US District Court cases, a multi-million dollar settlement and a raft of legal malpractice cases which followed.  This case, Pillard v Goodman ;2011 NY Slip Op 01929 ;Decided on March 17, 2011 ;Appellate Division, First Department  is one of them.

Of import is the finding that a conflict of interest, or a violation of attorney disciplinary rules which alone cannot support a law suit, may support liability when malpractice follows.

"This action alleging legal malpractice arose out of defendants' representation of plaintiff in a lawsuit brought by Victoria Gallegos alleging employment discrimination against nonparty Elite Model Management Corp.; plaintiff, a 10% shareholder; and Elite's majority shareholder, director of finance and co-president. A bifurcated trial resulted in a verdict of liability against the Elite defendants and an award to
Gallegos of approximately $2.6 million in compensatory damages and $2.6 million in punitive damages against the corporate defendant. On appeal, this Court affirmed the liability verdict but vacated the damages award and remanded the matter for a new trial on the issue of damages (see Gallegos v Elite Model Mgt. Corp., 28 AD3d 50 [2005]).

The instant complaint states a cause of action for legal malpractice by alleging that defendants were negligent in failing to proffer evidence at trial that plaintiff was no longer president of Elite when Gallegos's employment commenced, had limited authority to respond to Gallegos's complaints, and did not approve of or participate in the termination of Gallegos's employment, and that but for this negligence plaintiff would have been exonerated of liability and would not have incurred damages (see InKine Pharm. Co. v Coleman, 305 AD2d 151 [2003]). Plaintiff also alleges sufficiently that Curtin mishandled the Gallegos in-house complaint and failed to apprise her of Gallegos's early settlement demand in the amount of $50,000 (see Boglia v Greenberg, 63 AD3d 973, 975 [2009]).

The complaint further alleges that defendants' joint representation of all the Elite defendants in the Gallegos
action, in violation of Code of Professional Responsibility DR 5-105 (22 NYCRR 1200.24) (effective through March 31, 2009), divided their loyalties and prevented them from asserting the [*2]defense that plaintiff's co-defendants were the primary, if not the sole, actors in the decision to terminate Gallegos's employment; because of their joint representation, defendants could not request that the jury apportion liability among plaintiff and her co-defendants, resulting in the automatic imposition of joint and several liability on her (see CPLR 1601). While these allegations of a conflict of interest or a violation of attorney disciplinary rules alone could not support a cause of action, liability can follow where the divided loyalty results in malpractice (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 8 [2008]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [2004]). "

Attorneys move around, and law firms morph.  What happens when one attorney is sued for legal malpractice which is said to have taken place at two law firms?  One answer is that both firms may be sued in the main action if plaintiff chooses, another choice is the third party action.  Here, in Tanger v Ferrer ;  2011 NY Slip Op 01954 ;  Decided on March 17, 2011 ; Appellate Division, First Department we see how the procedural aspects might play out.  Questions of successive tortfeasors and the one direction in which liability might flow are not unique to legal malpractice, and seem to flow in the opposite direction as time...later might be liable to earlier, but not earlier to later.

 "In this legal malpractice action, plaintiff alleges that defendant Alfred Ferrer III, when serving as a lawyer for him and his wife, negligently prepared three settlement tenders. Ferrer was employed by third-party defendant DLA Piper US LLP f/k/a Piper & Marbury LLP when he prepared the first two tenders, and by defendant Eaton & Van Winkle, LLP (EV) when he prepared the third tender. Ferrer and EV instituted a third-party action for, among other things, contribution against DLA Piper. DLA Piper moved to dismiss the third-party complaint against it, arguing, in pertinent part, that EV, as a successive tortfeasor, had no right to contribution from it, as prior tortfeasor. We agree.

Where, as here, "the injuries caused by the original and successive tortfeasor are capable [*2]of being separated from or divided between one another, the successive tortfeasor, being liable only for the injuries that tortfeasor caused, has no right of contribution from the original tortfeasor" (Cohen v New York City Health & Hosps. Corp., 293 AD2d 702, 703 [2002])."

The Defendant in this case was a well known (and ground-breaking) legal malpractice attorney who has been in a swirl of late career litigation.  There have been RICO cases, there have been intra-office blow-ups, and herein this case he was sued for legal malpractice.  However, here, all went wrong for plaintiff.

In Callaghan v Curtis ; 2011 NY Slip Op 01786 ; Decided on March 8, 2011 ; Appellate Division, Second Department we see a case dismissed, basically on an attorney's misbehavior at a deposition.

Speaking objections were once the realm of a truly experienced attorney.  That attorney, defending a deposition, would object in a way that either re-phrased the questions, totally confused the record, allowed the witness to infer a better answer (rather than tell the client how to answer) and in general, made the transcript utterly ineffective for trial.  But all that is changing.

Here, plaintiff is non-suited because of the deposition.  "[A] trial court is given broad discretion to oversee the discovery process" (Castillo v Henry Schein, Inc., 259 AD2d 651, 652). Here, the plaintiff clearly violated a prior order of the Supreme Court by failing to bring certain documents to her deposition. Her attorney also made extensive "speaking objections" during the deposition, and the plaintiff herself repeatedly refused to answer clear questions. We conclude that the Supreme Court providently exercised its discretion, upon the defendants' motion pursuant to CPLR 3126 to strike her reply to their counterclaims, by, inter alia, precluding the plaintiff from offering any documents at trial (see e.g. O'Neill v Ho, 28 AD3d 626, 627). "

There are at least three forms of pleading available in a legal malpractice case.  The first is malpractice itself, the second breach of contract and the third breach of fiduciary duty.  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 the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). "To establish causation, a plainitff 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" (id.). "

As we see in Alizio v Feldman ; 2011 NY Slip Op 01776  Decided on March 8, 2011  Appellate Division, Second Department  not all need exist at the same time.  There (although the decision is very opaque on the facts, as are the decisions below) "Accordingly, the Supreme Court properly denied those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging legal malpractice.

However, the Supreme Court should have granted those branches of the defendants' [*2]motion which were for summary judgment dismissing so much of the first, third, and fifth causes of actions as alleged breach of contract as duplicative of the causes of action alleging legal malpractice, as they arose from the same facts and do not allege distinct damages (see Financial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1020; Town of Wallkill v Rosenstein, 40 AD3d 972, 974). In addition, the Supreme Court should have granted those branches of the defendants' motion which were for summary judgment dismissing so much of the second, fourth, and sixth causes of action as sought declaratory relief. Declaratory relief is inappropriate since the plaintiffs have an adequate alternative remedy in the form of a cause of action alleging legal malpractice (see BGW Dev. Corp. v Mount Kisco Lodge No. 1552 of Benevolent & Protective Order of Elks of U.S. of Am., 247 AD2d 565, 568; Apple Records v Capitol Records, 137 AD2d 50, 54). "

Sometimes, its just better not to continue the fight.  Sometimes, when it seems things can't get worse, they might anyway.  In Mizuno v Fischoff & Assoc. ;2011 NY Slip Op 01811 ;Decided on March 8, 2011 ;Appellate Division, Second Department  defendant attorneys had already lost the fight and had been found to be negligent.  Plaintiff's lost their house as a result.
 

So, why not settle?  We don't know, but the Appellate Division made the situation even worse for defendants." 'As a result of the defendants' legal malpractice, which is not contested on this appeal, the plaintiff's house was sold at a foreclosure sale on April 4, 2002. The plaintiff and his wife held title to the subject property as tenants by the entirety and were, thus, each seized of the whole property (see Kahn v Kahn, 43 NY2d 203, 206-207; Stelz v Shreck, 128 NY 263, 266; Paterno v CYC, LLC, 46 AD3d 788, 789). Since the plaintiff owned the entire property, the Supreme Court properly held that he was entitled to recover 100% of the lost equity in the property.

We agree with the plaintiff's contention that May 1, 2003, is not a "reasonable intermediate date" from which to calculate prejudgment interest (CPLR 5001[b]). Instead, we find that April 4, 2002, is a "single reasonable intermediate date" (CPLR 5001[b]) from which to calculate prejudgment interest on the damages awarded in this case. Accordingly, we remit the matter to the Supreme Court, Suffolk County, for a new calculation and award of prejudgment interest, and for the entry of an appropriate [*2]amended judgment."

The Appellate Division added about 10% to the verdict.

Where else in the world of law might a party say that they had definitely made a mistake, and definitely departed from good practice, yet be immune?  We're not talking about an act too many years ago, or an act that was compelled.  Here, in a familiar but fascinating story, attorney  Diarmuid White freely admits that he departed from proper standards in representing a client. 

The story in the NY LJ today by Mark Hamblett tells how a mob related trial ended with only one person convicted.  While attorney White succeeded on murder and  other very significant criminal charges, he failed in the RICO charges.  Now, Michael Yanotti asks the court to give him a new trial on those RICO charges.  Judge Scheindlin turned him down.

"Judge Scheindlin found in Yannotti v. United States, 10 Civ. 2546, that Mr. Yannotti was not prejudiced by Mr. White's error at his 2005 trial.

Mr. Yannotti was the lone defendant convicted in a trial that ended with a hung jury for his co-defendants, including John "Junior" Gotti.

Despite Mr. White's error, he achieved considerable success on other counts, as Mr. Yannotti was acquitted on two murder charges and the allegation he attempted to kill Guardian Angels founder and radio talk show host Curtis Sliwa in 1992 out of revenge for comments Mr. Sliwa had made about the late head of the Gambino crime family, John Gotti.

And post-trial, Judge Scheindlin entered a judgment of acquittal on a substantive racketeering count involving loansharking.

Following his conviction, Mr. Yannotti appealed to the U.S. Court of Appeals for the Second Circuit, which in 2008 held that "the fact that the government did not prove Yannotti's specific knowledge of or participation in each predicate act conducted by other members of the Gambino family does not undermine the sufficiency of the evidence establishing his conviction."

After the U.S. Supreme Court denied his petition for a writ of certiorari in 2009, Mr. Yannotti filed a motion challenging his sentence under 28 U.S.C. §2255 as imposed in violation of his right to effective assistance of counsel."

So, one asks, might he sue his attorney?  The resounding answer is no...no!  A criminal defendant may not sue his criminal defense attorney for legal malpractice until and unless he can show "actual innocence" which generally means reversal, acquittal or exoneration.

In the sister practice of Medical Malpractice much is similar.  The two bodies of law concern the work of professionals, each "treating" or "representing" people.  The laws of negligence apply to both, and both departure and causation must be proved at trial. 

The rules of Summary judgment, well settled, and with a history of their own are widely applied to both bodies of law.  As the statistics show, 95% of all cases are resolved prior to trial, and summary judgment is a significant force in resolution.

Yet, a decision from the Second Department comes as a seismic wave into the rules of summary judgment, with the Appellate Division overruling a well understood principal, and admitting that earlier decisions were so imprecise, that they must be formally overruled.

InStukas v Streiter ;2011 NY Slip Op 01832 ;Decided on March 8, 2011 ;Appellate Division, Second Department ;Leventhal, J., J. the Appellate Division, Second Department holds, in a well reasoned opinion that if defendant makes a prima facie showing that there was no departure, then plaintiff must make a prima facie showing that there was a departure.  If defendant makes a prima facie showing that there was no departure and no causation, then plaintiff must make a prima facie showing that there was a departure as well as causation.  What need not happen is for plaintiff to show both, when defendant only makes a prima facie showing that there was no departure.
 

We don't remember seeing the AD admit that an earlier decision has absolutely no doctrinal basis:

"To require a plaintiff to address both departure and causation in opposing a defendant's physician's prima facie showing as to departure only, conflates these two distinct elements, which have always been treated separately in our jurisprudence involving medical malpractice and negligence in general (see Akins v Glens Falls City School Dist., 53 NY2d at 333; Heller v Weinberg, 77 AD3d 622; Ingrassia v Lividikos, 54 AD3d at 724).

Thus, "candor requires the admission that our past decisions have lacked a precise consistency" (Miller v Miller, 22 NY2d 12, 15). Accordingly, we now clarify that our decisions reflecting the rule stated in Alvarez constitute the more accurate articulation of the applicable standard. To reiterate, in a medical malpractice action, a plaintiff opposing a defendant physician's motion for summary judgment must only submit evidentiary facts or materials to rebut the defendant's prima facie showing (see Alvarez v Prospect Hosp., 68 NY2d at 324). This means that if the defendant demonstrates only that he or she did not depart from good and accepted medical practice, the plaintiff need only raise a triable issue of fact as to whether such a departure occurred. The plaintiff is required to raise a triable issue of fact as to causation only in the event that the defendant makes an independent prima facie showing that any claimed departure was not a proximate cause of the plaintiff's injuries. "

Last year brought estate v. estate attorney legal malpractice after the Schneider decision in the Court of Appeals. Today's NYLJ brings the story of a law suit against Jacoby & Meyers and Whitehaven Financial Group for legal malpractice and usury.  They re-printed the complaint

As all know, there are lending entities that are willing to bet on litigation.  The basic paradigm is that the lender gives a relatively small amount of money to the plaintiff, say $ 30,000.  A high interest rate ensues, but only upon success in the underlying suit.  Hence, the lender takes a bet with the plaintiff on the successful outcome of litigation.  Is this the sport of Kings?

Here, plaintiff sues his attorney Jacoby & Meyer. The facts seem to lean in the attorney's favor. "In the suit filed in Manhattan Supreme Court (See Complaint), Mr. Rodriguez alleges that Jacoby & Meyers; former Jacoby & Meyers' attorney Sheila Rosenrauch; Andrew Finkelstein, the firm's managing partner; and Finkelstein & Partners committed malpractice and breached their fiduciary duty to him. He also alleges that his attorneys violated §487 of the Judiciary Law, which penalizes deceit or collusion by an attorney and willfully delaying a client's suit "with a view to his own gain."

Mr. Rodriguez claims his lawyer at Jacoby & Meyers persuaded him to sign a "misleading" letter containing a statement that said he had been advised it was not in his interest to accept money from Whitehaven. Although he acknowledges signing the letter, he insists that no lawyer explained the terms to him.

Mr. Rodriguez also is suing Whitehaven for unjust enrichment, negligence per se and for violating §349 of the state General Business Law, which prohibits deceptive business practices. He claims the company characterized what was really a loan as an investment to evade the state ban of usury and is seeking recision of the deal.

Mr. Finkelstein called the suit a 'fantasy.'"
 

Once upon a time there were different statutes of limitation for different ways of suing a lawyer.  The Court of Appeals recognized a 6 year contract statute and a 3 year tort statute.  The legislature changed all that, passing CPLR 324(6)  "an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based in contract or tort;."  But (metaphysically speaking) what is malpractice?  Well, as we see inMarte v Graber ;2011 NY Slip Op 21079 ;Decided on March 2, 2011 ;Appellate Term, Second Department
 it is not a simple claim for a return of unused fees.  What is the difference?  We think of it as a return of old money, rather than damages in new and unlimited fresh money.  The Appellate Term writes:

"In this action to recover damages for "money had and received," plaintiff moved, insofar as is relevant to this appeal, for summary judgment. Specifically, plaintiff sought
to recover legal fees he had paid to defendant's decedent, asserting that he had paid a sum of money to decedent as part of an agreement for legal services and, when the relationship had terminated, the decedent had not performed all of the legal services for which he had been paid. Defendant opposed the motion and cross-moved, insofar as is relevant to this appeal, to dismiss the complaint on the ground that plaintiff's cause of action was based on a theory of legal malpractice and was thus time-barred (see CPLR 214 [6]). By order entered May 29, 2009, insofar as appealed from, the Civil Court denied the branch of plaintiff's motion seeking summary judgment and granted the branch of defendant's cross motion seeking the dismissal of the complaint as time-barred.

While plaintiff's claim was denominated an action for money had and received, such an action sounds in quasi contract and arises when, in the absence of an agreement, one party possesses money that in equity and good conscience it ought not retain" (Goldman v Simon Property Group, Inc., 58 AD3d 208, 220 [2008] [internal quotation marks and citation omitted]). [*2]Here, since there was an express agreement between the parties, plaintiff has failed to set forth a viable cause of action for money had and received.

As plaintiff seeks to recover a refund of an alleged overpayment of fees paid to the decedent, affording the complaint a liberal construction, and according its factual allegations every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Minsky v Haber, 74 AD3d 763, 764 [2010]), we find that plaintiff has asserted a breach of contract claim (see Reidy v Martin, 77 AD3d 903 [2010]; Henry v Brenner, 271 AD2d 647, 648 [2000]). Contrary to defendant's argument, plaintiff has not alleged a legal malpractice cause of action, as he does not seek to recover for harm caused by the negligent performance of services rendered by defendant's decedent (see generally Cubito v Kreisberg, 69 AD2d 738 [1979], affd 51 NY2d 900 [1980]; 1650 Forest Ave. Corp. v Farrell Fritz, P.C., 17 Misc 3d 132[A], 2007 NY Slip Op 51999[U] [App Term, 2d & 11th Jud Dists 2007]). Therefore, while defendant properly contends that CPLR 214 (6) governs malpractice cases, regardless of whether based on a theory of contract or tort, this provision is inapplicable to the instant action. "
 

We read through this case looking for the legal malpractice connection with Gibson Dunn.  It took a while.  Take a look at this case just to see how many attorneys are listed below the caption. We think this may be a record.

When is an e-mail discoverable in a legal malpractice case?  In this instance it was not.  The case is IN RE REFCO SECURITIES LITIGATION; KENNETH M. KRYS, et al.,  v. CHRISTOPHER SUGRUE, et al.,07 MDL 1902 (JSR)Applies To:08 Civ. 3065, 08 Civ. 3086; UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 14144

"In response to this subpoena, the Gibson Dunn Objectors produced [*14] two privilege logs and over 137,000 pages of documents, including the Gibson Dunn e-mail here at issue (the "E-mail"). The E-mail is a three-page document that consists of a series of internal Gibson Dunn electronic communications among Gibson Dunn partners Scott Kislin, Mitchell Karlan, Natasha Labovitz, Andrew Levy and Bruce Bolander dated October 30-31, 2005. In general terms, the partners share their preliminary thoughts concerning Gibson Dunn's representation of SPhinX and PlusFunds in various matters, including the Refco bankruptcy proceedings.

On September 17, 2010 Gibson Dunn discovered that the E-mail had been inadvertently produced and notified the Krys Plaintiffs of the inadvertent production; the Krys Plaintiffs subsequently certified that they had destroyed all copies of the E-mail in accordance with the Court's December 15, 2009 Protective Order. Id. On November 15, 2010, Gibson Dunn produced to the Krys Plaintiffs a privilege log identifying "Internal Law Firm Communication/Document; work product" as the basis for withholding the E-mail. Id. The Krys Plaintiffs subsequently argued before the Special Master that the Gibson Dunn Objectors were required to produce the E-mail, [*15] and the Special Master agreed. Gibson Dunn then timely appealed to this Court. In accordance with the federal rules and with the orders of this Court appointing the two special masters in this MDL, the Court reviews the discovery orders of Special Master Hedges for abuse of discretion.

The Gibson Dunn Objectors present two grounds for appeal. First, they argue that the E-mail has no relevance to the instant multi-district litigation ("MDL") in which the Special Master is presiding over discovery and, indeed, is relevant only to the arbitration between the Gibson Dunn Objectors and the Krys Plaintiffs. Gibson Dunn Br. at 1. They contend that "discovery relevant only to claims pending in arbitration is a matter to be decided in arbitration, and that the Krys Plaintiffs cannot end run that truism by serving a subpoena in the MDL." Id. at 2. They further argue that, by seeking to compel the production of information that is irrelevant to the instant action, the Krys Plaintiffs are engaged in an abuse of the federal subpoena power. Id. at 2 (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 352 n.17, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978) ("[W]hen the purpose of a discovery request is to gather information for use [*16] in proceedings other than the pending suit, discovery is properly denied.")).
 

"As non-exclusive examples of the kinds of documents that might be properly withheld under this exception, the court in Sage Realty mentioned "documents containing a firm attorney's general or other assessment of the client, or tentative preliminary impressions of the legal or factual issues presented in the representation, recorded primarily for the purpose of giving internal direction to facilitate performance of the legal services entailed in that representation," Id. at 37-38. The conversations in the E-mail are precisely these kinds of discussions. They are internal conversations among law firm partners setting forth their "preliminary impressions of the legal or factual issues presented in the representation." Id. at 38.

The Special Master does not appear to have concluded to the contrary. See 12/21/10 Transcript at 7 ("These are internal musings."); Transcript at 8 ("these are just partners chatting about something"); Transcript at 11 ("[T]hese, frankly, are musings between counsel and partners at the firm as to how litigation might shape or whatever."). He failed, nonetheless, to apply the Sage Realty exception. This was, again, [*20] an abuse of discretion.
 

Today's NYLJ reports a very large attorney fee arbitration award involving "Schulte Roth & Zabel  which has been awarded $1.7 million in legal fees as a result of a civil suit filed against private investment firm and former client The Belstar Group."

For the commercial details, see the NYLJ article.  Here, it seems that the arbitrators took a good look at the dispute, which ended up as a written retainer agreement v. hearsay and contradictory oral testimony.  Issue:  did the underlying transaction have to close before the law firm was due its fees?

Answer in this case: NO!  "Court papers filed in Manhattan Supreme Court last week show that Schulte entered into an alternative fee arrangement with Belstar's CEO Daniel Yun, a former vice president at Lehman Brothers who founded the private investment firm in 1998. Belstar, which is based in New York and Seoul, manages more than $1.5 billion on behalf of financial institutions around the world.

The fee was tied to the firm's work on something identified in court records as the "Lynt project," a structured finance transaction stemming from the Term Asset-Backed Securities Loan Facility. Schulte, known for its hedge funds and investment management work, assigned structured products and derivatives partner Joseph Suh in New York to draft an engagement letter with Belstar.

The company claimed in arbitration that its agreement with Schulte stated Belstar would owe the firm nothing if the transaction, potentially worth $62.5 million, did not close. However, Schulte was entitled to a percentage of the value of the deal if it did close. In the event of a dispute, both parties agreed to resolve their differences in arbitration.

The Lynt transaction never closed and Belstar did not pay Schulte for its work. But as detailed in court records, the three-member arbitration panel rejected Belstar's argument that Schulte had been hired to handle the Lynt matter on contingency.

According to the panel's interpretation of Belstar's contract with Schulte, it found that the engagement letter contained "no language that would suggest that any aspect of the arrangement is contingent on future events." 
 

Experts are often needed in litigation, and always in medical malpractice litigation.   Med Mal cases are lost and it is sometimes thought that they are lost because of experts.  Was the expert good enough?  Did the expert "give" the departures? 

In Healy v Finz & Finz, P.C. 2011 NY Slip Op 01616  Decided on March 1, 2011  Appellate Division, Second Department  we see an awful choice foisted on parents.  Mother has triplets, one is dying in utero.  The two others are well but very small, and at risk for low birth weight.  What to do?
 

One child was "born with periventricular leukomalacia, a form of cerebral palsy that renders him dependent on others for his basic needs. There is no dispute that the infant plaintiff's condition resulted from him sharing a placenta with his deceased brother.

"The plaintiffs retained the defendant law firm, Finz & Finz, P.C. (hereinafter the firm), to represent them in the underlying medical malpractice action, which they commenced in 1997. The firm's theory of the case was that the doctors should have delivered the surviving babies immediately after learning of Sean's death, and that the delay caused Kevin's injury. Most of the defendants in the medical malpractice action obtained summary judgment dismissing the complaint insofar as asserted against them, and the one defendant who went to trial obtained a directed verdict dismissing the case. The plaintiffs' expert medical witnesses were unable to testify as to when Kevin's injury occurred, acknowledging that it could have been immediately after Sean's death. Thus, the Supreme Court held that the plaintiffs could not establish the proximate cause element of medical malpractice. This Court affirmed (see Healy v Spector, 287 AD2d 541). "

"The plaintiffs thereafter commenced the instant action alleging legal malpractice [*2]against the firm. The firm moved for summary judgment dismissing the complaint, submitting in support the affirmations of three physicians, in which they stated that Kevin's injury was caused by Sean's death. The plaintiffs submitted the affirmation of their own expert physician in response, who stated that, although Sean's death caused Kevin's injuries, the damage would have occurred over time. They also submitted the affirmation of an attorney, who stated that the firm failed to exercise the care and skill commonly exercised by a member of the legal profession, because its attorneys failed to find an appropriate medical expert. The Supreme Court denied the firm's motion for summary judgment dismissing the complaint. We reverse"

""Attorneys are free to select among reasonable courses of action in prosecuting clients' cases without thereby exposing themselves to liability for malpractice" (Iocovello v Weingrad & Weingrad, 4 AD3d 208, 208). Here, the firm established, prima facie, that its choice of experts in this case was a reasonable course of action, and the plaintiffs failed to raise a triable issue of fact in opposition. The conclusory assertion of the plaintiffs' expert attorney—that the firm simply chose the wrong experts—is insufficient to sustain a cause of action alleging legal malpractice (see Dimond v Kazmierczuk & McGrath, 15 AD3d 526, 527). Moreover, the affirmation of the plaintiffs' expert physician was itself conclusory and was, thus, insufficient to raise a triable issue of fact in opposition to the motion for summary judgment (see Brady v Bisogno & Meyerson, 32 AD3d 410). As the firm demonstrated that it could not have proven proximate cause in the underlying medical malpractice action, and as the plaintiffs failed to raise a triable issue of fact in opposition, the Supreme Court should have granted the firm's motion for summary judgment dismissing the complaint (see generally Zuckerman v City of New York, 49 NY2d 557, 562). "

We try to read each new published Appellate Division case in legal malpractice, yet some leave us scratching the head.  In Markowitz v Kurzman Eisenberg Corbin Lever & Goodman, LLP ; 2011 NY Slip Op 01626 ; Decided on March 1, 2011 ; Appellate Division, Second Department  one defendant attorney has won and kept summary judgment against plaintiff.  What were the stakes?  It seems from a quick read that the stakes were half of a child's summer camp costs.  Does the cost of summer camp (which we too remember paying) justify litigation?

""To succeed on a motion for summary judgment, a defendant must establish that the plaintiff is unable to prove at least one of the essential elements of the cause of action" (Dupree v Voorhees, 68 AD3d 810, 811; see Greene v Sager, 78 AD3d 777). The defendant Richard A. Danzig made a prima facie showing that the plaintiff would be unable to prove that, but for the alleged malpractice, he would have prevailed on his claim that he was entitled to the payment of 50% of camp fees for his children in the underlying matrimonial action. In opposition, the plaintiff failed to raise a triable issue of fact. "

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted that branch of Danzig's motion which was for summary judgment dismissing the complaint insofar as asserted against him (see Hamoudeh v [*2]Mandel, 62 AD3d at 949; Orchard Motorcycle Distribs., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292, 293; Olaiya v Golden, 45 AD3d 823, 823-824; Napolitano v Markotsis & Lieberman, 50 AD3d 657, 657-658; Thaler & Thaler v Gupta, 208 AD2d 1130, 1132).
MASTRO, J.P., BALKIN, LEVENTHAL and MILLER, JJ., concur.

We believe in several tropes about legal malpractice.  One is that we live in a legal centric country, and accordingly, legal malpractice is ubiquitous as well as omnipresent.  The second is that legal malpractice cases are treated differently because they are laws written by lawyers, concerning lawyers, and decided upon by lawyers.

We think that Garnett v Fox, Horan & Camerini, LLP ; 2011 NY Slip Op 01589 ; Decided on March 3, 2011 ; Appellate Division, First Department is just such a case.  It seems to us that only in legal malpractice is such strong scrutiny applied to the underlying premises of the case.  In a car case we do not see the court determining who was in the wrong at an intersection, in a products case we do not see the court determining whether the washing machine was dangerous.  Yet here we see Supreme Court determining (we believe from the decision) that the attorneys gave good advice and that they cannot under any circumstances be responsible for Boylan's eventual bankruptcy,
 

The Appellate Division thought differently.  "The amended complaint alleges that defendant was negligent in failing to advise Boylan International properly, that defendant's negligence caused Boylan's loss, and that Boylan sustained actual damages (see Reibman v Senie, 302 AD2d 290 [2003]). Specifically, it alleges, inter alia, that defendant failed to mount a defense to Boylan's tax assessment arrears based on Blackstar Publ. Co. v 460 Park Assoc. (137 Misc 2d 414 [1987] [escalation clauses should not be applied where the tax increase is caused by extensive renovation that does not inure to the tenant's benefit]), negotiated a settlement less beneficial than simply paying the demanded amount, and coerced Boylan into executing the settlement although it knew of the dire consequences thereof. "A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel" (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1990] [citation omitted]). The amended complaint further alleges that, but for defendant's negligence, Boylan would not have had to declare bankruptcy and incur additional attorney's fees. These allegations are sufficient to withstand a CPLR 3211(a)(7) motion. At this stage, plaintiff does not have to show a "likelihood of success," as the motion court found, but is required only to plead facts from which it could reasonably be inferred that defendant's negligence caused [*2]Boylan's loss (see InKine Pharm. Co. v Coleman, 305 AD2d 151 [2003]). Plaintiff also does not have to show that Boylan actually sustained damages but is required only to allege facts from which actual damages could reasonably be inferred (see id.). "

When we see a business start up and close rapidly, we often wonder how could this happen.  When we see a shuttered restaurant we wonder how one entrepreneur's dream could go so wrong.  Here, in Wo Yee Hing Realty Corp. v. Stern, Supreme Court, New York County, Justice Debra James we guess at three things:

a.  This real estate transaction was for millions of dollars;

b.  The sellers had absolutely no idea how to go about selling and buying a like-kind building, and lost $ 4 million dollars in unnecessary tax;

c.  Hired a solo practitioner, who (we guess) had no legal malpractice insurance, did so without a retainer agreement, and did so without any written communications between them.

Result? 

"This is an action seeking damages for alleged legal malpractice with respect to the sale of property, in which plaintiffs claim that they were unable to take advantage of the Internal Revenue Code (IRC) § 1031 like-kind exchange tax deferral because of defendant’s actions. The corporate plaintiff is the owner of the subject property, and the individual plaintiffs are principals of the corporate plaintiff . Defendant is an attorney who alleges that, in 2006, plaintiff Chun Wo Yung (Chun Wo) approached him regarding the Check One: sale of a building that Chun Wo and his  family had owned since  1979. In November, 2006, Chun Wo called defendant to let him
know that he was ready to have a contract drafted regarding the sale of the building, and Chun Wo faxed defendant a letter that Chun Wo had received from a real estate broker who was representing the purchaser. "

"Defendant maintains that throughout the entire process, he constantly informed plaintiffs that he had no experience with 1031 like-kind exchanges, and that they always told him that they would take care of it.

In his EBT, Chun Wo stated, in contrast to defendant’s testimony, that he was unfamiliar with how a 1031 like-kind exchange worked, and that he had never heard of a qualified intermediary. In his affidavit, Chun Wo avers that the corporate plaintiff paid approximately $3,400,000 in federal taxes and approximately $1,700,000 in local taxes.

Legal malpractice is ubiquitous, and yet, prone to many hurdles.  Here, in  HOURANEY,  -against- BURTON & ASSOCIATES, P.C. and BERNARD BURTON,08-CV-2688 (CBA)(LB);   UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 17046; February 21, 2011, Decided we see the plaintiff pro-se lose on summary judgment for lack of standing, and lack of proofs. 
 

Standing is lacking, because plaintiff retained defendants as a LLC.  Now the LLC is dissolved.  Typically, we guess, it is because the member no longer wants to or has paid state taxes for a LLC which is not doing business.  However, we don't know why.  From the decision:

"Houraney first objects [*3] to the Magistrate Judge's determination that he did not have standing to plead a cause of action alleging malpractice against NE Holding. Houraney argues that his right to self-representation is guaranteed; however, Houraney appears to misapprehend the finding of the R&R. Although it is true that Houraney, who is not admitted to practice law, could not represent NE Holdings on his own, see Lattanzio v. COMTA, 481 F.3d 137, 139-40 (2d Cir. 2007) (per curiam), the Magistrate Judge did not hold that Houraney had no right to representation. Instead, the Magistrate Judge held that Houraney had no standing to pursue a claim alleging wrongs to the corporation.

Limited Liability Companies (LLCs) are distinct legal entities. If the defendants committed malpractice against NE Holdings, that is a wrong committed against the LLC, not to Houraney himself. Thus, "[u]nder New York law, 'an individual shareholder has no right to bring an action in his own name and in his own behalf for a wrong committed against the corporation, even though the particular wrong may have resulted in a deprecation or destruction of the value of his corporate stock.'" Solutia Inc. v. FMC Corp., 385 F. Supp. 2d 324, 331 (S.D.N.Y. 2005) [*4] (citing Fifty States Mgmt. Corp. v. Niagara Permanent Sav. & Loan Assoc., 58 A.D.2d 177, 179, 396 N.Y.S.2d 925, 927 (4th Dep't 1977)). The rule is applied with equal force to Limited Liability Companies (LLCs), like NE Holdings. Solutia, 385 F. Supp. 2d at 331 n.1.

Houraney argues that he has standing because the company has dissolved, citing New York Limited Liability Company Law § 703(b). That provision reads: "[u]pon dissolution of a limited liability company, the persons winding up the limited liability company's affairs may, in the name of and for and on behalf of the limited liability company, prosecute and defend suits, whether civil, criminal or administrative . . . ." However, Houraney is not prosecuting this action in the company's name, but in his individual capacity. The Magistrate Judge was correct, therefore, in determining that Houraney does not have standing in his individual capacity to pursue a cause of action alleging malpractice against NE Holding.

Houraney next objects to the Magistrate Judge's finding that plaintiff failed to allege facts to demonstrate how defendants' alleged conduct caused the plaintiff harm. As the Magistrate Judge explained, to succeed on a [*5] legal malpractice claim under New York law, a plaintiff must "plead specific factual allegations establishing that but for counsel's deficient representation, there would have been a more favorable outcome to the underlying matter." Dweck Law Firm LLP v. Mann, 283 A.D.2d 292, 293, 727 N.Y.S.2d 58 (1st Dep't 2001).

The Magistrate Judge found that Houraney had failed to adequately plead causation. Houraney does not object to that determination, which is itself dispositive of Houraney's claim. Instead, Houraney argues that the defendants breached various cannons of legal ethics. Alleging an ethical violation, however, does not relieve plaintiff of the requirement of proving causation. Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 199, 753 N.Y.S.2d 482 (4th Dep't 2003) ("The violation of a disciplinary rule does not, without more, generate a cause of action."); see also The William Kaufman Organization Ltd. V. Graham & James LLP, 269 A.D.2d 171, 173, 703 N.Y.S.2d 439 (1st Dep't 2000); Kyle v. Heiberger & Associates, P.C., 25 Misc. 3d 1218A, 901 N.Y.S.2d 907 (N.Y. Sup. Ct. 2009) (explaining in claim for legal malpractice that "[w]here, as here, plaintiffs do not sufficiently allege the elements [*6] of the claim, dismissal is properly granted-even if there were allegations of ethical violations, and negligence"). Plaintiff cites to Lipton v. Boesky, 110 Mich. App. 589, 313 N.W.2d 163 (Mich. Ct. App. 1981); however, the Court applies New York, not Michigan law in this action."

Mortgages have been with us since the middle ages.  One might not expect a legal malpractice case to arise over the filing of a garden or varietal mortgage, yet...

In U.S. Bank Natl. Assn. v Stein ; 2011 NY Slip Op 01457 ; Decided on February 22, 2011 ; Appellate Division, Second Department we see not one, but two different law firms sued for legal malpractice.  "The plaintiff, represented by Steven J. Baum, P.C., and Steven J. Baum, commenced an action against, among others, Alan C. Stein, Gastwirth, Mirsky & Stein, LLP, and Law Office of Alan C. Stein, P.C. (hereinafter collectively the Stein defendants), to recover damages for, inter alia, legal malpractice in connection with the recording of a certain mortgage. The Stein defendants, who had previously represented the plaintiff's predecessor in interest, commenced a third-party action against Steven J. Baum, P.C., and Steven J. Baum for contribution and/or indemnification. Subsequently, the third-party defendants moved pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint. The Supreme Court, among other things, denied that branch of the motion which was to dismiss the third-party complaint insofar as asserted against Steven J. Baum, P.C. We affirm the order insofar as appealed from. " "The Supreme Court properly determined that the Stein defendants stated a cause of action against the third-party defendant Steven J. Baum, P.C., by asserting, among other things, that Steven J. Baum, P.C., failed to timely correct the legal errors allegedly committed by the Stein defendants in their representation of the plaintiff's predecessor in interest, despite having sufficient time and an opportunity to do. The third-party complaint alleged sufficient facts which, if true, would establish that Steven J. Baum, P.C., may be liable to the Stein defendants for causing or contributing to the plaintiff's alleged damages (see Schauer v Joyce, 54 NY2d 1, 6; see also Frederick v Meighan, 75 AD3d 528, 532). "

Attorneys can easily be substituted in and out of cases, and personal injury matters are no exception.  When client goes from attorney 1 to attorney 2 to attorney 3 the outlook for the case may sometimes be good, and in this case bad.  Client was involved in a car accident, and hired attorney 1 to handle the case.  Attorney 1 did so, but apparently never looked to see who owned the car.  Owner was a rental car company, with apparent unlimited liability and assets.  Attorney 2 takes over the case and finds out at a deposition that defendant did not own the car.  Attorney 2 takes their time and does nothing.  Attorney 2 is substituted out and Attorney 3 immediately makes a motion to add the owner.  Attorney 3 does not succeed.  is there a good cause of action against attorney 2?  The statute of limitations is long over for attorney 1.  Answer ?  No.  in Snolis v Clare
2011 NY Slip Op 01455 ; Decided on February 22, 2011 ; Appellate Division, Second Department
the Court writes:

"The plaintiffs failed to demonstrate their prima facie entitlement to judgment as a matter of law because they failed to establish that any negligence on the part of the defendants in failing to move for leave to amend the complaint in the personal injury action to add the owner as a defendant, immediately upon learning of the owner's identity, was the proximate cause of their alleged damages (see Greene v Sager, 78 AD3d 777; Erdman v Dell, 50 AD3d 627; see also Buran v Coupal, 87 NY2d 173, 180; Flederbach v Fayman, 57 AD3d 474). Accordingly, the Supreme Court properly denied the plaintiffs' motion.

The Supreme Court improvidently exercised its discretion in denying, as untimely, that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against them. While the defendants' cross motion was made more than 120 days after the note of issue was filed and, therefore, was untimely (see Brill v City of New York, 2 NY3d 648), an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds (see Grande v Peteroy, 39 AD3d 590, 592; Lennard v Khan, 69 AD3d 812, 814; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497). In such circumstances, the issues raised by the untimely cross motion are already properly before the court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the merits of the untimely cross motion (see Grande v Peteroy, 39 AD3d at 592). Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party (see CPLR 3212[b]).

The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the legal malpractice cause of action insofar as asserted against them by demonstrating that any negligence on their part did not proximately cause the plaintiffs' alleged damages (see Von Duerring v Hession & Bekoff, 71 AD3d 760). It is true that the more than one-year delay in moving for leave to amend the complaint in the personal injury action to add the owner as a defendant, which was attributable to the defendants' failure to seek that relief, prejudiced the owner and, thus, was a sufficient basis for denying the motion for leave to amend the complaint in the personal injury action (see Snolis v Biondo, 21 AD3d 546). However, the defendants demonstrated that even if they had expeditiously made such a motion in April 2003, immediately upon learning of the owner's identity, the motion could not have been granted. "
 

"Medicine is an art and not a science" is a phrase heard at every medical malpractice case, often in summation.  This is a folksy restatement of the judgment principal.  In law it's slightly different.  An attorney may not be held responsible in legal malpractice for a choice of reasonable strategy, even when its a loser. 

in Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C. ; 2011 NY Slip Op 01346 ; Decided on February 22, 2011 ; Appellate Division, First Department we see one application of the rule.  Here it was a choice of what evidence to place before the arbitrator in a Motor Vehicle arbitration.
 

"Defendant established its entitlement to judgment as a matter of law by demonstrating that the associate who represented plaintiffs in the underlying arbitration was pursuing a reasonable strategy in not submitting repair bills and photographs that depicted damage consistent with the uninsured driver's testimony (see Noone v Stieglitz, 59 AD3d 505 [2009]; Iocovello v Weingrad & Weingrad, 4 AD3d 208 [2004]). In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's argument that the damage depicted in the photographs would [*2]have led the arbitrator to conclude that the uninsured driver was speeding, is insufficient speculation (see Alter & Alter v Cannella, 284 AD2d 138, 139 [2001]; John P. Tilden, Ltd. v Profeta & Eisenstein, 236 AD2d 292 [1997]). "

This would be the place for a witty take-off on an American Express ad, playing off the "Don't leave home without..."  This however, is a story of how a foreclosure case started, went to judgment, and then unraveled.  Attorneys are found to have violated professional standards, and American Express has no attorney in the fight. 

In American Express,  v. Charles Nath, Defendant, 22507/07 ;Civil Court, Richmond County
Judge Philip S. Straniere writes:

"Plaintiff, American Express, commenced this action against the defendant, Charles Nath, alleging that the defendant owed for charges incurred on his credit card. Defendant defaulted in appearing and answering and on January 24, 2008 a default judgment was entered against the defendant in favor of American Express in the amount of $11,794.01 which included interest, costs and disbursements. Plaintiff was represented by Mel Harris & Associates, LLC in this litigation.

As the defendant did not have an attorney, the case appeared on the trial calendar for self-represented individuals initially on January 26, 2010. It was adjourned to May 4, 2010, October 5, 2010 and then to February 8, 2011. On February 8, 2011, counsel for Mel Harris & Associates, LLC appeared and informed the court that they were no longer counsel for the plaintiff. As a result of that, the court on the second call of the calendar, dismissed the plaintiff's action and issued an order vacating the default and permanently lifting any stays and restraining notices previously served on his bank accounts or garnishments served upon his employer.

A review of this file revealed several substantial problems. First, there is no record

*2

of an assignment of the judgment from American Express to LR Credit 14,LLC. If no such assignment had been made and the clerk made an error in the caption, then why was there no attempt by anyone on behalf of the plaintiff to correct the court file? Discussion with the parties at the bench leads to the conclusion that American Express is the proper plaintiff and the parties were proceeding with that as the fact. An order was subsequently issued directing the clerk to correct the paperwork in the file to eliminate LR Credit 14, LLC as the plaintiff.

Second, no matter which is the correct entity to be designated as plaintiff, Mel Harris & Associates, LLC, is listed as the attorney of record. There is nothing in the file to indicate that Mel Harris is no longer counsel. If that law firm has been relieved as attorney of record, some notice should have been given to the court and to the defendant. Although it is a common practice in the consumer debt industry to sell delinquent accounts faster than George Steinbrenner would send a rookie pitcher back to the minors after one bad outing, no such right exists for attorneys.
 

A French artist wants to buy an apartment in New York for a studio and living space. So far, this could be the start of a fairy tale in which the artist comes to NY, works hard, triumphs,  etc.  But, this real estate transaction soon turned to legal malpractice litigation.  One reason for the problems is that the artist nominated another to take care of the transaction, a second reason is that the attorney seems to have done not much work.

In Ehrenhalt v Kinder; 2011 NY Slip Op 30375(U); February 15, 2011; Supreme Court, New York County ;Judge: Martin Shulman we see how things went bad:

"At the time she signed the contract, Shapolsky tendered the contract deposit of $85,000 directly to Kinder. Paragraph 3(i) of the contract confirms the foregoing and provides for plaintiff to pay an additional $20,000 on July 20, 2008, which she did, for a total contract deposit of $1 05,000. The unit required extensive renovation and/or repairs as reflected in a work rider attached to the contract. Kinder undertook to perform such work prior to closing. To finance this work, the contract provides for the immediate release of the contract deposit to defendant Max Management LLC (“Max LLC”).’ Thereafter, pursuant to a separate oral agreement of unspecified date, Ehrenhalt paid additional funds to Kinder- and/or Max LLC in the total amount of $28,597.45 for further renovations not indicated in the contract and not included in the purchase price (the “additional work”).‘  It appears Mehl ordered a title report pertaining to the unit on or about July 11 , 2008 and received it on or about July 24, 2008 (see Exh. 8 to Motion). The title report revealed that co-defendant Maxcine Holder (“Holder”) owned the unit, rather than Kinder, and further revealed the existence of two outstanding mortgages; an outstanding judgment of foreclosure; a lien for unpaid common charges; tax liens; and a certificate of occupancy designating the unit as a doctor’s office (hereinafter collectively referred to as the “title defects” or “title issues”). The total amount of liens exceeded the balance of the purchase price due,

Understandably, the foregoing title defects delayed any possible closing."

"Turning to defendant's conduct after he learned of the title defects, as stated in Logalbo v Plishkiii, Rubano & Baum, supra: While the issue of whether certain conduct constitutes legal malpractice
normally requires a factual determination to be made by a jury . . , , a plaintiff will be entitled to summary judgment in a case where there is no conflict at all in the evidence, the defendant's conduct fell below any permissible standard of due care, and the plaintiff's conduct was not really
involved (citations omitted). Here, once he learned of the title defects, Mehl alleges only that he spoke to Kinder's closing attorney about these issues and was assured they would be resolved prior to closing. He also vaguely alleges he spoke to plaintiff numerous times about the title
defects and she repeatedly indicated her willingness to proceed to closing once title was clear. However, Mehl gives no indication when he spoke to plaintiff or what he claims to have told her, nor does he refute plaintiffs claim that the earliest correspondence documenting such discussions is dated December 2008 (Exh. 15 to Motion), months after plaintiff had already paid $1 33,597.45 to Kinder As to this claim, defendant does not meet his burden of refuting plaintiff's entitlement to summary judgment as to liability. This court finds that defendant's failure to advise plaintiff of the title defects immediately upon learning of same was a breach of his professional duty as a matter of law and that this negligence was a proximate cause of at least a portion of plaintiffs' damages, the amount of which will be determined at trial."

Jousting with the landlord over rent stabilized apartments is a uniquely NYC type of activity. Violations of the rent-stabilization laws may lead to treble damages, and tenants routinely litigate over the actual v. statutory rent, whether there has been an illegal rent increase, and over violations.

Here, in Kyle v. Heiberger, NY Slip Op 32409(u) we see how the process can linger and sometimes go off the rails. Tenant was successful, and eventually obtained a $ 21,000 or so judgment against the landlord in litigation that lasted from 2002 - 2007. That litigation and the legal malpractice case it spawned reached New York and Bronx Counties, took place in L & Court, included two Article 78 cases, and ended up in Supreme Court, Bronx County where the legal malpractice case was recently dismissed.

The legal malpractice case is against Ronald Hart who represented plaintiff from 2002-2007. The gist of this case is that he won the L & T case after much procedural wrangling, and sought attorney fees from the landlords, as plaintiff was permitted. Those legal fees were said to be in the vicinity of $ 426,000. Eventually the landlord agreed to pay $ 190,000 which ended the dispute with a stipulation. Shortly thereafter, tenant started its attempts to vacate the stipulation.

The theory against the attorney was that he settled the case and then withdrew in favor of successor attorney, and breached his fiduciary duty. Defendant Heiberger & Associates PC is a later successor attorney and is now a defendant.

The breach of fiduciary duty claim was dismissed by Supreme Court, on the basis that no damages could be demonstrated, and that when a breach of fiduciary duty claim is based upon the legal malpractice [rather than, for example, a disgorgement of fees for overbiling], then one must demonstrate the "but for" aspect of legal malpractice. Citing Kurtzman v. Bergstol, 40 AD3d 588 (2d Dept,2007) the court held: In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct."

The decision doesn't tell us in what capacity the attorneys represented the client, but they are now in suit over legal fees, with a legal malpractice counterclaim. As we read this case, we wondered whether the time and effort was worth it. Will there ever be a collection of fees?

in Bender, Jenson & Silverstein, LLP v. Walter ; 2009 NY Slip Op 08572 ; ;Appellate Division, Second Department the attorney is seeking fees. Defendant-counterclaimant asked the court to "assign counsel", a sure sign that the client has few funds. The Court declined, and the Appellate Division determined that "on the Court's own motion, the appeal from the first order dated June 6, 2008, is dismissed, on the ground that no appeal lies as of right from an order that does not affect a substantial right of the appealing party (see CPLR 5701[a][2][v]), and we decline to grant leave to appeal." Next, the court looked at plaintiff's claim that she could not afford photocopies.
 

The balance of the decision covers a frequent situation in pro-se representation; getting tangled up in discovery problems. "The plaintiff sought to recover its fee for legal services provided to the defendant, who asserted counterclaims sounding in legal malpractice. In response to the plaintiff's requests for the production of documents, the defendant claimed to be without financial resources to photocopy the requested documents and refused to produce them, in spite of the plaintiff's offer to bear the cost of photocopying. [*2]

Since the defendant failed to establish that she made any effort to comply with the plaintiff's repeated discovery requests, the Supreme Court properly considered her lack of cooperation to be willful and contumacious, and properly conditionally granted the plaintiff's motion to preclude her from introducing the requested documents in evidence (see Kihl v Pfeffer, 94 NY2d 118; D'Aloisi v City of New York, 7 AD3d 750; Brooks v City of New York, 6 AD3d 565; Donovan v City of New York, 239 AD2d 461; cf. Scardino v Town of Babylon, 248 AD2d 371).

In light of the defendant's noncompliance with discovery, the Supreme Court properly denied her motion to quash certain subpoenas which had been served on nonparty witnesses

 

How often it happens that plaintiff learns of mistakes his prior counsel made, but only years later.  Years is the operative word here, as the statute of limitations for legal malpractice is 3 years.  So what happens when the attorney lets plaintiff's claim lapse, more than three years goes by, and plaintiff then learns of it?  Plaintiff loses. 

Here, inMorrison Cohen LLP v Parrish ;  2011 NY Slip Op 30354(U);  February 9, 2011; Supreme Court, New York County; Docket Number: 115815/07; Judge: Joan A. Madden the court for a second time denies plaintiff's motion because too much time has passed.

"In support of the instant motion, defendant attempts to address the statute of limitations issue, by alleging that he did not discover the malpractice until after he terminated plaintiff’s representation. It is well settled, however, that a cause of action for legal malpractice accrues when the malpractice is committed, and not when it is discovered by the client. &g Shumskv v, Eisenstein, 96 NY2d 164, 16 6 (200 1); Wangoner v. Caruso, 68 AD3d 1 , 6 (lst Dept 2009), aff’d 14 NY3d 874 (2010). Under the doctrine of continuous representation, the statute of limitations is tolled while representation on the same matter in which the malpractice is alleged is ongoing. -See Shumsky v. Eisenstein, D uane Morris LLP v. Astar Hold-. Inc., 61 AD3d 418 ( lst Dept 2009). That doctrine, however, does not save defendant’s legal malpractice defense or counterclaim, as it is undisputed that plaintiff rendered no legal services to defendant after March 2004."

In this particular case it is a mortgage broker's work, and the attorney may not get (or keep) legal fees for the work.  In Patricia Dell'Olio, Claimant v. Law Office of Charles S. Spinardi P.C., Defendant, SCR 1199/10;  Civil Court, Richmond County;  we see on way in which an attorney who is doing transactional work is re-case as an unlicensed mortgage broker and required to return legal fees.

"The facts of this case are similar in many respects those in Timofeyev v. Palant & Shapiro, 2010 WL 4904685, 2010 NY Slip Op 20484 (2010). The court will not recite here the detailed analysis presented in that case. In Timofeyev the court made the finding that if the client seeks that attorney's legal advice in regard to a mortgage foreclosure or modification of an existing mortgage, a written retainer is required under the Rules of Professional Conduct (Rule 5.7). The facts of this case indicate that the claimant sought advice from the defendant because he was an attorney. Therefore, a written retainer was required.

A review of the retainer agreement discloses that the services proposed to be rendered are not legal in nature. As pointed out in Timofeyev negotiation and modification of mortgage and similar services are not legal services, they are services a mortgage broker performs and as such a person providing those functions must be licensed pursuant to Banking Law Article 12-D. The expertise of an attorney is necessary at a closing or for the reviewing of mortgage commitment documents where the legal implications of the terms of the loan need to be explained, but negotiation of the terms of a standard home mortgage is not legal services. The documents are on forms dictated by a governmental agency and are uniform so as to assist the sale of the debt in the secondary mortgage market. Does anyone really think that an attorney representing a borrower could negotiate a change in the terms of a preprinted note and mortgage? And that such a request would receive the answer "If you don't like it, don't close." Negotiation of the amount borrowed, the interest rate and the length of the loan does not require an attorney- a fact recognized by New York in its licensing of mortgage bankers and brokers. A description of the services rendered by the defendant discloses that they are not legal in nature. Obtaining documentation as to a clients income and expenses with supporting documentation does not require a law degree. Defendant was not in the business of providing mortgage modification assistance incidental to the practice of law which would constitute an exception to the licensing requirement. He was engaging in the mortgage modification business as a vocation and needs to be licensed in that regard. There is no indication that this defendant has such a license as it is not disclosed any where in the retainer."

"Second, it is difficult to understand what legal services it is contemplated the defendant will be rendering to the claimant. The agreement specifically excludes from the scope of the retainer "the filing of pleadings relating to a mortgage foreclosure defense or a Bankruptcy Petition." These legal services require a separate retainer subject to the charging of additional attorney fees. In spite of not being retained to defend the mortgage foreclosure, although that is the specific reason the claimant contacted the defendant, the defendant submitted an "affirmation of actual engagement" to the Supreme Court, Richmond County indicating he represented the defendants, "Patricia Del Olio a/k/a/ Feliciano and Fred Del Olio"[sic] in the litigation commenced by Richmond County Savings Bank (Index # 131651/09) against them for foreclosure of their mortgage."

Client selection is a fine art, and one in which every attorney must apprentice.  Select the right client - with a good cause of action and of a sane temperament - and all may go well.  Select the wrong client, and a world of abuse and possibly legal malpractice litigation may follow.

Breytman v Schechter ;2011 NY Slip Op 50125(U) ;Decided on February 8, 2011 ;Supreme Court, Kings County ;Schack, J. is one of those cases which end with the Judge ordering that the plaintiff may not file any more papers except with the approval of the administrative judge.  Of course, it gets worse than that.
 

"SCHECHTER, on the next day, advised plaintiff BREYTMAN that he would seek to be relieved. Plaintiff responded with a rambling letter, dated November 31, 2006 [sic], repeatedly accusing SCHECHTER of senility and incompetence, and then in larger print and boldface stating "YOU ARE FIRED" [exhibit D of motion]. Thereafter, on December 7, 2006, plaintiff BREYTMAN served SCHECHTER with a "Notice with Motion to Compel and Cease and Desist," in which he advised SCHECHTER that he would proceed pro se and requested the file and "privileged material" [exhibit E of motion]. Typical of Breytman's abusive behavior is a letter, dated January 2, 2007 [p. 148 of 209 pages attached to February 25, 2009 order to quash the subpoena of December 5, 2008, in Kings County Clerk Minutes for Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY], from BREYTMAN to SCHECHTER, in which BREYTMAN called SCHECHTER, among other things, "incompetent habitual liar," "pure Asshole " and "cretin."

Justice Karen Smith of Supreme Court, New York County, on March 7, 2007, issued a decision and order [exhibit F of motion], in which she: consolidated the two actions; dismissed all malicious prosecution claims; and, permitted the false arrest claim to proceed against the landlord and the building superintendent. Justice Smith, in a separate order the same day, March 7, 2007, relieved SCHECHTER as counsel for plaintiff BREYTMAN. Subsequently, while [*4]plaintiff proceeded as a pro se litigant, the remaining false arrest claim against the non-city defendants was dismissed [exhibit 1 of cross-motion].

Despite being relieved as BREYTMAN's counsel, SCHECHTER's contact with BREYTMAN, as well as BREYTMAN's abusive conduct toward SCHECHTER, did not end. SCHECHTER had the entire file photocopied and available for plaintiff. Plaintiff wanted the original file, despite being informed by Justice Milton Tingling, to whom the case had been reassigned in Supreme Court, New York County, that he was only entitled to a copy of the file. SCHECHTER explained, in ¶ 30 of his affidavit in support of the motion, that "[w]hile I had offered to provide plaintiff with a copy of the file, I did not want to provide him with the original out of concern that he might alter the original documents. In proceedings before the court in the underlying actions, plaintiff submitted copies of my letters which left out words and sentences or were otherwise altered."

On December 5, 2008, long after SCHECHTER provided BREYTMAN with a copy of the file, BREYTMAN served SCHECHTER with a subpoena for the original file, in connection with another of his pro se actions against the landlord, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY, Supreme Court, Kings County, Index No. 2423/06 [exhibit G of motion]. Then, SCHECHTER served an order to show cause [OSC], dated December 12, 2008, to quash the subpoena and for a protective order [exhibit H of motion]. In his affirmation in support of the OSC, SCHECHTER pointed out how BREYTMAN altered documents to place SCHECHTER in a bad light and spent $1,091.34 to have the entire file copied for BREYTMAN. Then, BREYTMAN, in a letter to SCHECHTER, dated December 29, 2008, told SCHECHTER that he had twenty days to deliver "my property" but "[y]ou had chosen death you got no one to blame but yourself I am given another 10 days more days to deliver my property after which you fund how unwise your obtuse decision is [sic] [p. 206 of 209 pages attached to February 25, 2009 order to quash the subpoena of December 5, 2008, in Kings County Clerk Minutes for Kings County, Supreme Court Index No. 2423/06, ALEXANDER BREYTMAN v OLINVILLE REALTY LLC and WEINER REALTY]."

While this issue was pending before Justice Yvonne Lewis, BREYTMAN, in a February 18, 2008 letter to Justice Lewis [exhibit I of motion], admitted that he altered documents to redact privileged material. The same day, BREYTMAN sent a letter to SCHECHTER [exhibit J of motion] in which he told SCHECHTER "[a]s usually you are fat on your mouth short on your feet [sic]," "I will sue" and "show how incompetent you are." Justice Lewis, on February 25, 2009, granted SCHECHTER's OSC to quash the December 5, 2008 subpoena. Further, she ordered that BREYTMAN "shall not file the same or similar applications for relief without the prior written permission of the Court."

Justice Lewis, at the February 25, 2009 oral arguments on SCHECHTER's OSC, told plaintiff not to directly contact SCHECHTER. However, plaintiff BREYTMAN continued to directly contact SCHECHTER with motion papers [exhibit M of motion]. SCHECHTER's counsel sent a letter to BREYTMAN, dated June 18, 2010, advising him not to directly serve SCHECHTER [exhibit K of motion]. In the February 22, 2010 preliminary conference order in the instant action, signed by myself, plaintiff was ordered "to have no contact with defendant directly [exhibit L of motion]." However, plaintiff violated my order by subsequently sending an abusive letter [exhibit N of motion] to SCHECHTER, stating "[t]ake your [threats] and your [*5]family and shove up your ass you dick. I will only serve you. I suppose [being an] asshole runs in the family. I do not recognize your family, get used to it, you ASSHOLE DICKHEAD."

Despite being ordered by Justice Lewis, on February 25, 2009, to "not file the same or similar applications for relief without the prior written permission of the Court," plaintiff commenced the instant action, by filing the summons and his rambling, disjointed verified complaint on January 23, 2010, with eight causes of action, many of them duplicative. Plaintiff seeks, according to the verified complaint: the return of the $7,500.00 retainer; the return of the $1,500.00 psychologist's fee; $5,000,000.00 for breach of contract; $5,000,000.00 "for causing me paint and suffering [sic]"; $10,000,000.00 for punitive damages; and, the return of the original file and all copies of any material in the file. "

Billing disputes between attorneys and clients fuel the legal malpractice cycle.  Attorney seeks to enforce a bill, client responds with a legal malpractice claim, and the litigation clock starts.  Each side seeks and looks for shortcuts, or checkmates.  One checkmate, which may cut off a legal malpractice action at the beginning is the principal of account stated.

In Brooks Banker,v. Esperanza Health Systems, Ltd., , 05 Civ. 4115 (DAB) (JCF) Magistrate James C. Francis writes:
 

"To recover on a claim for an account stated under New York law, the plaintiff must show that: "'(1) an account was presented; (2) it was accepted as correct; and (3) [the] debtor promised to pay the amount stated.'" Camacho Mauro Mulholland LLP v. Ocean Risk Retention Group, Inc., No. 09 Civ. 9114, 2010 WL 2159200, at *2 (S.D.N.Y. May 26, 2010) (alteration in original) (quoting IMG Fragrance Brands, LLC v. Houbigant, Inc., 679 F. Supp 2d 395, 411 (S.D.N.Y. 2009)). A debtor's agreement to pay can be inferred from its failure to raise a timely objection to the amount due. See Wesco Distribution, Inc. v. Anshelewitz, No. 06 Civ. 13444, 2008 WL 2775005, at *6 (S.D.N.Y. July 16, 2008). Conversely, "[a]n allegation of a timely objection to the account, whether ultimately meritorious or not, will generally defeat a summary judgment motion on an account stated." Sid Paterson Advertising, Inc. v. Giuffre Auto Group, LLC, No. 601905/05, 2007 WL 3378349, at *2 (N.Y. Sup. Ct. Oct. 29, 2007) (citing Shea & Gould v. Burr, 194 A.D.2d 369, 371, 598 N.Y.S.2d 261, 262 (1st Dep't 1993)). However, "[u]nsubstantiated claims of oral objections do not create a material issue of fact" sufficient to defeat summary judgment. White Diamond Co. v. Castco, Inc., 436 F. Supp. 2d 615, 624 (S.D.N.Y. 2006); see Lankler Siffert & Wohl, LLP v. Rossi, 287 F. Supp. 2d 398, 408 (S.D.N.Y. 2003) ("conclusory and unsubstantiated" objections to account stated insufficient to defeat summary judgment), aff'd, 125 Fed. Appx. 371 (2d Cir. 2005); Darby & Darby, P.C. v. VSI International, Inc., 95 N.Y.2d 308, 315, 716 N.Y.S.2d 378, 382 (2000) (holding that "selfserving, bald allegations of oral protests were insufficient to raise a triable issue of fact"). The party challenging the account must "raise specific allegations of protest, indicating when, how, and/or to whom objections were made, along with some indication of the content of the conversation(s) had." Goldberg & Connolly v. Hancock Industries, Ltd., No. 11258/06, 2007 WL 1532294, at *2 (N.Y. Dist. Ct. May 29, 2007)."

Magistrate Judge James C. Francis writes in  Brooks Banker,  v.Esperanza Health Systems, Ltd.,  05 Civ. 4115 (DAB) (JCF):

"Brooks Banker, an attorney, brings this action against the defendants, his former clients, for unpaid fees. Mr. Banker now moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on his account stated claims against defendants Esperanza Health Systems, Ltd., Hunt Health Systems, Ltd., P&G Enterprises, Inc., and MHTJ Investments, Inc. (collectively, the "Business Defendants"). For the reasons that follow, I recommend that the plaintiff's motion be granted."

Account stated claims are those where it is said that the biller sent bills and the payor failed to argue or contradict the bills.  When this happens, the courts deem the bill to be undisputed, and often order it paid, even though there are many new disputes about the bill now.

"Whether an attorney discharged without cause is entitled to bring a claim for account stated is a matter of state law that has not been addressed by the New York Court of Appeals. "In the absence of a definitive ruling by the highest court of a particular state, a district court should predict what the highest state court would decide when faced with an undecided issue of state law." Liddle & Robinson, LLP v. Garrett, 720 F. Supp. 2d 417, 424 (S.D.N.Y. 2010) (citing In re Methyl Tertiary Butyl Ether Products Liability Litigation, 415 F. Supp. 2d 261, 268 (S.D.N.Y. 2005)).

In Liddle, the Honorable Peter K. Leisure, U.S.D.J., engaged in such an analysis and concluded that "where an attorney allegedly discharged without cause seeks unpaid legal fees pursuant to a blended contingency and hourly fee agreement, New York's highest court would find, as this Court does, that the attorney is limited to seeking relief in quantum meruit." Id. at 425. Based on this conclusion, Judge Leisure dismissed breach of contract and account stated claims asserted by an attorney against his former client where the attorney had been terminated without cause. Id. at 425-27."

"More compelling is the plaintiff's contention that Judge Leisure's construction of the New York cases upon which he relied was overbroad. While Rubenstein and Sae Hwan Kim both state that an attorney terminated without cause is entitled to recover in quantum meruit, neither holds that such an attorney is precluded from asserting an account stated claim. See also Schneider, Kleinick, Weitz, Damashek & Shoot v. City of New York, 302 A.D.2d 183, 186, 754 N.Y.S.2d 220, 223 (1st Dep't 2002) (identifying remedies for attorney discharged without cause as retaining lien, charging lien, and quantum meruit, but not addressing account stated); Butler, Fitzgerald & Potter v. Gelmin, 235 A.D.2d 218, 218-19, 651 N.Y.S.2d 525, 527 (1st Dep't 1997) (same).

The cases that do address account stated claims hold unequivocally that such claims may be brought by attorneys discharged without cause. For example, in Ferraioli ex rel.

*8

Suslak v. Ferraioli, 8 A.D.3d 163, 164, 779 N.Y.S.2d 72, 73 (1st Dep't 2004), the court first found that the petitioner, a law firm, had been terminated without cause and then went on to hold that it was entitled to summary judgment on its account stated claim. Similarly, in Zanani v. Schvimmer, 50 A.D.3d 445, 446, 856 N.Y.S.2d 65, 66 (1st Dep't 2008), the court granted summary judgment to a discharged attorney on an account stated claim, which included bills received by the clients after the attorney was terminated. In Bartning v. Bartning, 16 A.D.3d 249, 249-50, 791 N.Y.S.2d 541, 541-42 (1st Dep't 2005), the court overturned a ruling rejecting an account stated claim based on an invoice sent after the attorney had been terminated. Finally, in Salans Hertzfeld Heilbronn Christy & Viener v. Between the Bread East, Inc., 290 A.D.2d 381, 736 N.Y.S.2d 665 (1st Dep't 2002), the court explicitly addressed the argument advanced by the Business Defendants here. It stated:

The motion court, in denying defendants' motion to dismiss, properly rejected their contention that the termination of plaintiff law firm's services relegated plaintiff to recovering in quantum meruit for services rendered to defendants. Termination does not necessarily result in such remedial limitation and, indeed, we have specifically approved recovery by attorneys on an account stated theory for pre-termination services billed on an hourly basis at a contractually agreed rate.

Id. at 381, 736 N.Y.S.2d at 666 (citations omitted); see also Steven Wechsler, Professional Responsibility, 53 Syracuse L. Rev. 737, 760 (2003).Thus, whatever limitations there may be in New York law to the ability of a lawyer discharged without cause to recover under breach of contract or other theories, they do not preclude a claim for account stated. It is therefore appropriate to turn to the specific claims asserted in this case."

Clients often believe that their attorney was "bought off" and sometimes stretch the facts to fit a conspiracy theory.  Most of the time there is simply no institutional way that "buying off" could even have happened.  Sometimes we are non-plussed at the actions of attorneys.  We wonder, in this case, why the attorney didn't tell the client that the buyer of real property had not sent a certified check, as per the contract, and why the attorney did not tell the client that the check was refused for insufficient funds.  What can their explanation be?

In Bilin v Segal, Goodman & Goodman, LLP ; 2011 NY Slip Op 00995 ; Decided on February 8, 2011 ; Appellate Division, Second Department  the court writes:
 

"The plaintiffs retained the defendant Segal, Goodman & Goodman, LLP, and one of its principals, the defendant Frank Goodman (hereinafter together the law firm), to represent them and three other individuals in the sale of six adjacent properties in Brooklyn to a real estate developer, the defendant Criterion Group, LLC (hereinafter Criterion). Each of the six contracts provided that the purchase price of each property was $1,250,000, of which a $62,500 down payment for each property was payable upon execution of the contract, with the $1,187,500 balance for each property due at closing. Although the contracts were executed in early June 2004, the plaintiffs contend that unbeknownst to them, Criterion did not authorize the law firm to deposit its uncertified check in the sum of $375,000, representing the collective down payment for all six properties, until sometime in July 2004. The plaintiffs further assert that the law firm did not inform them for at least two months that when the law firm deposited Criterion's check in July 2004, it was returned for insufficient funds, and thereafter, Criterion never followed through on its promise to the law firm to provide it with a certified replacement check for the down payment."

"According to the plaintiffs, during this time period, with the law firm's assistance, they pursued proceedings to ensure that tenants vacated their respective properties, as required under the contracts of sale executed between them and Criterion, and lost an opportunity to sell the properties to another developer at essentially the same purchase price offered by Criterion. They further contend that since Criterion never remitted a down payment, they were unable to retain such funds as liquidated damages when the sale of the properties to Criterion was never completed. The properties were ultimately sold to a third party, but in the interim, the plaintiffs contend that they were unable to rent the properties. "
 

"Here, contrary to the assertion of the law firm, it failed to meet its burden of establishing its entitlement to judgment as a matter of law (see Greene v Sager, 78 AD3d 777; Eisenberger v Septimus, 44 AD3d 994). Accordingly, the Supreme Court properly denied the law firm's cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. "
 

The Redskins!  6 Flags!  Cadwalader, Wickersham & Taft !  Legal malpractice cases do not get much higher visibility than this case. Nate Raymond of the  The New York Law Journal reports that  "Redskins owner Daniel Snyder has sued Cadwalader, Wickersham & Taft for $13 million over advice it gave on an investment bank's fee during a proxy fight at Six Flags Inc. in 2005."  The legal malpractice claim, filed in Supreme Court, New York County "followed an October appellate ruling that the company owed UBS A.G. $8 million for its work on the Six Flags matter. While Red Zone said its lawyers at Cadwalader had claimed a contract they secured would limit the fee to $2 million, it did not."

"According to the malpractice complaint in Red Zone, LLC v. Cadwalader, Wickerham & Taft, 650318/2011, Red Zone hired Cadwalader in mid-2004 to advise it on its investment in and possible acquisition of Six Flags. Mr. Block, one of the top rainmakers at the New York firm and a veteran of mergers and acquisitions, was the partner in charge of the engagement, the complaint said.

At the start of 2005, Red Zone held 8.76 percent of the voting stock in the company with shares it purchased the year before for $34.5 million. Red Zone believed Six Flags was underperforming and wanted to see about raising money to take it over.

Red Zone brought in UBS to advise on the investment, with Cadwalader negotiating the engagement agreement. The contract called for UBS to receive a $10 million fee if the acquisition succeeded.

But Six Flags had an agreement with its bondholders that all of its $2.6 billion in debt would need to be paid immediately if someone acquired the company or more than 34.9 percent of its shares. UBS could not raise enough money to cover that payout.

Red Zone opted instead for a proxy contest. Before it moved, it told Mr. Block that it was unwilling to pay the $10 million fee to UBS if Red Zone could not secure a majority of the voting stock.

Instead, Red Zone told Mr. Block to have Cadwalader negotiate a new deal with UBS limiting the fee to no more than $2 million, the complaint said."
 

Real Estate commerce is a big time sport in New York, and in Manhattan might be considered a lifestyle unto itself.  The buying and selling of cooperative and condominium apartments goes on in an endless swirl, good or bad economic times notwithstanding.

One element of the purchase is an educated or studied prediction of future costs.  One may always expect an upward arc to maintenance or common charges; inflation is a constant pressure.  However, 14-142% increases are a nightmare.  That's what happened in Hefter v Citi Habitats, Inc.; 2011 NY Slip Op 00733 ; Decided on February 8, 2011 ; Appellate Division, First Department . 
 

This was, at a minimum, the largest purchase that buyer made for a long time, perhaps the largest in his lifetime.  Why did he take the attorney recommended by the broker?  We don't know, but he turned and sued the attorney for not advising buyer of potential increases.  However, it seems that attorney himself did not know, and no reasonable inquiry would have predicted actual future increases.  Thus case dismissed.

"Plaintiff's allegations of legal malpractice against Nihamin, the attorney who represented him in the purchase of a cooperative apartment owned by the Greens, are conclusory and were properly dismissed. There is no allegation that Nihamin had notice of any facts which might reasonably have caused him to question the veracity of the managing agent's response to a question about future maintenance increases. The "selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 [1985]), and plaintiff acknowledges that further inquiry by Nihamin would have been futile. Furthermore, plaintiff's contention that Nihamin "had a potential conflict of interest" because he was recommended by the broker is, by itself, insufficient to state a claim for legal malpractice ."

Plaintiff is a corporation,and it files a Chapter 11 petition.  It then brings a traditional legal malpractice action in state court.  Plaintiff commences the action against Defendant DLA Piper LLP and then itself removes the case to US District Court.  The matter then is transferred to Bankruptcy Court.  How does this play out?  Why does plaintiff want the case in Bankruptcy Court?

in In re JOSEPH DELGRECO & COMPANY, INC., Debtor. JOSEPH DELGRECO & COMPANY, INC. And JOSEPH DELGRECO, Plaintiffs, - against - DLA PIPER LLP (US), Defendant.;10 CV 6422 (NRB);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ; 2011 U.S. Dist. LEXIS 10972;January 26, 2011, Decided
 

"District courts have original jurisdiction over "all civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C. § 1334 (b). However, a district court may refer such matters to the bankruptcy courts. 28 U.S.C. § 157(a) Indeed, in the Southern District of New York, the district [*5] court automatically refers all such cases to the bankruptcy court in the first instance. See Official Comm. of Unsecured Creditors of the VWE Grp., Inc. v. Amlicke (In re VWE Grp., Inc.), 359 B.R. 441, 446 (S.D.N.Y. 2007); Kenai Corp. v. Nat'l Union Fire Ins. Co. (In re Kenai Corp.), 136 B.R. 59, 60 (S.D.N.Y. 1992).

District courts also have authority to "withdraw . . . any case or proceeding referred [to the bankruptcy court] on its own motion or on a timely motion of any party, for cause shown." 28 U.S.C. § 157(d); see also Orion Pictures Corp. V. Showtime Networks, Inc. (In re Orion Pictures Corp.), 4 F. 3d 1095, 1101 (2d Cir. 1993), cert. denied 511 U.S. 1026, 114 S. Ct. 1418, 128 L. Ed. 2d 88 (1994) Although section 157 (d) does not define "cause," the Second Circuit has instructed district courts to consider: (1) whether the claim is core or non-core; (2) whether the claim is legal or equitable and thus whether a right to jury trial exists; and (3) whether other factors -- including the efficient use of judicial resources, delay and cost to the parties, uniformity of bankruptcy administration, and the prevention of forum shopping -- counsel in favor of withdrawal. In re Orion, 4 F. 3d at 1101; see also South St. Seaport Ltd. P'ship v. Burger Boys, Inc. (In re Burger Boys, Inc.), 94 F.3d 755, 762 (2d Cir. 1996); [*6] Northwest Airlines Corp. v. City of Los Angeles (In re Northwest Airlines Corp.), 384 B.R. 51, 56 (S.D.N.Y. 2008)"

'In this Circuit, "[a] district court considering whether to withdraw the reference should first evaluate whether the claim is core or non-core, since it is upon this issue that questions of efficiency and uniformity will turn." In re Orion, 4 F.3d at 1101. This evaluation is relatively straight-forward. [*7] "A proceeding that involves rights created by bankruptcy law, or that could arise only in a bankruptcy case, is a core proceeding." United Orient Bank v. Green (In re Green), 200 B.R. 296, 298 (S.D.N.Y. 1996) (collecting cases); see also Kerusa Co. LLC v. W10Z/515 Real Estate Ltd. P'ship, 04 Civ. 708 (GEL), 2004 U.S. Dist. LEXIS 8168, 2004 WL 1048239, at *2 (S.D.N.Y. May 7, 2004); 1800Postcards, Inc. v. Morel, 153 F. Supp. 2d 359, 366-67 (S.D.N.Y. 2001) By contrast, "[a]n action that does not depend on the bankruptcy laws for its existence and which could proceed in a court that lacks federal bankruptcy jurisdiction is non-core." In re Green, 200 B.R. at 298 (collecting cases); see also Kerusa, 2004 U.S. Dist. LEXIS 8168, 2004 WL 1048239, at *2; Morshet Israel, Inc. v. Irmas Charitable Found. (In re Morshet Israel, Inc.), No. 97 Civ. 1852 (SHS), 1999 U.S. Dist. LEXIS 4127, 1999 WL 165699, at *2 (S.D.N.Y. Mar. 24, 1999)."

"First, withdrawing the reference at this stage in the adversary proceeding would promote judicial economy. Because the malpractice claims against DLA Piper are non-core, the case must ultimately be tried by this Court or by a state trial court. Thus, the efficiency question reduces to whether judicial economy is served by permitting the bankruptcy court to oversee discovery and other pre-trial proceedings. Here, plaintiffs do not assert, credibly or otherwise, that the bankruptcy court is particularly familiar with the facts that underlie the legal malpractice claims or better equipped to handle any pre-trial proceedings. Accordingly, we cannot conclude that retaining the reference until the case is trial-ready would further judicial economy.

Second, plaintiffs have not argued that withdrawing the reference would delay the case or would result in excess costs to the parties. Thus, we cannot reasonably conclude that withdrawing the reference now, as opposed to at a later date, would burden the parties [*14] with delays or additional expenses.

Third, withdrawing the reference would not undermine uniform administration of the law. This case involves state law claims, which arose prior to the bankruptcy filing, and which do not raise substantive issues of bankruptcy law. "

There are a large number of cases in which plaintiff loses the capacity to sue a prior attorney in legal malpractice because in the interim, plaintiff has filed for bankruptcy.  Any claim, even inchoate, that a petitioner in bankruptcy has at the time of filing a Chapter 7, becomes part of the bankrupt's estate and hence may be administered by the Trustee.  The trustee must take every claim  including one not yet in suit for potential pre-petition bankruptcy, as a potential asset of the estate and try to turn it into money.  In Strujan v Tepperman & Tepperman, LLC. ; 2011 NY Slip Op 30211(U); January 28, 2011; Sup Ct, New York County ;Docket Number: 401164/2010 ;Judge: Jane S. Solomon we see one such typical outcome.

"Tepperman moves f o r summary judgment on the ground that filed for bankruptcy, Strujan lacked the capacity to commence a lawsuit in her individual capacity, so that her malpractice claim must be dismissed because she cannot establish that she would have prevailed in the underlying action.  The commencement of a bankruptcy case creates a  bankruptcy estate, which gains control over the property of the  debtor. When Strujan filed for bankruptcy in 2005, the claim
arising from her 2003 injury became the property of her estate.  "[The failure to schedule a legal claim as an asset in a  bankruptcy proceeding deprives the debtor of standing to raise it
in a subsequent legal action" (Barranco v. Cabrini Medical Center , 50 AD3d 281 (1st Dept, 2008)

Upon her discharge, the claim does not revert to Struhan, because "[i]f a claim owned by
a bankrupt is of value, his creditors are entitled to it, and he cannot, by withholding knowledge of its existence from the trustee, obtain a release from his debts and still assert title to--and collect upon--the claim for his own benefit'' (Ortiz v.New York Medical Group PC , 55 AD3d 509 [l" Dept., 2008.  Accordingly, Strujan could not have brought the personal injury lawsuit in her individual capacity. '

This case sheds a light on how personal injury firms get, evaluate and reject clients.  Likely unknown to the public, PI and Med Mal firms often "take" a case by having a Blumberg retainer signed which might have the language "for investigation" or "for medical records" or some other modifier.  The attorneys then spend some time getting records, reviewing accident reports, and then, often just days prior to the statute of limitations running whether they will, in fact, take the case.  In the Med Mal world, whether the firm obtains an expert will be the deciding factor.  An expert is "required" for the Certificate of Merit. 

Here, in Depouli v Barasch McGarry Salzman & Penson;;2011 NY Slip Op 30163(U); January 24, 2011; Supreme Court, New York County; Docket Number: 150123/10; Judge: Eileen A. Rakower the attorneys recruited clients through a Bar Association "Information" Session, signed plaintiff up, waited until the  88th day or so, and then sent a rejection letter.  A notice of claim was due several days later.

"Plaintiff, along with other potential plaintiffs, met with Michael Barasch from BMS&P, and was  informed that BMS&P was prepared to represent him. By letter, dated June 10, 2008, sent via Federal Express, BMS&P informed plaintiff that: after careful review and analysis of the facts and circumstances surrounding the March 15,2008 crane collapse, we have decided not to pursue a claim against the City of New York. We certainly welcome the opportunity to represent your interests against the construction companies that operated the crane, as well as other responsible parties 

 The letter concludes with the following:
AGAIN, PLEASE UNDERSTAND THAT WE WILL NOT BE
FILING A NOTICE OF CLAIM AGAINST THE CITY OF NEW
YORK FOR YOU IN THIS MATTER. OTHER ATTORNEYS
MAY HAVE A DIFFERENT OPINION AND WE ENCOURAGE
YOU TO GET A SECOND OPINION IF YOU ARE DESIROUS
OF PROCEEDING WITH A CLAIM AGAINST THE CITY.
PLEASE NOTE THAT YOU MUST FILE A NOTICE OF CLAIM
ON OR BEFORE JUNE 13,2008. IF YOU FAIL TO DO SO, YOU
WILL BE JEOPARDIZING YOUR RIGHTS AGAINST THE
CITY. FOR YOUR CONVENIENCE, WE ARE ENCLOSING A
BLANK NOTICE OF CLAIM WHICH YOU CAN COMPLETE
AND FILE ON YOUR OWN. PLEASE DO SO NO LATER THAN
JUNE 13, 2008. YOU CAN FILE IT EITHER IN PERSON
(WHICH WE RECOMMEND) OR BY MAILING IT BY THIS
FRIDAY, JUNE 13TH, CERTIFIED MAIL RETURN Receipt
REQUEST[sic] TO EITHER:
The New York City Comptroller OR Michael Cardozzo, Esq., Corporation
1 Centre Street, Room 629
New York, NY 10007
Counsel
100 Church Street
New York, NY 10007

Appended to the letter is a notice of claim form wherein the following sections have been filled in by BMS&P: Section (2) “The nature of the claim,” Section (3) “The time, when, the place where, and ~e manner in which the claim arose,” and Section (4) “The items of damage or injuries claimed . . -” Left blank is Section (1) “The name and post-office address of each claimant and of claimant’s attorney,” and there is a blank space provided in Section 4 for plaintiff to fill in his name. Also
included with the letter is a Verification Form, that requires a signature and notarization.
 

On June 28, 2008, plaintiff signed a retainer agreement with BMS&P. In a letter, dated July 25,2008, BMS&P requested that plaintiff forward any receipts, paid bills, and the names and addresses of any doctors that he saw after the accident. By letter, dated November 14, 2008, BMS&P informed plaintiff that, after “careful consideration,” it would not be representing him at all.

"As to the first allegation, BMS&P’s choice to not pursue claims against the City, but rather to  recover solely from the construction companies, does not support a claim for malpractice. “Selection of one among several reasonable courses of action does not constitute malpractice.” (Rosner v. Paley, 65 NY2d 736,73 8[ 1985]).“Neither an error in judgment, nor in choosing a reasonable course of action constitutes malpractice.” (Hand v. Silberman, 15 AD3d 167[ 1 st Dept. 2005)

Further, the June 10, 2008 letter conclusively establishes a defense to the malpractice claim. BMS&P explicitly states several times that a notice of claim must be filed by June 13, 2008. BMS&P not only appended a notice of claim and a verification form to the letter, but it also filled out the notice of claim for plaintiff,  save for fie blank spaces left for plaintiffs name, his counsel’s name, and their respective addresses. Additionally, BMS&P lists the addresses that plaintiff may send
the notice to, as well as informing plaintiff of the form of mailing required. Also, BMS&P  recommends plaintiff drop off the notice of claim in person. Plaintiff does not claim he received this letter after June 13,2008.

Large scale legal malpractice cases (greater than $ 10 Million dollars) often engender highly technical motion practice.  Here, in Ableco Fin. LLC v Hilson ;2011 NY Slip Op 00566 ;Decided on February 1, 2011 ;Appellate Division, First Department  we see the aftermath of a bankruptcy - reorganization - take over gone bad.  The figures are staggering,  although we must admit that big number legal malpractice cases seem to be more and more prevalent.
 

Plaintiffs won this motion before Justice Kornreich, but now lose one arm of the negligence claims.  The AD1 decision surgically dissects out whether a certain loan and security transaction potentially violated bankruptcy rules, and if it did not, why it should be dismissed.

"The allegations that defendants failed to advise plaintiff that the acquisition documents permitted the borrower to have credit card sales proceeds deposited into bank accounts over which the retailer retained control and that there was a significant risk that the retailer would use these deposits to set off its own expenses rather than to repay the loan are sufficient to allege that defendants "failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession" (Arnav Indus., 96 NY2d at 303-304; Camarda, 167 AD2d at 152). Defendants' contention that the alleged "improper conduct" of the retailer was an unforeseen intervening cause of plaintiff's loss is unavailing at this juncture (see Garten v Shearman & Sterling LLP, 52 AD3d 207 [2008]).

However, documentary evidence establishes a conclusive defense to the allegation that defendants' failure to include in the original security agreement an express obligation that the borrower sign control account agreements raised the "specter" of a preferential transfer challenge to a $28.5 million loan repayment the borrower made within 90 days of filing for bankruptcy. [*2]The documents show that on August 26, 2008, the borrower granted plaintiff a security interest in all its deposit accounts and cash, and that on September 12, 2008, plaintiff executed an agreement that required the bank to honor all instructions it received from plaintiff, but not from the borrower, concerning that account. Thus, a security interest in the account was transferred to plaintiff on August 26, 2008 and was perfected on September 12, 2008 — within 30 days of the transfer. Pursuant to bankruptcy law, if the security interest is perfected within 30 days of the transfer, then the transfer is deemed to have been made when the security interest was created (see 11 USC § 547[e][2][A]). Since the transfer is deemed to have been made on August 26, 2008, it was not "for or on account of an antecedent debt owed by the debtor before such transfer was made" — one element required to establish a voidable preference (see id. § 547[b][2]). Thus, no voidable preference was established (id. § 547[b]). "

Transactional attorney engaged in lending deals gets a release from the parties.  Of course, litigation between the parties ensues, and the attorneys get roped in.  When and under what circumstances is the release good?  Does there have to be consideration from the attorney to the parties?  Must it be a real exchange of $$ ?

in Seaview Mezzanine Fund, LP v Lopresti ;2011 NY Slip Op 30102(U);;January 14, 2011;n Supreme Court, New York County; Docket Number: 105540/2009; Judge: Louis B. York writes:

"Seaview next argues that the release agreement is unenforceable for lack of consideration because Great Eastern breached the release agreement subsequent to signing it. See Plaintiffs Memorandum of Law in Opposition, at 8-9. The LoPresti defendants reply that this argument is unavailing pursuant to General Obligations Law  15-303, which specifically provides that a release shall nor fail for lack of consideration. See Defendants’ Reply Memorandum, at 9- 1 1. The
LoPresti defendants are correct. Under to General Obligations Law  15-303: A written instrument which purports to be a total or partial release of all claims, debts, demands or obligations, or a total or partial release of any particular claim, debt, demand or obligation, or a release or discharge in whole or in part of a mortgage, lien, security interest or charge upon personal or real property, shall not be invalid because of the absence of consideration or of a seal [emphasis added],
The Appellate Division, First Department, routinely enforces this statute in a wide variety of contexts. See e.g. Angel v Bank of Tokyo-Mitsubishi, Ltd., 39 AD3d 68 (1st Dept  2007); Collins v E-Magine, LLC, 291 AD2d 350 (1st Dept 2002); Mergler v Crystal Properties Associates, Ltd., 179 AD2d 177 (1st Dept 1992). Therefore, the court rejects Seaview’s second opposition argument, and finds that Seaview’s complaint should be dismissed on the ground that all of the causes of
action set forth therein are barred by the express language of the release agreement.

Here is a short, pungent and dispositive decision by the Appellate Division, Second Department in Zito v Fischbein Badillo Wagner Harding  ; 2011 NY Slip Op 00285 ; Decided on January 20, 2011 Appellate Division, First Department.
 

We've seen a "charging lien" utilized as res judicata against a subsequent legal malpractice case, but the use of a "retaining lien" is much more rare.  Presumably, there was litigation in which the Court also determined that fees were actually due to the law firm, and not simply that the law firm had the right to retain files pending a later determination.

"Plaintiff is collaterally estopped from seeking a declaration that he had cause to terminate his attorney-client relationship with defendant Nimkoff Rosenfeld & Schechter (the third cause of action) by this Court's order on a prior appeal, which implicitly determined that defendant was not discharged for cause, because in fact it was not discharged at all but voluntarily withdrew (see 58 AD3d 532 [2009]). Any other construction of the order would be contrary to law, since an attorney discharged for cause "has no right to compensation or to a retaining lien" (Teichner v W & J Holsteins, 64 NY2d 977, 979 [1985]). The issue of discharge that plaintiff raised in his legal malpractice action is identical to the issue addressed by this Court in the prior appeal of the original action. Indeed, during the prior appeal, plaintiff asked this Court to take judicial notice of the malpractice action he commenced in Nassau County, and fully briefed his malpractice claims.

The second cause of action, alleging legal malpractice, is barred under the doctrine of res [*2]judicata by the court's imprimatur of a retaining lien (see Kinberg v Garr, 28 AD3d 245 [2006]; Molinaro v Bedke, 281 AD2d 242 [2001]; Summit Solomon & Feldesman v Matalon, 216 AD2d 91 [1995], lv denied 86 NY2d 711 [1995]; see generally Blair v Bartlett, 75 NY 150, 154 [1878]). "

The question of whether there is a different statute of limitations for fraud or breach of contact when dealing with attorneys often arises.  After all, it is a 6 year statute everywhere, is it not?  The short answer is "no" and the longer answer is that the legislature gave attorneys special protection.  After the Court of Appeals permitted a 6 year statute for breach of contract against attorneys, the legislature closed the "loophole".  Now the rule is bright-line: 3 years.

In Tsafatinos v Lee David Auerbach, P.C. ; 2011 NY Slip Op 00503 ; Decided on January 25, 2011 Appellate Division, Second Department  we see the outcome. 

" The Supreme Court properly granted the defendants' separate motions pursuant to CPLR 3211(a) to dismiss the complaint. The statute of limitations applicable to actions sounding in legal malpractice is three years "regardless of whether the underlying theory is based in contract or tort" (CPLR 214[6]). The plaintiffs' causes of action sounding in breach of contract and breach of fiduciary duty are based on the same facts underlying their legal malpractice cause of action and do not allege distinct damages. Accordingly, they are duplicative of the legal malpractice cause of action (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 199; Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749; Mecca v Shang, 258 AD2d 569), and likewise subject to the three-year limitations period (see Harris v Kahn, Hoffman, Nonenmacher & Hochman, LLP, 59 AD3d 390; Melendez v Bernstein, 29 AD3d 872).

The limitations period begins to run from the time of the alleged malpractice, not from the time of discovery (see Shumsky v Eisenstein, 96 NY2d 164, 166; 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704)"

 

This disciplinary proceedings makes for a shocking read.  This attorney went from a successful practice, to a legal malpractice claim, to a huge judgment against him in Federal Court, to the twists and turns which led to incarceration.  Why?  Because of a lie in a resume.  in Matter of Dorfman ;2011 NY Slip Op 00440 ;Decided on January 27, 2011 ;Appellate Division, First Department ;Per Curiam we see what happens when an attorney doesn't want to pay a judgment.  Eventually he reduces the payment to $ 50,000 but look what he ended up doing:

"After being hired by Baker to bring suit against the New York City Department of Health as a result of a medical testing error, respondent failed to file a timely notice of claim and failed to seek leave to file a late notice, resulting in dismissal of the action and prompting Baker to bring suit for legal malpractice and fraud in the Southern District of New York (Baker v Dorfman, 1999 WL 191531 [SD NY 1999], affd 239 F3d 415 [2nd Cir 2000]). A federal jury found that respondent had indeed induced Baker to retain him by furnishing a resume that patently misrepresented respondent's experience as a litigator. The jury awarded Baker compensatory damages of $360,000 and punitive damages of $25,000 (id.). 

After respondent repeatedly failed to make payments required under the agreement, the federal court modified its order and imposed various restrictions on respondent, inter alia, limiting his business and personal expenditures and generally confining his personal travel to the City of New York and his business travel to New York State and New Jersey (Baker v Dorfman, 2006 WL 988756)[SD NY 2006]. The order was subsequently modified and certain provisions added, but respondent's compliance was still not forthcoming. The federal court — indicating that respondent may have violated added requirements to report expenses in excess of $100, to limit hiring at his law firm and restrict support staff to two full-time staff members — referred the matter for prosecution by the United States Attorney for the Southern District of New York (Baker v Dorfman, 2006 WL 988747 [SD NY 2006]). Respondent ultimately pleaded guilty to one count of criminal contempt in violation of 18 USC § 401(3), and on December 19, 2007, the court sentenced him to two years' probation, including six days' community confinement in a halfway house.

In testimony before a Hearing Panel in October 2009, respondent disclosed that in the Spring of that year, after the instant "serious crime" petition was filed, he settled the Baker judgment for $50,000 using money provided by his wife.As to his violation of probation, on May 28, 2009, respondent pleaded guilty to traveling outside the judicial district without court leave — to Paris in 2008 and to Rome in March 2009. Respondent also pleaded guilty to lying to a probation officer in March 2009 concerning the Paris trip, which he only acknowledged after being required to produce his passport for inspection. While professing unawareness of the travel restrictions before the Hearing Panel, respondent had conceded such knowledge at his plea allocution some four months earlier. In a post-hearing submission that included documents relevant to his probation violation, respondent admitted that, in addition to the two European trips, he had traveled to Arizona and Boston in 2008 without court leave. 

On August 6, 2009, respondent was sentenced in Federal District Court on the probation violation. While commenting on respondent's "various dishonest and deceptive maneuvers to avoid paying a judgment that he owed Mr. Baker," which was construed as a "pattern of deception," the court concluded that "this is something deeply embedded in his character, not [*4]something that's going to change . . . during a period of supervision." The court thereupon sentenced respondent to 30 days' imprisonment without any further period of supervision. "

Dorf was suspended for a year by the Committee.

Cruciata v Mainiero ;2011 NY Slip Op 50066(U) ;Decided on January 14, 2011 ;Supreme Court, New York County ;James, J.  is a very interesting example of the premise that if you keep showing up and keep at it, a better result may very well follow.  In this case, a matrimonial action, plaintiff was awarded a divorce and some equitable distribution after a settlement.  She perservered and won reversal of the stipulation in the AD.  She went back and basically doubled her equitable distribution.
In the meanwhile, her legal malpractice case was dismissed, and again, she went to the AD, who, again, reversed Supreme Court.  Now, she perserveres through a motion for summary judgment.

"In his motion, Mainiero argues that Cruciata cannot establish that, "but for" his purported malpractice, "she would have obtained a better result."[FN1] Mainiero specifically argues first, that Cruciata cannot establish that his actions cost her the right to have a trial, since Cruciata herself chose to settle her divorce action rather than go to trial on both occasions when she was offered a choice. Mainiero also argues that Cruciata cannot establish that his actions adversely affected her right to custody of her children, because she chose not to litigate that issue after the Appellate Division, Second Department, vacated the original stipulation of settlement in her divorce action. Mainiero also argues that Cruciata cannot establish that his actions adversely affected her right to an equitable distribution of her marital property, since it was established that her ex-husband had not hidden any assets, and that the increase in her equitable distribution award was intended solely to compensate her for the large amount of legal fees she had spent in seeking those non-existent assets.

In her cross motion, Cruciata concedes both that she did have the right to a trial in her divorce action, but chose to forego it, and that she also chose not to litigate the issue of custody. However, Cruciata disputes Mainiero's contentions regarding equitable distribution, and specifically argues that, during the second settlement of her divorce action, she and her ex-husband treated the issues of equitable distribution and of compensating her for legal expenditures separately. Cruciata also claims that Mainiero, and not her ex-husband, is the party who should reimburse her for the legal fees that she incurred in re-opening and re-settling her divorce action. Mainiero's reply papers restate his original arguments, but do not address [*5]Cruciata's contention that he is the party liable to her for legal fees in her divorce action.

The court finds that, under the facts of this case, Mainiero is correct that Cruciata may not base a legal malpractice claim against her on the grounds that his actions adversely affected her rights to a trial and/or custody of her children in her divorce action. Cruciata has expressly admitted that she herself decided to settle that action and not to seek custody of her children. There is no conclusive evidence regarding the issue of equitable distribution, however. The only certain fact is that Cruciata was awarded a payment of $220,000.00 pursuant to her first divorce settlement, and a larger payment of $420,000.00 in the second settlement. The court's function, on a motion for summary judgment, is one of issue identification, not issue determination. See e.g. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Grullon v City of New York, 297 AD2d 261 (1st Dept 2002). Here, the court finds that Cruciata's and Mainiero's competing explanations for the increase in the settlement present an unresolved issue of fact. Therefore the court is unable to award summary judgment either granting or dismissing Cruciata's legal malpractice claim to the extent it is based upon the amount of the settlement. Accordingly, the court finds that both parties' motions should be denied with respect to this claim.

Cruciata's second cause of action alleges excessive legal fees. Mainiero's original moving papers do not mention this cause of action other than to deny that the fees that he charged Cruciata were excessive. In her cross motion, Cruciata states that her "excessive legal fees" claim is presented as "an alternate theory of recovery" of the damages that she seeks pursuant to her third cause of action. Cruciata specifically argues that, because an attorney who is terminated for cause by a client has no right to collect legal fees, any fees that Mainiero charged her are, perforce excessive. In his reply/opposition papers, Mainiero argues that Cruciata has failed to present evidence of either: 1) the actual amount of legal fees that he charged; 2) that those fees were excessive; or 3) that he was discharged for cause. The court agrees. Cruciata simply presents no evidence to support her second cause of action beyond her own conclusory, self-serving statements that Mainiero's fees were excessive, and that she discharged him for cause. It is well settled that conclusory assertions which are unsupported by evidence are insufficient to oppose a motion for summary judgment. See e.g. Mason v Dupont Direct Fin. Holdings, 302 AD2d 260 (1st Dept 2003). Accordingly, the court finds that Maniero's motion should be granted, and Cruciata's cross motion should be denied, with respect to Cruciata's "excessive legal fees" claim. [*6]

Client is misdiagnosed with breast cancer.  Typically the misdiagnosis is that the doctor missed the cancer.  Here it was the opposite.  The doctor is alleged to have found a false positive diagnosis.  Ms. Kremen underwent unnecessary bilateral mastectomy.  There was no cancer.

She hired the Benedict Morelli firm to sue.  The case was eventually dismissed on the statute of limitations.  A bankruptcy intervened.  The legal complications multiplied.  A legal malpractice case against the Morelli firm was dismissed.  Then, in what was viewed by Supreme Court as just too much, the Morelli firm sued plaintiff for its disbursements.  Justice Goodman sanctioned the Morelli firm.  Now, on appeal, the sanctions have been vacated.

Kremen v Benedict P. Morelli & Assoc., P.C.  ;2011 NY Slip Op 00405 ;Decided on January 25, 2011 ;Appellate Division, First Department
 

"The parties have been to this court before. First, we dismissed as untimely a medical malpractice action in which defendant law firm represented plaintiffs (Kremen v Brower, 16 AD3d 156 [2005], lv denied 5 NY3d 705 [2005]). Then, we dismissed this action in which plaintiffs sued defendants for legal malpractice arising out of the medical malpractice action as against the Morelli Ratner defendants (54 AD3d 596 [2008]).

After we dismissed plaintiffs' legal malpractice claim, defendant law firm moved in the motion court to restore its counterclaims for reimbursement of litigation expenses. Defendant had advanced these funds to plaintiff in the medical malpractice action. Defendant reasoned that because neither we nor the motion court had addressed these counterclaims, it was error for the motion court to mark the entire case "disposed." In an order dated February 29, 2009 and entered August 3, 2009, the motion court denied defendant's motion because defendant had not submitted any evidence that plaintiffs had agreed to be personally liable for the expenses.

Defendant argued that the terms of the retainer agreement required plaintiffs to repay all disbursements when plaintiffs used a different law firm to appeal the dismissal of the medical malpractice action.

In an order entered October 8, 2009, the motion court denied defendant's motion to renew and reargue. It rejected defendant's argument that plaintiffs had replaced defendant with another firm, because, although another firm took the appeal, defendant was never replaced in the underlying medical malpractice action. Finding defendant's argument "nonsensical and frivolous," the motion court also declared its intention to impose sanctions. The court gave defendants the opportunity to submit a memorandum in opposition, of which defendant availed itself. On January 25, 2010, the motion court found that defendant had violated Uniform Rules for Trial Courts (22NYCRR) § 130-1.1, and imposed a sanction of $6,000 payable to the Lawyers' Fund for Client Protection of the State of New York. Defendant appealed only from the January 25, 2010 order imposing sanctions. We now reverse. "

Venue is the "where" of legal malpractice's five W's.  Venue is determined by who is bringing the action, what the cause of action consists of,  How is venue determined.  In NY jurisprudence the short answer for most cases is where one of the parties resides.  Some times it is where the wrong was committed.  Here in Cold Spring Harbor Laboratory v. Ropes & Gray we see US District Judge Spatt deciding where to hold the trial.  In a NYLJ article Joel Stashenko writes:

"Eastern District Judge Arthur D. Spatt said in Cold Spring Harbor Laboratory v. Ropes & Gray, 20-cv-661, that venue has generally been determined in such malpractice actions based on where an attorney's improper conduct allegedly occurred, not where the injured parties were located at the time.

Judge Spatt noted that Mr. Vincent appears to have drafted the Hannon applications with material copied from the Fire application while working in Ropes & Gray's Boston office; that he made assurances to Mr. Hannon and the Cold Spring lab by phone or e-mail from Boston that he was watching out for Mr. Hannon's best interests, and that he failed repeatedly to tell the lab that he had copied the Fire material in the applications.

Mr. Vincent did meet with lab personnel on several occasions in Long Island early in the patent application process, but the judge said that discussions at those sessions did not directly relate to the alleged malpractice.

"Because the Defendants did not commit any of the alleged acts or omissions underlying the legal malpractice claim in the Eastern District of New York, and any relevant communications were tangential to the legal malpractice claim, venue is not proper in the Eastern District of New York," Judge Spatt wrote.

Ropes & Gray had sought to transfer the case to Boston, where its main offices are located."

In 2009, the firm fired Mr. Vincent after it discovered that a patent database company that billed the firm and clients for more than $730,000 was owned by Mr. Vincent.

The attorney was a specialist in patent law and intellectual property at Ropes & Gray and the Cold Spring Harbor Laboratory's chief outside patent prosecution counsel from 2001 to 2008. According to the lab's complaint, he was paid $1.82 million in legal fees over that period.
 

We're proud to announce that our article "Legal Malpractice, Retaining and Charging Liens" was published in today's New York Law Journal.  It's about the issue most close to the hearts of attorneys, fees.  What happens at the end of the attorney-client relationship and how are fees worked out?  Read on...

Attorney being sued in legal malpractice - not a big story.  Attorney settling and paying $ 25 Million in malicious prosecution ?  Big story.  Here is the enormous settlement story from Brian Baxter of the New York Law Journal..

"Ending 13 years of litigation, Manatt, Phelps & Phillips has agreed to pay $25 million in damages to Los Angeles businessman Stewart Resnick and his wife, Lynda, in a case that began over trademark and advertising claims related to the late Diana Spencer, Princess of Wales.

The Resnicks once owned The Franklin Mint, which produced a commemorative plate, purse and porcelain doll using the princess' likeness after she was killed in a 1997 car crash in Paris. Manatt and IP partner Mark Lee, representing Diana's estate and a memorial fund set up in her name, sued The Franklin Mint for trademark dilution and false advertising, claiming that their client's likeness had been used without permission to market memorabilia.

Former U.S. District Judge Florence Marie Cooper of the Central District of California dismissed the case on summary judgment in 2000, calling it "groundless" and "unreasonable," while awarding The Franklin Mint and its attorneys $2.3 million in legal fees under a provision contained in the Lanham Act. The Franklin Mint then sued Manatt, Mr. Lee and Diana's estate and memorial fund for malicious prosecution in 2002, claiming that the litigation was an attempt to hurt the company's Diana-related sales.

The Franklin Mint, owned by the Resnicks through their Roll Global holding company, was particularly incensed about a passage in Manatt's complaint comparing the company to "vultures feeding on the dead." The Franklin Mint's lawyers at Loeb & Loeb, led by partner Andrew Clare, argued that such an allegation damaged their clients' reputation. The Franklin Mint, based in Exton, Pa., was sold in 2006 to a group led by executives from The Morgan Mint.

Diana's estate and charity trust fund settled The Franklin Mint's claims against them in 2004 for $25 million, all of which the Resnicks said they donated to charity.

Manatt, however, continued the fight. After a 17-day trial two years ago, a Los Angeles Municipal Court judge granted the firm's motion for dismissal of the suit, effectively ending the case in the firm's favor.

That decision was overturned last May when California's Second District Court of Appeal handed down a 3-2 ruling in which it held that Manatt and Mr. Lee did not have probable cause to file the initial claims against The Franklin Mint and the Resnicks. The ruling also revived the malicious prosecution case. Akin Gump Strauss Hauer & Feld partners L. Rachel Helyar and Rex Heinke represented The Franklin Mint on appeal.

Manatt hired Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan, who filed a 41-page cert petition in June asking the Supreme Court of California to review various legal issues in the case. Ms. Sullivan focused on a dissenting opinion of one appellate court judge who objected to Manatt being targeted for damages because it was on the losing side of a case for its client."
 

Legal malpractice counterclaims face an uphill battle in attorney fee cases, and Schulte Roth & Zabel, LLP v Kassover ; 2011 NY Slip Op 00267 ; Decided on January 20, 2011 ; Appellate Division, First Department   is no exception.  The law firm represented defendants and worked up a $ 500,000 + bill.  Client partially paid monthly bills, and had objections but not enough for the Court to deny an account stated.  Client was able to demonstrate shortcomings and departures in the representation, but in a somewhat cruel outcome, was said not to have been able to demonstrate that if an appeal had been taken he would have won.  The "no appeal" area of legal malpractice is terribly difficult, because it is the most abstruse "hypothetical" judgment there is.  Contrast how an appellate division might come out on a disputed area of law with how a jury would find on a hit-in-the-rear car case with a fracture.
 

"Defendant client's occasional oral objections to plaintiff law firm's bills were insufficient to raise an issue of fact as to the existence of an account stated (see Duane Morris LLP v Astor Holdings Inc., 61 AD3d 418, 419 [2009]). At deposition, he was unable to relate any objection to a specific amount or invoice and had an extensive history of partial payment, including writings acknowledging the debt.

Evidence that plaintiff failed to read an order entered on consent before its entry, allowed the time for an appeal from that order to lapse, and abandoned defendant on a stay application just days before a material event raised a triable issue as to whether plaintiff's conduct fell below the standard of the profession (see Bernstein v Oppenheim & Co., 160 AD2d 428, 430-431 [1990]). However, because defendant was unable to show that, but for counsel's errors, he would have prevailed, his malpractice claims were correctly dismissed (see Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 198 [2003]). "
 

Attorney is retained by plaintiff to prepare a commercial and corporate agreement between plaintiff and a commercial suitor.  In the end, plaintiff claims, attorney took a look at plaintiff's niche business, then formed its own spin-off company to compete.  Competition rose to the $ 2.5 billion level.  Justice Feinman rendered a decision in Sharbat v Law Offs. of Michael B. Wolk, P.C.; 2011 NY Slip Op 30088(U) ;January 12, 2011 ;Sup Ct, New York County; Docket Number: 600151/2008
Judge: Paul G. Feinman which interprets and re-states some well known principals of legal malpractice and breach of fiduciary duty.  Here's some background:

"Sharbat is the president and sole equity holder of QSM. According to Sharbat, QSM is engaged in the business of “buying and re-selling certain qualified individual life insurance policies in the premium finance/life settlement arena - a niche industry.”

"Specifically, plaintiffs allege that, while defendants were acting as counsel for plaintiffs defendants were exposed to plaintiffs’ “business, business model, client base, stratagem for making profits, making contacts and recruiting clients.”

"As a result of defendants’ exposure to plaintiffs’ business and business contacts, plaintiffs
allege that defendants started a company called Lifespring Brokerage, LLC (Lifespring)).
Michael Morrisan (Modson), one of the founders of Lifespring, was working as an attorney for
that Wolk Firm during its representation of plaintiffs"

"Plaintiffs contend that defendants breached their fiduciary duty when they solicited plaintiff's’ clients, misappropriated and utilized plaintiffs’ client lists without plaintiffs’ knowledge or consent, and unfairly competed with plaintiffs by starting an identical competing business.  With respect to Ehrlich, as previously mentioned, defendants drafted a contract between  plaintiffs and Ehrlich. Sometime after the attorney-client relationship was over, plaintiffs discovered that defendants were pursuing business with Ehrlich. Defendants do not deny contacting Ehrlich and pursuing  business with him. Defendants merely state that plaintiffs have failed to establish that they had an exclusive right to conduct business with Ehrlich. Defendants summarily state that they did not receive a “penny” from Ehrlich. Defendants do not, however, deny that Lifespring received a profit from Ehrlich. Defendants also maintain that Ehrlich made his own independent decision not to conduct business with plaintiffs. As such, according to defendants, any conduct which may have harmed plaintiffs was the conduct on the part of Ehrlich not to conduct business with plaintiffs, not defendants’ conduct in pursuing business with him. With respect to Oceangate, Sharbat testified that 0Oceangate assured plaintiffs that it would give plaintiffs exclusive business. However, when plaintiffs followed up, Oceangate stated that It had decided to give its exclusive business to Lifespring.

 In response, defendants make the same arguments, Le., that they never received a penny from any transactions with Oceangate, Oceangate chose not to conduct business with plaintiffs, and Oceangate was not plaintiffs’ exclusive client. Defendants do not deny pursuing business with Oceangate, nor do they deny that Lifespring received a profit from Oceangate."

"As set forth blow, the record indicates that not only have defendants not met their burden on a motion for summary judgment, but that plaintiff's have created a triable issue of fact as to whether defendants’ professional judgment was impaired due to defendants alleged divided
loyalties, Factual issues remain with respect to Ehrlich, Oceangate, the client lists, and the use of
plaintiffs' business models, and a potential breach of fiduciary duty."

Purchasers of real property should have bullet-proof protection on title and the conditions of sale.  There are any number of good, competent attorneys who are ready to handle a real estate buy-sell and to get the appropriate title search, survey and whatever else is necessary to ensure that the buyer gets what the bargain requires.  This simple fact renders Claude v Elgammal  ;2011 NY Slip Op 50024(U) ; Decided on January 14, 2011 ; Supreme Court, Kings County ; Battaglia, J. all the more shocking.  Here, seller's attorney hired an attorney for buyer to represent buyer at the closing.  The result was understandably less than optimal.
 

"Defendant asserts that she "did not represent the Plaintiff at the inception of the transaction for 272 Sumpter . . . [and] was hired by Yolanda A. Corion Esq. [the seller's attorney] to represent the Plaintiff for the closing only"; and further that she "was retained shortly before the closing, merely to represent [Plaintiff] regarding matters to be consummated at the closing . . . [and] Plaintiff was represented by another attorney at the inception of the transaction." (Affidavit in Support ¶ ¶ 8, 11.)

As to these matters, Defendant provides an affidavit of Ms. Corion, who asserts that, having been advised by her client, the seller, that Plaintiff's "attorney was not able to be present at the closing," she requested that Defendant "represent the Plaintiff for the closing only" (Affidavit in Support of Summary Judgment ¶ ¶ 3, 4.) Neither Defendant nor attorney Corion indicates that, prior to the closing, she ever spoke to Plaintiff or Plaintiff's putative attorney; indeed, neither even provides a name for the attorney.

Defendant provides no copy of an engagement letter or retainer agreement with Plaintiff that would have limited or qualified her representation of Plaintiff, nor does she state that she disclosed, either before or at the closing, her understanding of the scope of the representation to Plaintiff, including any possible conflict of interest (see Sitar v Sitar, 50 AD3d 667, 669-70 [2d Dept 2008].) Nor does Defendant demonstrate that as a matter of law her professional responsibility to Plaintiff was somehow limited or qualified by reason of her arrangement with the seller's attorney.

Indeed, Defendant does not describe how she exercised proper care, skill, and diligence in her representation of Plaintiff, other than to state that "[a]t the closing, [she] went through and explained in detail the meaning and import of each and every closing document with him, including without limitation the loan related documents" (Affidavit in Support ¶ 11.) Defendant's further statements that she "was not privy to [Plaintiff's] pre-closing [*4]communications, and when [she] met him at the closing he made no mention to [her] of any of his alleged oral understandings with [other] defendants" only highlights the absence of any statement that she discussed with Plaintiff any "pre-closing communications" or "oral understandings" as they might relate to the documents he was signing, or that she advised him as to the consequences of his signing as to any such "pre-closing communications" or "oral understandings."

Defendant fails to establish prima facie that she did not breach any duty owed to Plaintiff as his attorney in connection with his purchase of 272 Sumpter Street. Her contention that "plaintiff has provided nothing to support a claim of legal malpractice" is unavailing. "As a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004] [quoting Larkin Trucking Co. v Lisbon Tire Mart, 185 AD2d 614, 615 (4th Dept 1992)]; see also Gonzalez v Beacon Terminal Assocs., L.P., 48 AD3d 518, 519 [2d Dept 2008].)"

Attorney fees are an endless source of conflict.  They have always been an endless source of conflict.  We faintly remember from high school that Abraham Lincoln was involved in attorney fee litigation.  Today is no exception.  inLanda v Blocker ;2011 NY Slip Op 00191 ;Decided on January 11, 2011 ;Appellate Division, Second Department  we see attorney fees in the matrimonial law arena.
Although we do not know (and the decision avoids discussion) of how the 22 NYCRR 1200 et seq rules impact this matrimonial attorney fee issue, we see defendant's legal malpractice case gutted.

"The Supreme Court properly denied the defendant's motion for summary judgment dismissing the amended complaint, but it should also have denied that branch of the plaintiff's motion which was for summary judgment on the first cause of action to recover on an account stated.

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648; Landa v Sullivan, 255 AD2d 295). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Industrial Products, Ltd. v R.S.M. Electron Power, Inc., 37 NY2d 151, 153-154; Rodkinson v Haecker, 248 NY 480, 485). "
 

"The Supreme Court properly granted that branch of the plaintiff's separate motion which was for summary judgment dismissing the defendant's counterclaims, among other things, to recover damages for legal malpractice. Although an attorney's affirmation may serve as an expert opinion establishing "[a] basis for judging the adequacy of professional service" (Zasso v Maher, 226 AD2d 366, 367), here, in opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law, the attorney's affirmation submitted by the defendant was insufficient to raise a triable issue of fact as to whether the plaintiff was negligent in his representation of her in the underlying matrimonial action (see Scartozzi v Potruch, 72 AD3d 787, 788-789). Moreover, in opposition to the plaintiff's prima facie showing, the defendant failed to raise triable issues of fact with respect to her other counterclaims."

Client suffers injury, client suffers (same or different) financial stresses and filed a petition in bankruptcy.  Effect is that client loses claim of injury to the bankruptcy estate, and may no longer bring the action.  Eventually, client is discharged in bankruptcy and sues the professional.  The case will be dismissed, for lack of standing.  So it is in, Valerie Sotille,  v. James D. Mullin, D.D.S.,  019694/06; Supreme Court, Nassau County.
 

"On May 11, 2004 plaintiff as debtor filed a voluntary petition seeking relief from her creditors pursuant to Chapter 7 of the Bankruptcy Code. On June 25, 2004 the bankruptcy trustee filed his report of no distribution, the matter was discharged on September 3, 2004 and terminated on October 25, 2004 (Bankruptcy Court, E.D.N.Y. Case No. 804-83123).

Upon learning of the action at bar, the trustee sought to re-open plaintiff/debtor's case to allow the pursuit of this malpractice action for the benefit of the estate (see 11 U.S.C. 350 (b) and 101 et seq.). Such an application would include all claims and causes of action which the debtor knew or should have known about and which have accrued as of the date of the debtor's bankruptcy filing.

Subsequently, the Hon. Dorothy T. Eisenberg re-opened the bankruptcy petition permitting the trustee to administer an undisclosed asset.

The action at bar was marked in stay status pending the Bankruptcy Court's above determination. Now that the trustee by special counsel (who was plaintiff's original attorney) is authorized to act on behalf of the bankruptcy estate in this Court, the action has been restored to active status, including defendant's instant application.

The question before the Court at this juncture is whether plaintiff in her individual capacity had standing to commence the malpractice lawsuit in the first instance. If she was not due to the bankruptcy filing, the complaint must be dismissed with no possibility of the bankruptcy trustee pursuing the action as an asset since the statute of limitations has expired (CPLR 214-a and 205 (a); see Reynolds v. Blue Cross, 210 AD2d 619).

Plaintiff's bankruptcy estate opposes defendant's motion to dismiss, arguing that defendant's dental treatment was rendered both before and even after the Chapter 7 petition was filed on May 11, 2004. Thus the issue of plaintiff's so-called failure to disclose this claim to the trustee is not fatal because treatment had not ceased before the bankruptcy application was discharged on September 3, 2004.

This argument is unpersuasive."

Typically a claim of breach of fiduciary duty involving an attorney will be an afterthought, or an alternative pleading, sometimes a duplicitive one, sometimes an independent cause of action.  Rarely does it stand alone.  Here, an attorney is accused of aiding a ponzi scheme, and really big numbers are involved.  As Nolene Walder of the New York Law Journal writes:

"Nearly two years after the arrest of a hedge fund manager for cheating investors out of $20 million, a New York lawyer has become ensnared in the fallout from the scheme.

In a civil suit filed last week in Manhattan Supreme Court, the Alexander Dawson Foundation claims that hedge fund manager Mark Bloom, the owner of North Hills L.P., "received assistance" from three accountants as well as attorney Victor M. Rosenzweig, who served as the director of North Hills Management LLC, a general partner of the hedge fund.

The complaint, among other things, accuses Mr. Rosenzweig, who is of counsel at Olshan Grundman Frome Rosenzweig & Wolosky, of breach of fiduciary duty.According to the suit, the foundation lost more than $9.75 million as a result of the fraud, the bulk of which was intended to be used to educate school children."Had Plaintiffs been made aware of Bloom's fraud in June or July 2005, they would have withdrawn from the Fund immediately," the complaint alleges.

Thomas J. Fleming of Olshan Grundman, who represents Mr. Rosenzweig, vigorously denied the allegations  .In 2009, Mr. Bloom pleaded guilty in the Southern District to five counts, including securities fraud and mail fraud.According to the foundation, accountant Robert M. Graber of Davis, Graber, Plotzker & Ward was retained to audit the fund's annual financial statements for the years ending in 2001-03 and gave the fund a "clean opinion," in spite of the fact that the records contained information relating to Mr. Bloom's scheme.

Even after Mr. Graber learned that Mr. Bloom had withdrawn $8 million from the fund without documentation, the accountant "personally reassured the trustees" of Alexander Dawson Inc., the investment arm of the foundation, of the fund's "sound financial condition and failed to disclose Bloom's conduct," the complaint says.

Peter J. Larkin of Wilson Elser Moskowitz Edelman & Dicker, who represents Mr. Graber and his accounting firm, said his clients denied the allegations and would vigorously defend the case going forward.

The foundation also alleges that Brian Zucker of the accounting firm of Zucker & Associates "provided substantial assistance to Bloom's fraud by preparing materially false schedule K-1s."

Stephen Jacobs of Landman Corsi Ballaine & Ford, who represents Mr. Zucker, said in an interview that the claims against Mr. Zucker and his firm were completely without merit.
 

Ripeness in legal terms means that a dispute is so fully developed that a court might determine the rights and liabilities of the parties.  This issue arises in legal malpractice settings because the underlying case (the case within a case) is not always finished or fully litigated.  When the underlying case is not yet fully finished, courts sometimes hold that the legal malpractice case is not yet ready to be heard, or is unripe.

In SHEILA FINCH,  v. TOOHER, WOCL & LEYDON, LLC, and TOOHER & WOCL, LLC, ; CIVIL ACTION NO. 3:10-cv-713(CFD); UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT;2010 U.S. Dist. LEXIS 136958;December 28, 2010 we see the following:

"On May 23, 2008, plaintiff Sheila Finch's son, James Avalone, was arrested in Stamford, Connecticut. In an attempt to conceal drugs from the police, Avalone ingested the morphine and methadone tablets he was carrying. Avalone died of the overdose in his cellblock at the Stamford Police Department that day. On May 28, 2008, Finch signed an agreement with Tooher, Wocl & Leydon ("the firm") who agreed to investigate the case and, if appropriate, file a civil suit against the Stamford Police Department relating to the death of her son. The firm never brought a lawsuit, and Finch hired a second lawyer, John Williams. With her new counsel, Finch filed this action for legal malpractice and breach of contract against the firm on May 10, 2010, and also a suit against the City of Stamford for violating the civil rights of James Avalone in connection [*2] with his death. Finch v. Stamford, No. 3:10-cv-748 (D.Conn.) (Kravitz, J.) "

"Although the resolution of the case before Judge Kravitz may have an impact on the quantity of damages Finch may be able to recover from the firm, this suit is nevertheless still ripe for review now. The Connecticut Supreme Court, in Mayer v. [*4] Biafore, Florek and O'Neill, noted that while "all legal malpractice cases are based on underlying rights," to "require that the underlying dispute as to those rights, in all cases, must be completely resolved prior to bringing a malpractice action would unduly restrict the plaintiff's remedy against the allegedly negligent lawyer." Mayer, 245 Conn. 88, 92, 713 A.2d 1267 (1998). "

Partnerships and LLCs, real estate and plans to make a lot of money often unravel, and do so in messy ways.  Here, in Shapsis v Kogan ; 2011 NY Slip Op 50014(U) ; Decided on January 7, 2011 Supreme Court, Kings County ; Demarest, J.  we see the tail end of the proceedings, after a US District Court case and personal injury cases have concluded.  Quite a lot of money was at stake.
 

We'll leave the partnership and LLC matters to others, but plaintiffs also sued the partnership attorneys on a mixed theory of legal malpractice in the way they proceeded with the cases and with a generalized conflict of interest.  The case against the attorneys founders on the lack of privity of the individual clients; it may have succeeded if the LLC had brought the case.

"Plaintiffs' third cause of action alleges a breach of fiduciary duty by the Sklavos [*6]defendants, seeking damages against them. In order to state a prima face case for a breach of fiduciary duty, " a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant's misconduct'" (Guarino v North Country Mortg. Banking Corp., 2010 WL 5095476 [2nd Dept 2010] quoting Kurtzman v Bergstol, 40 AD3d 588, 590 [2d Dept 2007]). "[W]here. . . the plaintiff's claims of breach of fiduciary duty are essentially claims of legal malpractice, they are governed by the same standard [for legal malpractice]" (Boone v Bender, 74 AD3d 1111, 1113 "

"Here, plaintiffs's third cause of action must be dismissed outright as plaintiffs have only alleged that the Slavos defendants were retained by 2417 Ocean Avenue, and thus owe the plaintiffs a fiduciary duty, failing to adequately allege the existence of a fiduciary duty between the Sklavos defendants and the plaintiffs themselves as individuals. It is clear that the Sklavos defendants had no duty to disclose any conflict, if one in fact existed, to the plaintiffs as none of them were represented by the Sklavos defendants or listed as individual parties in either the Mikucki action or the Bouri action. Instead of alleging that a fiduciary duty existed between the Sklavos defendants and themselves, plaintiffs assert an improper derivative claim on behalf 2417 Ocean Avenue, alleging that Sklavos failed to advise 2417 Ocean Avenue that it had no liability for the personal injury lawsuits instituted against it and failed to disclose the conflict of interest created by the Sklavos defendants' simultaneous representation of 2417 Ocean Avenue and IBM. Although members of an LLC are permitted to bring derivative claims on behalf of the LLC (see Tzolis v Wolff, 10 NY3d 100 [2008]), here, two of the plaintiffs are not even members of the LLC and lack standing to bring a derivative action. Moreover, all three of the plaintiffs seek relief for themselves as individuals instead of relief for the LLC.

Plaintiffs also fail to adequately plead the remaining elements of the cause of action. They do not allege that the Sklavos defendants failed to successfully represent 2417 Ocean Avenue and prevail in the actions or that the LLC incurred damages. Plaintiffs only allege that 2417 Ocean Avenue paid a disproportionate share of the legal fees and settlement costs incurred by both it and IBM, but do not dispute that the Mikucki action was resolved in 2417 Ocean Avenue's favor, and that no judgment was issued against 2417 Ocean Avenue in the Bouri action. Thus, the third cause of action is dismissed in its entirety. "

The last cause of action "is inadequate as they have failed to allege the existence of an attorney-client relationship between the Sklavos defendants and plaintiffs individually and have failed to submit a retainer agreement or describe the terms of an existing oral agreement. Plaintiffs have only alleged that Shapsis and Malishkevich sat in on some meetings with Sklavos, among others, related to the organization of 2417 Ocean Avenue and that Shekhets is member of 2417 Ocean Avenue, which was represented by Sklavos. These allegations fail to adequately plead the existence of an express agreement between the Sklavos defendants and the plaintiffs to perform legal services. "

We write that legal malpractice issues are everywhere, and might surface in any setting.  Here is a story from the National Law Journal about a 35 year old missing will of Mama Cass, and whether the attorneys who had it in their files were negligent in not producing it back when it counted.

Leigh Jones reports: 'The siblings of Mama Cass are suing Mitchell, Silberberg & Knupp, claiming that a will recently discovered in the law firm's archives shows they were cheated out of a share of the dead singer's estate 35 years ago.

The suit alleges that Mitchell Silberberg in 1967 prepared a will for Ellen Naomi Cohen, a member of the 1960s quartet The Mamas & The Papas, but that the firm told relatives when she died that a will could not be found.

The estate of Ms. Cohen, popularly known as Mama Cass Elliot, was distributed according to California intestate law, which, the plaintiffs allege, deprived them of part of the estate. Mama Cass died in 1974 at age 33 in a London hotel room from an apparent heart attack."
 

"Mitchell Silberberg responded to requests for comment in an e-mail. "Plaintiffs' allegation that MSK concealed the existence of a will is utterly absurd," the firm said. "There are no facts that support plaintiffs' allegation that MSK lost the will, breached its fiduciary duty or made any misrepresentations whatsoever about the existence or whereabouts of the will." It added that the lawsuit was barred by the statute of limitations.

The lawsuit claims malpractice, negligent misrepresentation and fraud. It alleges that the law firm knew that a will existed but represented that it did not. It also alleges that the firm had conflicts of interest in simultaneously representing the estate and Mama Cass' creditors."
 

Plaintiff says that this is not a legal malpractice case, but it is the death knell of a well known and long lived law firm in New York City.  150 Broadway N.Y. Assoc., L.P. v Shandell ;2011 NY Slip Op 30009(U); January 3, 2011; Supreme Court, New York County; Docket Number: 601950/09; Judge: Judith J. Gische discusses the story of what happens when a law firm closes.

"Plaintiff was the landlord for Shandell Blitz Blitz & Bookgon, LLP (SBSSB) which later became known as Shandell Blitz Blitz & Ashley, LLP (“Shandell Ashley”). Eventually the firm fell into arrears on its rent and plaintiff brought a nonpayment proceeding against SBB&B. Plaintiff obtained a money judgment against SBB&B for $257,378.72. The action at bar seeks to enforce the judgment the attorneys who personally guaranteed SBB&B’s obligations under the lease."

"Plaintiff has asserted a claim for “an accounting of prior monies received” against Shenwick, based on claims that Shenwick and Berenson (the CPA) “received various monies and properties belonging to [SBBSB and/or Shandell Ashley] without accounting” and that Berenson and or Shenwick distributed the funds “arbitrarily, unreasonably and capriciously to the detriment and harm of the Plaintiff.” Stating that it has only received a single payment of $5,000 payment, plaintiff states that it is entitled to a “pro-rata distribution of all the monies collected to date by Berenson and Shenwick”

"Plaintiff does not squarely identify its claim against Shenwick as being for circumstances, an attorney is not liable to third parties for caused by professional negligence (Ch ipello v. Nixon Harqrave et al., 15 AD3d 894 [4* Dept 20051). Furthermore, unless the attorney placed his or her own interests above that of his or fiduciary, the attorney is not liable for breach of fiduciary duty to a third party with whom s/he is not in privity (Chinello v. Nixon Harqrave et a I,, supra). Breach of Fiduciary Duty, on the other hand, is a tort. In deciding whether there is a fiduciary relationship, the a court will look to see “whether a party reposed confidence in another and reasonably relied on the other’s superior expertise or knowledge” (Wiener v. Lazard Freres & Co., 241 A.D.2d 114, 12 [I9981 ). It is unrefuted that Shenwick was hired to assist Shandell Ashley in winding up its affairs and the partnership was his client (see Gaillard Realtv v. Man hattan Brass,  38 AD 84 [Ist Dept 1991). This is clearly stated in the Notice of Dissolution that -Shandell Ashley sent to plaintiff and other creditors. The Notice identifies Berenson as the liquidating agent and Shenwick’s firm as the par ,,iership’s attorneys. All of Shenwick’s interaction with plaintiff was as an attorney with the law firm acting on behalf of Shandlel Ashley. Even assuming Shenwick answered any of the liquidation agent’s legal inquiries, Shenwick provided such advice, direction, etc., on behalf of his client, Shandell Ashley, not for the particular benefit of the plaintiff or any other creditor. There is no claim by plaintiff that Shenwick acted out of self interest (Chinello v. Nixon Hargreve et al., supra).
Any claim by plaintiff that it had a fiduciary relationship with Shenwick is without any factual basis, since Shenwick and plaintiff did not have a relationship based upon confidence."

There are conflicting rules in the 4 departments of New York. In legal malpractice, it is plaintiff's obligation to demonstrate that a hypothetical judgment could be collected in a legal malpractice case in the 2d, 3d and 4th departments. In the First Department, it is an affirmitive defense for defendant to prove.

Here is a procedural case from the 4th Department on the issue. Williams v Kublick
2007 NY Slip Op 04932 Decided on June 8, 2007 Appellate Division, Fourth Department .

"We conclude that Supreme Court erred in granting defendants' motion, and we therefore modify the order accordingly. In granting the motion, the court determined, inter alia, that defendants established as a matter of law that plaintiff is unable to prove that defendants' [*2]negligence is a proximate cause of plaintiff's damages (see Robbins v Harris Beach & Wilcox, 291 AD2d 797, 798). That was error."

"A necessary element of a cause of action for legal malpractice is the collectibility of the damages in the underlying action (see McKenna v Forsyth & Forsyth, 280 AD2d 79, 82-83, lv denied 96 NY2d 720; cf. Lindenman v Kreitzer, 7 AD3d 830, 835). Here, regardless of whether the value of the property was improperly considered by the experts, we conclude that the otherwise conflicting opinions of the experts concerning the value of the assets of the joint venture precluded the court from determining as a matter of law that defendants established that plaintiff is unable to prove that he could collect damages in the underlying lawsuits (see generally Simmons v State Farm Mut. Auto. Ins. Co., 16 AD3d 1117; Herzog v Schroeder, 9 AD3d 669, 670)."

The Curtis law firm bills itself as "the only law firm[s] in the United States" to concentrate their practice on "representing clients injured by attorneys."   In this US District Court case we see legal malpractice attorneys suing legal malpractice attorneys under a very unconventional theory of law.

CURTIS & ASSOCIATES, P.C. and W. ROBERT CURTIS, Sc.D., J.D., Plaintiffs, - against - THE LAW OFFICES OF DAVID M. BUSHMAN, ESQ.; DAVID M. BUSHMAN, ATTORNEY AT LAW; DAVID M. BUSHMAN, ESQ.; JANET TURANSKY CALLAGHAN; STEVI BROOKS NICHOLS; JEFFREY LEVITT, ESQ.; JEFFREY LEVITT, ATTORNEY AT LAW; HERBERT MONTE LEVY, ESQ.; LAW OFFICES OF HERBERT MONTE LEVY, ESQ.; JOHN DOE, ESQ.; LAW OFFICES OF JOHN DOE, ESQ.; JANE DOE, ESQ.; LAW OFFICES OF JANE DOE, ESQ.; and EILEEN DEGREGROIO,

Its a 43 page decision, but we'll try to cut to the chase here. "This understanding — that the alleged RICO predicate acts are no more than "litigation activities" alone — brings into focus plaintiffs' rather striking theory of the case. Plaintiffs essentially allege that any client with the impudence to contest the Curtis Law Firm's legal fees, and further, to litigate in court that client's obligation to pay those fees or challenge through a malpractice action the professional conduct of the Curtis Law Firm, and any attorney who represents such a client, is a racketeer and liable for treble damages. The gravamen of the Complaint is thus that defendants' have violated RICO by defending against plaintiffs' fee claims or initiating malpractice [*44] actions against plaintiffs and thereby forcing plaintiffs to litigate allegedly "phony" and "frivolous" lawsuits in state court. This theory cannot withstand a motion to dismiss because it fails to state a claim upon which relief may be granted.

First, persuasive authority in this and other jurisdictions suggests that the litigation activities alleged in this Complaint cannot properly form the basis for RICO predicate acts. See, e.g., Gunn v. Palmieri, No. 87-cv-1418, 1989 WL 119519, at *1 (E.D.N.Y. Sept. 29, 1989), aff'd, 904 F.2d 33 (2d Cir. 1990), cert. denied, 498 U.S. 1049, 111 S. Ct. 758, 112 L. Ed. 2d 777 (1991) (rejecting "untenable" interpretation of RICO which would permit litigation activities to be construed as RICO predicate acts). Thus, on similar facts, a number of courts have found that allegations such as those here more properly may be classified as claims sounding in abuse of process 21 or malicious prosecution. 22 See, e.g., Daddona v. Gaudio, 156 F. Supp. 2d 153, 162 (D. Conn. 2000) (finding allegations "at best amount to vague abuse of process or malicious prosecution claims" where complaint lists "a [*45] variety of 'predicate acts,' all of which involve the filing of complaints and other legal documents"); Nakahara v. Bal, No. 97-cv-2027, 1998 U.S. Dist. LEXIS 825, at *20-21, *27 (S.D.N.Y. Jan. 30, 1998) (finding that plaintiffs' mail and wire fraud claims are at most "a potential yet still inchoate claim for malicious prosecution or abuse of process" where "the gravamen of [plaintiffs'] Complaint . . . is patently directed at [the defendant's] filing of, or participation in, the various legal actions pending against [plaintiffs]"); Von Bulow v. Von Bulow, 657 F. Supp. 1134, 1140-42 (S.D.N.Y. 1987) (finding that the "essence of the stated [fraud] claim" sounds in malicious prosecution where plaintiffs' allegations "closely parallel[ed] the elements of malicious prosecution claim).
 

Further, and even more compelling than the persuasive authority discussed above, plaintiffs' claims must be rejected because finding otherwise - and allowing malicious prosecution claims such as those attempted to be alleged here to suffice as RICO predicate acts - would lead to absurd results. First, if routine litigation activities such as defending against a fee claim or prosecuting a malpractice action against a former attorney is a violation of RICO, then almost every state or federal action could lead to corollary federal RICO actions. See Kashelkar v. Rubin & Rothman, 97 F. Supp. 2d 383, 392 (S.D.N.Y. 2000) ("Garden-variety pleading errors and the filing of routine motions do not constitute RICO predicate acts. To hold otherwise would turn every state court lawsuit into a predicate for a subsequent federal RICO action."). Plaintiffs' interpretation of RICO is untenable and would result in the inundation of federal courts with civil RICO [*50] actions that could potentially subsume all other state and federal litigation in an endless cycle where any victorious litigant immediately sues opponents for RICO violations. See, e.g., Gunn, 1989 WL 119519, at *1 ("If serving and filing an answer or a motion by any defendant . . . could be considered . . . [a RICO predicate act], this Court would be flooded with motions to amend complaints by plaintiffs seeking to add RICO claims based upon mail fraud and obstruction of justice as soon as an answer was served. Such an interpretation of the RICO statute is untenable."

Leviton Manufacturing is a huge manufacturer of electrical and electronic items, and regularly patents new inventions.  Here, in LEVITON MFG. CO., INC.,  -against- GREENBERG TRAURIG LLP, et al.,09 Civ. 8083  UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,  2010 U.S. Dist. LEXIS 12884;9  ( December 6, 2010)  Magistrate Judge Katz decides whether successor attorneys may be questioned about attorney-client conversations.
 

"The attorney-client privilege affords confidentiality to communications among clients and their attorneys for the purpose of seeking and rendering an opinion on law or legal services, or assistance in some legal proceeding, so long as the communications were intended to be, and were in fact, kept confidential."

"The attorney-client privilege may be waived. Although Defendants' rely primarily upon federal law in arguing the issue of waiver, Leviton correctly argues that it is New York law that provides the [*7] law of decision for Leviton's claim of legal malpractice. See Chin v. Rogoff & Co., P.C., No. 05 Civ. 8360 (NRB), 2008 U.S. Dist. LEXIS 38735, 2008 WL 2073934, at *4 (S.D.N.Y. May 8, 2008) ("when a discovery dispute involves an attorney-client relationship with a New York attorney, New York privilege law applies"). Nevertheless, the parties cite both New York and federal law in support of their positions, and appear to hold the view that there is no material difference in New York and federal law on this issue. (See Pl.'s Br. at 2.)

Under Second Circuit law, waiver of attorney-client privilege may occur,when a client testifies concerning portions of the attorney-client communication, . . . when a client places the attorney-client relationship directly at issue, . . . and when a client asserts reliance on an attorney's advice as an element of a claim or defense.
    In re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (quoting Sedco Int'l S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir. 1982)). Courts have recognized that a party need not explicitly rely upon advice of counsel to implicate privileged communications. Instead, advice of counsel may be placed in issue where, for example, a party's state of mind, such as his [*8] good faith belief in the lawfulness of his conduct, is relied upon in support of a claim of defense. Because legal advice that a party received may well demonstrate the falsity of its claim of good faith belief, waiver in these instances arises as a matter of fairness, that is, it would be unfair to allow a party to "use[] an assertion of fact to influence the decisionmaker while denying its adversary access to privileged material potentially capable of rebutting the assertion." John Doe Co. v. United States, 350 F.3d 299, 306 (2d Cir. 2003); accord County of Erie, 546 F.3d at 229; see also Bilzerian, 926 F.2d at 1292; von Bulow, 828 F.2d at 103; Am. S.S. Owners Mut. Prot. and Indem. Ass'n v. Alcoa S.S. Co., 232 F.R.D. 191, 199 (S.D.N.Y. 2005).

As the Second Circuit has cautioned, however, determinations of fairness must be decided on a case-by-case basis, in the specific context in which the privilege has been asserted, rather than on the basis of generalizations. See John Doe, 350 F.3d at 302. Moreover, in the Erie decision, the Second Circuit reined in what it perceived to be an overbroad invocation of the fairness doctrine, based on principles set forth in Hearn v. Rhay, 68 F.R.D. 574 (E.D. Wash. 1975). [*9] Under the Hearn standard, an implied waiver or forfeiture of privilege would be found if:
(1) assertion of the privilege was a result of some affirmative act, such as filing suit by the asserting party; (2) through the affirmative act, the asserting party has put the protected information at issue by making it relevant to the case; and (3) the application of the privilege would have denied the opposing party access to information vital to the defense.
Id. at 581. In Erie, the Second Circuit concluded that simply because privileged information is relevant to a claim or defense in the case does not give rise to an implied waiver; rather, to forfeit privilege, "the party must rely on privileged advice from his counsel to make his claim or defense." Erie, 546 F.3d at 229. The court declined, however, to specify what degree of reliance is required."
 

Egnotovich v. Katten Muchin Zavis & Roseman LLP, 604101/06 , Decided January 23, 2008 ,Justice Bernard J. Fried  NEW YORK COUNTY ,Supreme Court Plaintiffs joined a vacation club in which they each deposited $ 400,000, and the group was to purchase or lease apartments or houses in prime vacatiion spots. These spots included Paris, Mexico, Teluride, and other hot spots. More than $1.6 million was collected, and the Katten law firm drafted escrow agreements in which it was to hold 80% of the collections and pay them out when the club gave the law firm vouchers. The money was collected and paid out.

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."
 

On Appeal:

" Contrary to plaintiffs' contentions, the "Punta Esmeralda" development agreement was an authorized purpose because it constituted a binding contract. It contained an exchange of promises and "all of the essential terms of the contract" (Conopco, Inc. v Wathne Ltd., 190 AD2d 587, 588 [1993]). Accordingly, the escrow agreement authorized those disbursements. Moreover, the escrow agent properly disbursed some escrowed funds before the parties had fully satisfied their obligations under the Punta Esmeralda agreement or other payment triggers had occurred (see e.g. Roan/Meyers Assoc., L.P. v CT Holdings, Inc., 26 AD3d 295, 296 [2006]), since the escrow agreement required that defendant disburse "the amount evidenced by such agreements" for "contractually committed expenditures."

The economy stalls, the stock market falls, big investment schemes become exposed, and huge real estate projects run into problems.  This weekend'sNY Times discussed how big name real estate players can run into problems, but it is the investors who lose the money.  Here, in GSO RE Onshore LLC v Sapir ;2010 NY Slip Op 52138(U) ;Decided on November 24, 2010 ;Supreme Court, New York County ; Fried, J.  we see how one of the big players got into some problems.
 

"On October 24, 2006, GSO, as lender, and SDS William Street Mezz LLC (SDS), as borrower, entered into an agreement under which GSO would loan SDS a principal amount of up to $65.5 million, at an interest rate of 18% per year. SDS sought the loan to fund the development and construction of a building of condominium apartments, with ancillary parking [*2]and retail, at 15 William Street, New York, New York (the Project). The loan was evidenced by an October 24, 2006 note made by SDS to the order of GSO, obligating SDS to pay GSO the principal sum of $58 million, plus interest. "

"As a condition for making the loan, GSO required that it be personally guaranteed by someone with the ability to repay it in the event of SDS's default. SDS offered Sapir, an investor in the Project, as the guarantor. On October 24, 2006, Sapir and GSO entered into a guaranty (the Guaranty) in which Sapir personally and unconditionally guaranteed payment and performance of all of SDS's obligations under the Loan Documents. In paragraphs 3 and 10 of the Guaranty, Sapir agreed to waive any defenses that he might have to an action against him under the Guaranty, except for the defense of actual timely performance of his obligations under the Guaranty. Sapir further agreed to waive any right to notice of default or demand for payment. "

"In opposition to the motion and in support of the cross motion, Sapir's son, Alex Sapir (A. Sapir) submits an affidavit in which he explains that he is the president of the Sapir Organization and a member of The Sapir Group LLC (the Sapir Group), a privately held, New York-based real estate holding and development firm. Sapir is the chairman of the Sapir [*3]Organization. A. Sapir states that he ran the Sapir Group's day-to-day negotiations of the loan transactions underlying this action.A. Sapir explains that, in 2005, the Sapir Group started to develop the Project. In connection therewith, the Sapir Group partnered with an entity controlled by S. Lawrence Davis and an entity controlled by the Sapir Group's attorney in connection with the Project, Robert J. Ivanhoe (Ivanhoe) of the law firm Greenberg Traurig LLP. Ivanhoe formed Strategic William Street LLC, the entity through which he was a partner in the Project, with a 5% interest therein. A. Sapir states that Ivanhoe continued to represent SDS, including the Sapir Group (which holds a 90% interest in the Project) in the negotiation of the terms of the loan, including the Guaranty.

A. Sapir contends that GSO knew from the beginning that Ivanhoe was representing the Sapir Group in connection with the loan as well as Sapir in connection with the Guaranty. According to A. Sapir, GSO realized that Ivanhoe, as a partner in the Project, had a conflict of interest. A. Sapir explains that, in the stronger economic times of 2006, the parties predicted profits in the Project that would have netted Ivanhoe's company $15 million, such that GSO knew that Ivanhoe had a strong incentive to complete the deal. According to A. Sapir, because of this knowledge, GSO presented the one-sided Guaranty to Ivanhoe, who then presented it to Sapir. A. Sapir asserts that GSO was aware that a disinterested lawyer without a conflict of interest would not advise Sapir to sign the Guaranty. In his affirmation, Sapir's attorney, Stephen B. Meister, states that it is unheard of for investors such as GSO to earn such high rates of return when there is no risk involved because the returns are guaranteed by a net worth guarantor."

"GSO has established its prima facie entitlement to judgment as a matter of law because the undisputed facts establish GSO's underlying loan to SDS, Sapir's personal guaranty thereof and the failure to make payment in accordance with their terms. E.D.S. Sec. Sys. v Allyn, 262 AD2d 351, 351 (2d Dept 1999); see also Hotel 71 Mezz Lender LLC v Mitchell, 63 AD3d 447, 448 (1st Dept 2009).

Sapir has not established the existence of any defense to GSO's prima facie case, because the Guaranty contains a waiver-of-defenses provision. Such a provision in a guaranty is valid and enforceable, and bars, as a matter of law, any defenses a guarantor might otherwise assert in an action to recover under its guaranty. Citibank v Plapinger, 66 NY2d 90 (1985); Red Tulip LLC v Neiva, 44 AD3d 204, 209-10 (1st Dept 2007).

"I stated at oral argument, without opining on the merits, that Sapir may have a claim against Ivanhoe. GSO also notes in its papers that Sapir, if he can prove his claims, may seek to bring a separate damages action against Ivanhoe for alleged breach of fiduciary duty and/or legal malpractice, and against GSO for allegedly aiding and abetting Ivanhoe's alleged breach. Any such possible claims, however, can not be asserted as defenses to an unconditional guarantee. "

Criminal defense legal malpractice cases are so rare that the 4th Department found but a single case to discuss in the decision in Dombrowski v Bulson  ;2010 NY Slip Op 09625 ; Decided on December 30, 2010 ;Appellate Division, Fourth Department .  Plaintiff was convicted, lost on appeal, argued ineffective assistance of counsel, lost, tried to take an appeal to the AD, lost, finally got to US District Court and gained habeas relief.  He was not retried, and the case was dismissed.
 Dombrowski discusses two aspects of damages in legal malpractice cases.  One is whether one might receive compensation for the incarceration and whether one may receive compensation for lost wages.  Plaintiff won on the first prong, which is the exception to the rule that one may not obtain non-pecuniary damages in legal malpractice.

"It is well settled that non pecuniary damages are not recoverable in a legal malpractice action involving the negligence of an attorney in a civil matter (see e.g. Wolkstein v Morgenstern, 275 AD2d 635, 637; Dirito v Stanley, 203 AD2d 903). Here, however, the issue before us is whether that rule should also apply to legal malpractice actions where the underlying matter is criminal rather than civil in nature. The only New York appellate court decision on point is that of the First Department in Wilson v City of New York (294 AD2d 290), which held that recovery of nonpecuniary damages is not permitted. In our view, the reasoning of the First Department in Wilson is not persuasive, and we therefore decline to follow the holding in Wilson.

"It is fundamental to our common-law system that one may seek redress for every substantial wrong. The best statement of the rule is that a wrong-doer is responsible for the natural and proximate consequences of his [or her] misconduct' " (Battalla v State of New York, 10 NY2d 237, 240; see Derby v Prewitt, 12 NY2d 100, 105-106). Where emotional or other nonpecuniary loss is a direct result of a defendant's breach of duty, a plaintiff may recover damages for such loss (see generally Martinez v Long Is. Jewish Hillside Med. Ctr., 70 NY2d 697, 699; Kennedy v McKesson Co., 58 NY2d 500, 504-506). The risk of imprisonment is a direct result of attorney malpractice in a criminal case and, indeed, it is the primary risk involved in most criminal cases. In our view, a cause of action for criminal legal malpractice is analogous to causes of action for false arrest and malicious prosecution, both of which allow recovery for the plaintiff's loss of liberty resulting from the plaintiff's wrongful incarceration (see Strader v Ashley, 61 AD3d 1244, lv dismissed 13 NY3d 756; Lynch v County of Nassau, 278 AD2d 205; see generally Britt v Legal Aid Socy., 95 NY2d 443, 448). We thus conclude that a plaintiff who establishes that he or she was wrongfully convicted due to the malpractice of his or her attorney in a criminal case may recover compensatory damages for the actual injury sustained, i.e., loss of liberty, and any consequent emotional injuries or other losses directly attributable to his or her imprisonment. "

In an otherwise garden or varietal attorney fee dispute with a legal malpractice defense, we ran across the "French Person" defense to attorney fees for the first time.  Justice Gische, in Singer v Adler ;2010 NY Slip Op 33439(U); December 13, 2010; Sup Ct, NY County gave it short shrift. 

"This action is based upon claims for legal services rendered by plaintiff, Stephen Sayre Singer, to defendant, Joel A. Adler. Adler brings a pre-answer motion to dismiss the verified complaint against him on the basis that it is barred by the statute of limitations and alternatively, he is a “French person” and a New York Court does not have personal jurisdiction over him, pursuant to Article 14 of the Civil Code of the Republic of France. Both parties are attorneys at law and each is self represented in this action."

"Defendant generally claims there is no personal jurisdiction over him because he  is a “French person.” Whether this argument pertains to long arm jurisdiction or service of process, it fails.
CPLR 5 302 provides that a court may assert jurisdiction over a non-domiciliary when the non-domiciliary “transacts any business within the state” and the cause of action arises out of that business. See CPLR 302 (a)(l). In order to have personal jurisdiction over a defendant, it is essential that the suit against the non-domiciliary have some “articulable nexus” to the business transacted. See McGowan v, Smith, 52 NY2d 268, 272 (1981). The basis of plaintiffs complaint, premised on plaintiffs performance of legal services for defendant, and the non-payment of legal fees, while defendant was domiciled in New York, amounts to “transaction of business within the state” and has an “articulable nexus” to the business transacted, specifically the provision of legal
services. Therefore, personal jurisdiction over defendant is proper. "

Irony has little place in litigation, yet it abounds.  In Perez-Faringer v Heilman ; 2010 NY Slip Op 09238 ; Decided on December 14, 2010 ; Appellate Division, Second Department  plaintiff, pro-se in the action below, and in the appeal, has had the action dismissed, for the mere and easily avoidable failure to serve a complaint after demand.
 

The unfortunate juxtaposition of a case within a case within a case is unique to legal malpractice litigation.  In a meta- sort of way it is symmetric.  "The plaintiffs purchased a parcel of real property located in Scarsdale (hereinafter the subject property), from the defendant Lila Lambert Carloni. In this real estate transaction, the plaintiffs were represented by the defendant Julia Heilman and Carloni was represented by the defendant Sue Freedman. Subsequent to the closing of title, the plaintiffs discovered that the property upon which an easement which they needed to park their cars would not be maintained or repaired by the Village of Scarsdale, as represented by Carloni in the contract. In addition, they found out that the third floor of the home on the property, which had been converted into living space, and the front deck, did not have certificates of occupancy.

On September 29, 2008, the plaintiffs pro se filed a summons with notice at the Westchester County Clerk commencing an action against, among others, Heilman, Carloni, and Freedman, inter alia, to recover damages for legal malpractice, fraud, and breach of fiduciary duty. "

"On February 9, 2009, Freedman served a demand for a complaint on the plaintiffs. Since Freedman mailed this demand to the plaintiffs, the plaintiffs had until March 6, 2009, to serve their complaint. The plaintiffs failed to serve a complaint upon Freedman by that date. [*2]

In an order entered July 14, 2009, the Supreme Court granted Freedman's motion to dismiss the action pursuant to CPLR 3012(b) insofar as asserted against her. In a second order also issued the same day, the Supreme Court denied the plaintiffs' motion, inter alia, to extend their time to serve their complaint. We affirm. "

While the guiding principals are clear and unambiguous, the facts and calculations underlying this matrimonial legal malpractice case are daunting.  Holding companies, general partners, intra-company transfers, straw-men and the like make the financial analysis difficult.

Justice Ramos, in TPR Inv. Assoc., Inc. v Fischer;  2010 NY Slip Op 33370(U);  December 9, 2010;  Supreme Court, New York County;  Docket Number: 603509/07 teases out whether the wife may sue the attorneys over their handling of a international net of financial transactions, including the "missing million."  Rather than re-cap the financial shenanigans, we look at the guiding principals:
 

"This action for fraud and malpractice arises out of the bitter divorce between plaintiff Dalia Genger (Mrs. Genger) and her former husband, defendant Arie Genger (Mr. Genger). Plaintiff TPR Investment Associates, Inc. (TPR) is a holding company, comprised of plaintiff D&K Limited Partnership (D&K).
Mr. Genger was formerly the president, chairman, and controlling shareholder of TPR. D&K, in turn, was ninety-six percent owned by the Gengers' children, Sagi and Orly, while Mrs. Genger owned
the remaining four percent and was its general partner. The facts set forth herein are taken from the pleadings  and the Sonnenschein Defendants' Rule-19A Statement. It is noted that plaintiffs failed to comply with Part 53 Practice Rules which expressly require the submission of a Rule 19-A Statement of Undisputed Facts on summary judgment motions.

TPR’s main asset was a controlling stake in non-party Trans- Resources, Inc. ( T R I ) a holding company of domestic and foreign subsidiaries that manufacture fertilizer and chemicals. From
1995 to 2005, TPR held fifty-three percent of TRI‘s shares. Former defendant William Dowd was the president of TRI and an officer of TPR, while Mr. Genger also purportedly controlled T R I .
Defendant Klimerman, a partner at Sonnenschein Nath &Rosenthal LLP (Sonnenschein) together, the Sonnenschein Defendants) represented Mr. Genger during the divorce proceedings.

To establish a claim for common law fraud, a plaintiff must demonstrate that defendants knowingly misrepresented a material fact upon which the plaintiff justifiably relied and caused 
damage (Ross v L o u i s e Wise Services, Inc., 8 NY3d 478, ).
The Sonnenschein Defendants correctly assert that the terms of the Settlement belie any  contention that Mrs. Genger justifiably relied upon M r . Genger's N e t Worth Statement, or was
damaged from any omissions. First, the Settlement states that the equitable distribution contemplated thereby is intended to "effect approximately a 50-50 distribution of their marital assets and represent and set forth a fair, reasonable and suitable distribution" of property"

"The claims against the Sonnenschein Defendants for violation of Judiciary Law 487 also must be dismissed. Plaintiffs f a i l to submit any evidence that the Sonnenschein Defendants intentionally sought to deceive the court in the divorce proceeding to the extent of the omissions. As to the Shikmim Note, Mrs. Genger only alleges ”on information and belief” that
the Sonnenschein Defendants were aware of the Shikmim Note to begin with."

This holiday week, swept with snow and high winds, brings a case which re-emphasizes our meme that legal malpractice may show up anywhere attorneys are at work.  Here in Country Club Partners, LLC v Goldman ;  2010 NY Slip Op 09309 ;  Decided on December 16, 2010 ;  Appellate Division, Third Department   we see an allegation of legal malpractice (not addressed here) and of breach of fiduciary duty in the real estate transactions surrounding a country club transaction.
 

"Plaintiff's breach of fiduciary duty claim relates, in part, to Goldman's allegedly improper actions occurring after SGMS's representation of plaintiff ceased, and plaintiff's malpractice claim relates, in p art, to defendants' allegedly improper actions occurring during SGMS's representation of plaintiff,  he two claims are not duplicative (see Kurman v Schnapp, 73 AD3d 435, 435-436 [2010]; Ulico  Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9 [2008]; Weil, Gotshal &  Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]). "

"The attorney-client relationship "imposes on the attorney the duty to deal fairly, honestly and with undivided loyalty . . . including maintaining confidentiality, avoiding conflicts of interest,  operating competently, safeguarding client property and honoring the clients' interests over the  lawyer's" (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 9 [internal  quotation marks and citations omitted]; see Krouner v Koplovitz, 175 AD2d 531, 532 [1991]). To  recover on its claim, plaintiff is required to "prove both the breach of a duty owed to it and damages  sustained as a result" (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 10  internal citation omitted]). That is, a client must establish "actual and ascertainable  damaes" (Boone v Bender, 74 AD3d 1111, 1112 [2010] [internal quotation marks and citations ommitted]; see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]) that would not have occurred "but for" the attorney's conduct (Boone v Bender, 74 AD3d at 1113; see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 10; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d at 271-272). "For defendants to succeed on their motion for summary judgment here, they were required to present evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements" (Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d at 926 [citations omitted]; see Boone v Bender, 74 AD3d at 1112-1113).

Here, summary judgment dismissing plaintiff's cause of action alleging a breach of fiduciary duty was properly granted since defendants met their burden on their motion and, in opposition, plaintiff failed to raise a question of fact that defendants' breach proximately caused it any ascertainable damages (see Boone v Bender, 74 AD3d at 1113; Brodeur v Hayes, 18 AD3d 979, 980-981 [2005], lv dismissed and denied 5 NY3d 871 [2005]). In support of their motion, defendants presented Kime's affidavit, in which she stated that Michael Gordon, a member of [*3]plaintiff, contacted her about acquiring an option to purchase a portion of her property. Kime stated that she advised Gordon that she was not interested in selling an option to only a portion of her property, but instead desired to sell outright the entire parcel, including its residence. According to Kime, neither Gordon nor any other member of plaintiff made subsequent offers to purchase the entire parcel and negotiations with plaintiff ceased. Kime was thereafter approached by several people interested in purchasing the property and, in August 2006, she received two offers to purchase the entire parcel, one from Goldman and another from Todd Britton and Mary Britton, both for $435,000. Kime stated that she decided to accept Goldman's offer over the Brittons' offer because it included a higher down payment ($100,000 compared to $5,000) and was, in the opinion of her attorney, the stronger offer. In opposition to defendants' motion, Gordon submitted an affidavit in which he stated that negotiations with Kime progressed to the point where an offer in the amount of $400,000 was made and an option agreement was drafted. "

Legal malpractice litigation is often viewed with a gimlet eye. This is a 50's expression meaning a sharp or knowing look.  Courts often believe that legal malpractice counterclaims are merely a method of trying not to pay legal fees.  As has been observed elsewhere, attorney fees are dear to the heart of attorneys.

Butterman & Kahn, LLP v Yildiz;  2010 NY Slip Op 33440(U);  December 13, 2010;  Sup Ct, NY County;  Judge: Judith J. Gische seems to be an example of this phenomenon.  "An account stated represents an agreement between the parties reflecting mounts due on prior transactions. Jim-Mar Cwp. v. Aquatic Constr., 195 A.D.2d 868 (3d dept. 1993), Iv. denied 82 N.Y.2d 660 (1993). The receipt and retention of an account, without objection, within a reasonable period of time, gives rise to an account stated entitling the moving party to summary judgment in its favor. Morrison Cohen Siflger & Weinstein. LLP v. Ackerman, 280 A.D.2d 355 (Iat Dept. 2001). Where either no account
has been presented or there is any dispute regarding the correctness of the account, the cause of action fails. M & A Const, CQrD. v. McTaque, 21 A.D.3d 610 (3rd Dept. 2005). plaintiff, but has provided no proof other than her own affidavit.

Here, plaintiff has established a prima facie cause of action for account stated against the defendant. Plaintiff has established that it sent detailed billing statements to the defendant reflecting the legal serviced provided and the fees and disbursements incurred on the defendant‘s behalf. Plaintiff has also established that the defendant made partial payments on many of these billing statements, and otherwise retained same without objection. Here, the defendant’s retention of the bills and her forty-six partial payments give rise to an account stated (see Morrison Cohen v, Wate rs, 13 AD3d 51 [Ist Dept 20041; Morrison Cohen Sinqer 8 Weinge in, LI P v. Ackerman, 280 AD2d 355 [lst Dept 2001J;s ee also Moses & Sinqer LLP v. S&S Machinew Corp., 251 AD2d 271 [ lst Dept 1998]),

The defendant has failed to raise a triable issue of fact on the issue of timely objection. Her argument that Attorney Butterman’s statement on the record at a court Page6of 12
[* 7] proceeding that the defendant owed $40,000 is rejected because is not relevant to issue
of whether the defendant timely objected to the bills she indisputably received. It is undisputed that the defendant received each and every one of the bills that the plaintiff sent. Moreover, Attorney Butterman’s misrepresentation of the amount that the defendant owed to plaintiff has been explained by plaintiff as a reasonable error. Attorney Butterman supposedly confused the amount the defendant owed to his firm with the total child support arrears owed by Mr. Yildiz at that point. *
Indeed, the defendant made another partial payment to the plaintiff after the September 2009 court appearance where Attorney Butterman misspoke. Even this partial payment was a recognition of the defendant’s indebtedness to the plaintiff (Boulanqer, Hicks. $ tein & Churchill, P,C, v. Jac obs, 235 AD2d 353 [lst Dept 19971). The defendant’s claims that Attorney Butterman “lied” to the court or downplayed the amount the defendant owed to his firm is a red herring.  Any claims that the defendant made timely objections in writing are unsubstantiated."

Equitable Estoppel is a principal which comes into play most often when a case is not commenced within the statute of limitations. The theory is that plaintiff was lulled into not starting the case by a wrongful act of defendant. Considering that blown statutes of limitations are one well recognized basis for legal malpractice cases, the two concepts are suitably intertwined.

In a recent legal malpractice (arising from a medical malpractice case) we see Justice Shulman of Supreme Court, New York County writing:

"The doctrine of equitable estoppel may bar a defendant from asserting the statute of limitations when the plaintiff "was induced by fraud, misrepresentations or deception to refrain from filing a timely action" (Ross v Louise Wise Sews., Inc., 8 NY3d 478, 491 [2007], quoting Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]; General Stencils, lnc. v Chiappa, 18 NY2d 125, 128 [ 19661). Equitable estoppel will "bar the assertion of the affirmative defense of the Statute of Limitations where it is the defendant's affirmative wrongdoing . . . which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding" (Zumpano v. Quinn, 6 NY3d 666, 673 [2006], quoting General Stencils, lnc. v Chiappa, 18 NY2d at 128). A defendant may be precluded from.invoking a statute of limitations defense under such circumstances (Putter v North Shore Univ. Hosp., 7 NY3d 548, 552 [ZOOS], quoting Zumpano v Quinn, 6 NY3d at 673).
Where a medical malpractice claim is asserted, the patient's medical records are material to reaching a responsible decision on whether there are grounds for a lawsuit and equitable estoppel may arise where there is an unreasonable delay in delivering records to an attorney consulted in a suspected case of malpractice (Karnruddin v Desrnond, 293 AD2d 714 [2d Dept 20021). Concealment by a physician or failure to disclose his own malpractice may, in a proper case in conjunction with other factors, provide a foundation for seeking to invoke the doctrine of equitable estoppel to extend the applicable period of limitations (Simcuski v Saeli, 44 NY2d at 452).

Of critical importance, due diligence on the plaintiffs part in ascertaining the facts and commencing the action is an essential element when plaintiff seeks to invoke this doctrine. Although there are exceptions, "the question of whether a defendant should be equitably estopped is generally a question of fact'' (Putter v North Shore Univ. Hosp., 7 NY3d at 553). On the other hand, where plaintiff is timely aware of the facts requiring him to make further inquiry before the statute of limitations expires, an equitable estoppel defense to the statute of limitations is inappropriate as a matter of law (Pahlad w Brustman, 8 NY3d 901 [2007])."In Lopresti v Bamundo, Zwal & Schermerhorn, LLP;  2010 NY Slip Op 33436(U);  December 14, 2010;  Sup Ct, NY County ;  Docket Number: 100206/09;  Judge: Martin Shulman determines that equitable estoppel does not apply."This record contains no evidence of any affirmative wrongdoing or purposeful concealment on Dr. Marino’s part caused Lopresti’s delay in commencing the underlying action (see Zumpano v Quinn, 6 NY3d at 673; Kamruddin v Desmond, 293 AD2d at 71 5). Lopresti’s allegedly incorrect statements to Bamundo ZwaI as to the last date Dr. Marino treated Vito Lopresti and the delay in having a personal representative appointed cannot be held against Dr. Marino. Rather, Lopresti’s and/or Bamundo Zwal’s own inaction caused the untimely commencement of the underlying case. See, e.g., Public Adm’r of State of New York v Beth Israel Med. Ctr., 2007 WL 176380 (Sup Ct, NY County, Carey, J)(granting summary judgment dismissing action as time barred and finding that hospital should not be equitably estopped from asserting statute of limitations as a defense where plaintiffs inaction and failure to avail itself of various procedural safeguards’ prevented timely commencement of action)."

It appears that one of two law firms is to blame for plaintiff's medical malpractice fiasco.  Which is it?  InLopresti v Bamundo, Zwal & Schermerhorn, LLP, ;2010 NY Slip Op 33436(U); December 14, 2010; Judge: Martin Shulman we see a familiar problem.  A medical malpractice death case sets two different time clocks running.  In such cases, no only does the attorney have to set up a surrogate's court proceedings and at least get letters of administration, the attorney has to commence both a wrongful death and a personal injury/medical malpractice case and has to do so within a two year time frame. 

Simple, one might say; that's two years!  However, as this case demonstrates, much must be done to get things going, and the client rarely comes to the attorney in the days after the death.  Here, too much time went by. More interesting, this case demonstrates that plaintiff's attorney may well become involved in the litigation as a third party defendant."The complaint in this action for legal malpractice alleges that in the underlying medical malpractice case, Bamundo ZwaI failed to timely commence the first cause of action seeking to recover damages for Vito Lopresti’s conscious pain and suffering.  Lopresti alleges she was forced to settle the underlying wrongful death second cause of action for an amount below what she would have recovered had it not been for
Bamundo Zwal’s actions.  Bamundo Zwal has impleaded the Reiter law firm alleging that Reiter failed to properly oppose Dr. Marino’s motion for summary judgment. The third-party complaint
pleads causes of action for contribution and common-law indemnification.  Reiter served this motion for summary judgment simultaneously with its third party answer and without any discovery being conducted. In this legal malpractice action, Reiter represents both plaintiff Lopresti and itself as third-party defendant."

"Under the circumstances presented here, this court concludes that there was no basis for Reiter to pursue an equitable estoppel defense in opposition to Dr. Marino's motion in the underlying action for summary judgment dismissing the medical malpractice cause of action as time barred. As Zwal himself testified at his June 3, 2010 deposition, Dr. Marino refused to respond to  Bamundo Zwal's first request for records in May 2004 because Vito Lopresti was deceased and no personal representative had been appointed (see Motion at Exh. IO, p. 32). After Lopresti was
appointed administratrix of her husband's estate, Bamundo Zwal made a second  written request to Dr. Marino dated April 19, 2005, less than 30 days before the statute of limitations expired.
This record contains no evidence of any affirmative wrongdoing or purposeful concealment on Dr. Marino’s part caused Lopresti’s delay in commencing the underlying action (see Zumpano v  Quinn, 6 NY3d at 673; Kamruddin v Desmond, 293 AD2d at 71 5). Lopresti’s allegedly incorrect statements to Bamundo ZwaI as to the last date Dr. Marino treated Vito Lopresti and the delay in having a personal representative appointed cannot be held against Dr. Marino. Rather, Lopresti’s and/or Bamundo Zwal’s own inaction caused the untimely commencement of the underlying case. See, e.g., Public Adm’r of State of New York v Beth Israel Med. Ctr., 2007 WL 176380 (Sup Ct, NY County, Carey, J)(granting summary judgment dismissing action as time barred  and finding that hospital should not be equitably estopped from asserting statute of limitations as a defense where plaintiffs inaction and failure to avail itself of various procedural safeguards’ prevented timely  commencement of action)."

We're sure that the Appellate Division did not plan this, but shortly after the first snow of the season, and in the middle of a span of days each with temperatures less than 25 degrees, we read the following case with interest.  In Walker v Glotzer ;  2010 NY Slip Op 09126  ;  Decided on December 7, 2010 ;  Appellate Division, Second Department we see a slip on snow and ice case which as admittedly lost on the first go-around on a blown statute of limitations. 
 

"She retained the defendant attorneys to bring a personal injury suit on her behalf. After the statute of limitations had expired, the defendants contacted the plaintiff and informed her that they had failed to timely commence an action on her behalf because of a clerical error. The plaintiff thereafter commenced the instant action to recover damages for legal malpractice. "

Typically, we see the case then blown out on a lack of notice to the land owner, an inability to prove that the landowner made the situation worse rather than simple nonfeasence, or a "storm in progress" defense.  Here, however, there must have been more.  Regrettably the AD said little about the actual facts.

"Here, the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, since they failed to come forward with admissible evidence supporting their contention that their alleged malpractice did not cause the plaintiff damage because she would not have been able to establish the notice element of a premises liability action. A property owner is subject to liability for a defective condition on its premises if a plaintiff demonstrates that the owner either created the alleged defect or had actual or constructive notice of it (see Betz v Daniel Conti, Inc., 69 AD3d 545, 545; Roy v City of New York, 65 AD3d 1030, 1031; see also Gordon v American Museum of Natural History, 67 NY2d 836, 837). Under the circumstances of this case, the defendants failed to establish, as a matter of law, that the plaintiff would not have been able to prove that the premises owner did not, by its own snow and ice removal efforts, create or exacerbate the allegedly dangerous condition which caused the plaintiff's injuries (see Sut v City Cinemas Corp., 71 AD3d 759; Gil v Manufacturers Hanover Trust Co., 39 AD3d 703; see also Robles v City of New York, 56 AD3d 647; Bruzzo v County of Nassau, 50 AD3d 720)

Board of Mgrs. of the Bay Club v Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C. ; 2010 NY Slip Op 52129(U) ; Decided on December 13, 2010 ; Supreme Court, Queens County ; Markey, J. is a legal malpractice case against one of the best known and best regarded landlord law firms in NY.  Borah, Goldstein represents landlords in all phases of L&T work, and can be seen every day in the commercial L&T parts, playing the elephant in the room.  Nevertheless, this complaint says that they made a simple mistake, which cost the client extra legal fees.  Is this allegation enough for a Legal Malpractice case?  Answer: Yes.
 

"Among the services that Borah Goldstein did on behalf of the Bay Club Board was the preparation and filing of notice of a lien for unpaid common charges pursuant to section 339 of the Condominium Act. The complaint in this action alleges that the Borah Goldstein firm was negligent in drafting and filing the notice of lien, which failed to include a verification of the information set forth therein. The complaint further alleges that as a result of this negligence the Bay Club board sustained damages by requiring it to incur more litigation expenses in defending the validity of the lien."

"The defendant argues that the plaintiff did not state a claim for malpractice as the plaintiff cannot establish the essential "but for" element in a legal malpractice action, arguing that there was no proof of damages as a result of the alleged malpractice. However, a plaintiff can recover in a legal malpractice action even if it is successful in the underlying action if it incurred increased expenses due to the attorney's negligence in the handling of the action (see, DePinto v Rosenthal & Curry, 237 AD2d 482 [2nd Dept. 1997]). Here, the plaintiff sufficiently alleged that it has sustained ascertainable damages as a consequence of increased litigation expenses that it incurred attributable to the unverified lien. Plaintiff argues that it has stated a cause of action for legal malpractice. "

Proving the point that attorneys should not dabble in areas of the law unfamiliar them, we learned of the "7 month Rule" in estate and trust work.  The rule is that an executor is not liable for good faith distribution of estate proceeds if the distribution takes place at least 7 months after the death. In this case the executrix became personally liable to the DSS for monies distributed.

Central to Orosz v Eppig ;2010 NY Slip Op 33312(U); November 16, 2010 ;Supreme Court, Suffolk County ;Judge: Joseph C. Pastoressa is a discussion of the obligations of an attorney retained to investigate and handle a transactional or litigation matter.  Similar in our minds to a full-service elevator contract, it requires the attorney to do more than take the information from the client and make certain filings.  It requires the attorney to investigate, determine and act.

"An attorney may not shift to the client the legal responsibility the attorney was specifically hired to
undertake because of the attorney’s superior knowledge (see, Hart v Carro, Spanbock, Kaster &
Cuiffo, 21 1 AD2d 617, 619; Cicorelli v Capobianco, 90 AD2d 524, 525, affd 59 NY2d 626).
An attorney may be liable for ignorance of the rules of practice, for failure to comply with conditions
precedent to suit, for neglect to prosecute or defend an action, or for failure to conduct adequate legalresearch (see, Conklin v Owen, 72 AD3d 1006; McCoy v Tepper, 26 1 AD2d 592; Gardner v Jacon,148 AD2d 794, 796; Grago v Robertson, 49 AD2d 645,646). While an attorney has a responsibility toinvestigate and prepare every phase of a client’s case, an attorney should not be held liable for ignoranceof facts which the client neglected to tell him or her (see, Green v Conciatori, 26 AD3d 410, 41 1;Parksville Mobile Modular v Fabricant, 73 AD2d 595, 598)."

Bernardi v Spyratos ;  2010 NY Slip Op 09097 ;Decided on December 7, 2010 ;Appellate Division, Second Department  is the story of two neighbors who have locked horns over a waterfront property.  There are issues of encroachment, adverse possession, hidden water damage, legal malpractice and failures to take a survey at or before closing.  Important to this article is whether the attorneys for buyer failed to advise the client to get a new survey.  Interestingly there is no letter or writing on the issue.
 

"In order to recover damages against the Wilcox defendants for legal malpractice, the plaintiffs must show (1) that the Wilcox defendants failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and (2) that such negligence was a proximate cause of the actual damages sustained (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sayer, 8 NY3d 438, 442). Here, the plaintiffs submitted the deposition testimony of Wilcox, in which she repeatedly testified that she advised the plaintiffs of the possibility of obtaining an updated survey, which they refused to obtain. Accordingly, the plaintiffs failed to meet their initial burden of establishing an absence of triable issues of fact as to the alleged malpractice. Moreover, given that the underlying boundary dispute has not yet been resolved, the plaintiffs failed to establish causation or damages as a matter of law (id., see Northrop v Thorsen, 46 AD3d 780, 782). Accordingly, that branch of the plaintiffs' motion which was for summary judgment on the complaint insofar as asserted against the Wilcox defendants was properly denied (see generally Zuckerman v City of New York, 49 NY2d at 562).

However, the Supreme Court should have granted the plaintiffs leave to amend the complaint in Action No. 2 to assert a claim against the Wilcox defendants based upon their alleged failure to explain or delete certain clauses in the contract of sale. In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Lucido v Mancuso, 49 AD3d 220; Unger v Leviton, 25 AD3d 689). Here, there will be no prejudice or surprise to the Wilcox defendants by virtue of the amendment. They were aware of the plaintiffs' allegations against Harrison concerning the condition of the premises, and Wilcox was extensively questioned during her deposition about her advice to the plaintiffs concerning the relevant clauses. Further, the allegation is not patently nonmeritorious. However, the plaintiffs' proposed allegation against the Wilcox defendants in paragraph 106 of the proposed amended complaint, concerning the property condition disclosure statement, is patently without merit and was properly disallowed, as the Wilcox defendants were not the owners of the subject property (see Real Property Law § 465[1]). "

 We continue to the second issue raised in Leviton Mfg. Co., Inc., v. Greenberg Traurig LLP, et al., , 09 Civ. 8083 (GBD) (THK); U.S. District Court, Southern District illustrates theprincipals of "at issue" attorney-client privilege and " work-product" discovery. 
 

What documents must be turned over to defendants when they are sued?  Must documents from successor attorneys be turned over?  The Court addressed the questions here:

"In sum, while Greenberg Traurig is free to attempt to demonstrate that factors other than its failure to timely file the patent applications resulted in the loss of the economic value of the patents, it is not necessary to invade Leviton's confidential communications with its attorneys in order to do so.

The same analysis applies to documents withheld on the basis of the work-product doctrine, although very few documents on Leviton's privilege log appear to have been withheld solely on the basis of work-product. See Veras Inv. Partners, 52 A.D.3d at 372, 860 N.Y.S.2d at 82-83 (where plaintiffs brought malpractice claim based, inter alia, on representation during regulatory investigations, subsequent settlement agreement with regulators did not place in issue or waive successor attorney's work-product with respect to rationale for entering into the settlementagreement); Deutsche Bank, 43 A.D.3d at 66, 837 N.Y.S.2d at 25 (commencement of indemnity action did not, in itself, imply an at issue waiver of the protection of the attorney-client privilege or work-product doctrine, for documents concerning the defense and settlement of the underlying action); Goldberg v. Hirschberg, 10 Misc. 3d at 298-99, 806 N.Y.S.2d 337-338 ("work-product protection…,like the attorney-client privilege, may be waived pursuant to the 'at issue' doctrine").

However, there is one caveat on work-product. The work-product doctrine is inapplicable to documents prepared for, or in anticipation of, submission to the Patent Office. The prosecution of a patent is not, standing alone, in anticipation of litigation. See In re Rivastigmine Patent Litig., 237 F.R.D. 69, 85 (S.D.N.Y. 2006) ("In patent matters, the work product doctrine is less likely to be applicable, because the drafts of patent applications, unlike draft legal memoranda, are generally prepared prior to any expectation of litigation."); Genal Strap, Inc. v. Dar, No. CV2004-1691 (SJ) (MDG), 2006 WL 525794, at *3 (E.D.N.Y. Mar. 3, 2006) ("work performed by an attorney to prepare and prosecute a patent application does not fall within the parameters of the work-product protection because it is not created 'in anticipation of litigation'"); Softview Computer Prods. Corp. v. Haworth, Inc., No. 97 Civ. 8815 (KMW) (HBP), 2000WL 351411, at *5 (S.D.N.Y. Mar. 31, 2000) ("Documents that are generated in connection with a patent application are not protected by the work-product doctrine simply because an issued patent may give rise to an infringement action."); Minebea Co. Ltd. v. Minebea Co., Ltd., 143 F.R.D. 494, 499 (S.D.N.Y. 1992) ("Generally, work performed by an attorney to prepare and prosecute a patent application does not fall within the parameters of the work-product protection, since the prosecution of a patent application is a non-adversarial ex parte proceeding.")."

Discovery in legal malpractice litigation often turn around the "but for" portion of the case.  The question of why was the underlying case ultimately lost, why didn't plaintiff succeed with successor counsel and why are we responsible for this bad outcome, are often heard, and usually must be dealt with.  Here in Leviton Mfg. Co., Inc.,  v. Greenberg Traurig LLP, et al., , 09 Civ. 8083 (GBD) (THK); U.S. District Court, Southern District illustrates  theprincipals of "at issue" attorney-client privilege and " work-product" discovery.

"Plaintiff Leviton Mfg. Co. ("Leviton") alleges in its Complaint that Defendant Greenberg Traurig LLP and certain individual attorneys at Greenberg Traurig were professionally negligent in prosecuting a number of patent applications before the United States patent and Trademark Office ("USPTO" or "Patent Office"). As a consequence, the "on-sale bar" foreclosed the patentability of Leviton's inventions, because the inventions, were on sale in the United States for more than one year prior to the date of the patent applications.

The attorney-client privilege may be waived. Although Defendants' rely primarily upon federal law in arguing the issue of waiver, Leviton correctly argues that it is New York law that provides the law of decision for Leviton's claim of legal malpractice. See Chin v. Rogoff & Co., P.C., No. 05 Civ. 8360 (NRB), 2008 WL 2073934, at *4 (S.D.N.Y. May 8, 2008) ("when a discovery dispute involves an attorney-client relationship with a New York attorney, New York privilege law applies"). Nevertheless, the parties cite both New York and federal law in support of their positions, and appear to hold the view that there is no material difference in New York and federal law on this issue. (See Pl.'s Br. at 2.)

Under Second Circuit law, waiver of attorney-client privilege may occur,

when a client testifies concerning portions of the attorney-client communication,…when a client places the attorney-client relationship directly at issue,…and when a client asserts reliance on an attorney's advice as an element of a claim or defense.

In re County of Erie, 546 F.3d 222, 228 (2d Cir. 2008) (quoting Sedco Int'l S.A. v. Cory, 683 F.2d 1201, 1206 (8th Cir. 1982)). Courts have recognized that a party need not explicitly rely upon advice of counsel to implicate privileged communications. Instead, advice of counsel may be placed in issue where, for example, a party's state of mind, such as his good faith beliefin the lawfulness of his conduct, is relied upon in support of a claim of defense. Because legal advice that a party received may well demonstrate the falsity of its claim of good faith belief, waiver in these instances arises as a matter of fairness, that is, it would be unfair to allow a party to "use[] an assertion of fact to influence the decisionmaker while denying its adversary access to privileged material potentially capable of rebutting the assertion." John Doe Co. v. United States, 350 F.3d 299, 306 (2d Cir. 2003); accord County of Erie, 546 F.3d at 229; see also Bilzerian, 926 F.2d at 1292; von Bulow, 828 F.2d at 103; Am. S.S. Owners Mut. Prot. and Indem. Ass'n v. Alcoa S.S. Co., 232 F.R.D. 191, 199 (S.D.N.Y. 2005).

Like the Second Circuit, New York courts will not find an at issue waiver merely because privileged information is relevant to the issues being litigated; "(r]ather, at issue waiver occurs when the party has asserted a claim or defense that he intends to prove by use of the privileged materials," Deutsche Bank, 43 A.D.3d at 23, 837 N.Y.S.2d at 64 (internal quotation marks omitted; accord Veras Inv. Partners, LLC v. Akin Gump Strauss Hauer & Feld LLP, 52 A.D.3d 370, 374, 860 N.Y.S.2d 78, 82 (1st Dep't 2008), or, where rather than being merely relevant, "the privileged documents are indispensable to a party's claims or defenses." Chin, 2008 WL 2073934, at *5; Carl v. Cohen, 23 Misc. 3d 1110 (A), 886 N.Y.S.2d 66 (Table), 2009 WL 997517, at *3 (S. Ct. N.Y. Cty. 2009). For example, where a claim of malpractice is premised upon reliance on the erroneous advice of predecessor counsel, under both New York and federal law, the legal advice received from any other counsel on the same issue is placed at issue. See, e.g., Goldberg v. Hirschberg, 10 Misc. 3d 292, 297-98, 806 N.Y.S.2d 333, 337 (S. Ct. N.Y. Cty. 2005) (citing to the "remarkable similarity" to Bank Brussels Lambert v. Fiddler, Gonzalez & Rodriquez, No. 96 Civ. 7233 (LMM) (RLE), 2003 WL 21277139 (S.D.N.Y. June 2, 2003), aff'd 2005 WL 756859 (S.D.N.Y. April 1, 2005), for the proposition that "because plaintiff was claiming that it relied on defendant's advice on a certain issue to its detriment, the legal advice it received from any other lawyers on that issue related to the reasonableness of plaintiff's reliance and was not subject to the attorney-client privilege")."
 

Legal malpractice proofs have 4 elements.  They are Departure, Proximity, "But for" and Ascertainable damages.  The sad truth is that in almost every human endeavor, one may find departures.  In a case that goes to trial, there are arguably many departures.  A simple question must be asked:  "Did this departure proximately cause permanent damage, and would there have been a different outcome "but for" this departure?  Often the answer is no.

In Pozefsky v Aulisi ;  2010 NY Slip Op 08999 ;  Decided on December 7, 2010 ;  Appellate Division, First Department we see one such example. This was a medical malpractice case in which the claim was that plaintiff "sought damages resulting from a breast implant rupture allegedly causing her to suffer systemic tissue disease and/or other autoimmune/rheumatic conditions" by virtue of silicone breast implants.
 

Her expert at trial was not permitted to testify because defendants failed to produce the proposed expert for depositions.  Does this make a difference, and can she win a legal malpractice case?

No, says the Court.  The expert would not have been permitted to testify in any event, because there was no scientific validity to his proposed testimony.

"The record demonstrates that plaintiff's proposed expert would not have been allowed to testify at the federal court trial in which plaintiff sought damages resulting from a breast implant rupture allegedly causing her to suffer systemic tissue disease and/or other autoimmune/rheumatic conditions, regardless of any negligence on the part of defendants in failing to produce the proposed expert for depositions, since his testimony on the issue of causation would not have survived a hearing pursuant to Daubert v Merrell Dow Pharms., Inc. (509 US 579 [1993]).

In granting a motion to preclude the testimony of two of plaintiff's designated experts, the federal court conducted a thorough Daubert analysis with respect to the issue of causation in the context of injuries purportedly caused by or associated with silicone breast implants. The court reviewed the reports of three groups of independent experts, as well as studies published by many well known national and international, medical and scientific organizations, which all concluded that there was insufficient evidence to support the allegation that silicone breast implants are associated with defined or atypical connective tissue diseases, or other autoimmune-rheumatic diseases or conditions in women with such implants (see Pozefsky v Baxter Healthcare Corp., 2001 WL 967608, 2001 US Dist LEXIS 11813 [ND NY 2001]). The federal court also cited to [*2]cases where the proposed expert was precluded from testifying on the causation issue since his theory that silicone implants could cause undifferentiated connective tissue diseases was not based on scientifically valid methodologies and has not been accepted in the scientific community (see Havard v Baxter Intl. Inc., 2000 US Dist LEXIS 21316, *12-13 [2000]; Grant v Bristol-Myers Squibb, 97 F Supp 2d 986, 992 [2000]). "

Yesterday, we looked at  Escape Airports (USA), Inc. v Kent, Beatty & Gordon, LLP
2010 NY Slip Op 08981 ;  Decided on December 7, 2010 ;  Appellate Division, First Department in which Justice Kornreich was affirmed across the board. 
 

One defense in legal malpractice cases is that damages are speculative, conclusory, or cannot be stated in an ascertainable fashion.  This case revolved around an airport vendor's claim that the attorneys failed to advise them to insert two clauses into the contracts.  Defendants said that there could be no proof that the airlines would accept the clauses. The Court wrote:

"We also decline to upset the court's refusal to dismiss the claim to the extent it is predicated on defendant's alleged failure to include upper-limit-of-passengers and exclusivity provisions. Plaintiff has offered evidence that it suffered damages due to one airline vacating the premises during the lease period, and using the services of another lounge. Whether restrictive lease provisions would have been acceptable to the vacating airline is an issue we need not determine.

That portion of the motion addressing plaintiff's claim predicated on the occupancy agreement entered into with JFK International Air Terminal LLC was also correctly denied. The fact that plaintiff signed, and is thus bound by, the terms of this agreement does not preclude an action for malpractice against the attorney who assisted in drafting it. Plaintiff alleges that it retained defendant for the express purpose of providing advice with respect to standard terms and conditions to be incorporated in the occupancy agreement. It further alleges that defendant agreed to undertake this task, and did provide plaintiff with very specific comments regarding the standard terms and conditions, but failed to highlight or comment on the termination provision. It is axiomatic that counsel "may not shift to the client the legal responsibility it was specifically hired to undertake because of its superior knowledge" (Hart v Carro, Spanbock, Kaster & Cuiffo, 211 AD2d 617, 619 [1995]). Thus, a fact issue is presented as to whether defendant was negligent in the performance of duties within its area of expertise, and for which expertise it was retained. "

A unique principal in malpractice cases, both medical and legal is the question of professional judgment.  In medicine, it is said that "medicine is an art and not a science" and in law, it is said that a legal malpractice action may not be based solely upon a failed strategy or question of professional judgment, upon which opinions may vary.

Many legal malpractice cases have been dismissed on the principal that the complained of acts were questions of judgment, failed or not, and not a departure from good and accepted standards.  Here in this very interesting case, the First Department affirms the decision of Justice Kornreich, in Supreme Court, New York County.  In Escape Airports (USA), Inc. v Kent, Beatty & Gordon, LLP
2010 NY Slip Op 08981;;  Decided on December 7, 2010, the Court writes:
 

"The essence of plaintiff's claim is that it consulted defendant for advice concerning the individual contracts with airlines that were based on the template agreement defendant had drafted; defendant gave it bad advice in failing to recommend that a termination provision be added or otherwise advise plaintiff that such protection was lacking; plaintiff had no way of knowing that it had been given bad advice until after it signed the individual agreements; the airlines had an incentive to agree to a termination provision because plaintiff would not otherwise have been able to provide the contracted for lounge services; and but for this omission, plaintiff would not have incurred damages.

At this juncture, i.e., the motion to dismiss, the professional judgment rule cannot be invoked to determine whether defendant was negligent in failing to include a termination provision, because the state of the record does not allow a determination as a matter of law that [*2]defendant deliberately excluded that provision in favor of an equally protective alternative provision (see e.g. Rosner v Paley, 65 NY2d 736, 738 [1985]; Zarin v Reid & Priest, 184 AD2d 385, 386-387 [1992]). Nor can we conclude that it is or is not overly speculative to surmise that a carrier would have agreed to a termination clause in its lease equivalent to that found in plaintiff's agreement with the airport. "

The  case of  Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals. The first is privilege and at issue communications and the second principal is relation-back and the statute of limitations.

The statute of limitations in legal malpractice is three years, pursuant to CPLR 214(6) An action may be commenced against a newly to-be added defendant if that newly related defendant is so closely related to prior defendants that there is no due process violation.

"Plaintiff now seeks to avoid the expiration of the statute of limitations by asserting that his belated adding of Greenberg as a defendant "relates back" to the commencement of this action, before the statute of limitations had run. The test for determining whether a claim asserted against a new party relates back to the date upon which the claim was interposed against the original named defendants is set forth in the case of Buran v. Coupal (87 NY2d 173, 178 [1995]). This test requires that the following three conditions be met:

(1) both claims arise out of same conduct, transaction or occurrence, (2) the party to be joined is united in interest with the original named defendant (s) and, by reason of that relationship, can be charged with notice of the commencement of the action so that the party to be joined will not be prejudiced in maintaining his or her defense due to the delay and (3) the party to be joined knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against him or her as well

(Matter of 27th St. Block Assn. v. Dormitory Auth. of State of N.Y., 302 AD2d 155, 163-164 [1st Dept 2002]; Buran v. Coupal, 87 NY2d at 181). "The burden is on the plaintiff to establish the applicability of the doctrine once a defendant has demonstrated that the statute of limitations has expired" (Nani v. Gould, 39 AD3d 508, 509 [2d Dept 2007]).

Here, plaintiff has met its burden to establish the applicability of the relation-back doctrine as to the first two prongs of the three-prong relation-back test. The asserted claims against Greenberg as Cohen's employer at the time of the alleged malpractice accrued, arise out of the same conduct, transaction or occurrence, and the two parties are united in interest. It should be noted that Greenberg has not challenged plaintiff's position that the first two prongs of the test have been established.

However, plaintiff has failed to establish the third element of the relation-back test, as he has not demonstrated that, but for an excusable mistake as to Greenberg's identity, the action would have been brought against Greenberg as well. "When a plaintiff intentionally decides not to assert a claim against a party known to be potentially liable, there has been no mistake . . . the plaintiff should not be given a second opportunity to assert that claim after the limitations period has expired" (Buran v. Coupal, 87 NY2d at 181)."

 

Emery Celli Brinckerhoff & Abady LLP v Rose; 2010 NY Slip Op 33288(U); November 23, 2010
Sup Ct, NY County; Judge: Joan A. Madden is a decision which outlines the law of charging liens and legal malpractice.  In this particular case, attorneys were representing plaintiff in a series of interrlated but separate litigations, all revolving around the resolution of who owns a family business, and who has to pay whom to get control of that business. 

"At issue on this petition is whether ECBA is entitled to a charging lien based on a
settlement which increased Rose’s ownership in Broadside and resulted in Rose receiving certain
items of personal property. The settlement resolved, inter alia, three actions related to disputes
among the shareholders of Broadside regarding their ownership rights in Broadside and
Broadside’s management, that arose after the death of Rose’s father, Stanley Rose, in 1994"

"Judiciary Law  475 provides that “[flrom the commencement of an action ... the attorney
who appears in an action has a lien upon his [or her] client’s cause of action, claim or
counterclaim, which attaches to a verdict, report, determination, decision, judgment or final order
in the client’s favor and the proceeds thereof in whatever hands they may come.” It further
provides that “the lien cannot be affected by any settlement between the parties before or after
judgment, final order or determination.”

“A charging lien is a security interest in a favorable result of litigation ...giving the
attorney equitable ownership interest in the client’s cause of action and ensuring the attorney can
collect a fee from the fund he has created for that purpose on behalf of the client.” Chadbourne &
e. LLP v. AB Recur Finmz, 18 AD3d 222,223 (1” Dept 2005)(citations omitted).

Furthermore, although charging lien extends to settlement proceeds. ..it is only enforceable
against the fund created by that action.” Ig, (citation omitted). Thus, “where the attorney’s
services do not create any proceeds but consist solely of defending title or interest already held by
the client, there is no lien on the title or interest.” Theroux v. Theroux, 145 AD2d 625 (2d Dept
1989), citing, Pesmond v. Socha, 38 AD2d 22,24 (3d Dept 1971) lv dend,; 1 N Y2d 687 (1972).
In addition, the charging lien only extends to fees arising out of the attorney’s services in a
specific action or proceeding in which they were incurred and does not include fees due to an
attorney for other matters. See Renbl , 121 AD2d 546 (2d Dept 1986); 7
NYJur2d Attorneys at Law 4 295."

The preliminary question raised is whether the April Settlement created proceeds to
which a charging lien could attach. Even assuming arguendo that Rose did not obtain my
additional stock in Broadside as a result of the April Settlement, he nonetheless attained 100%
ownership in Broadside. Moreover, although the settlement required Broadside and Rose to buy
out the other shareholders, it cannot be said that the settlement did not result in proceeds of
litigation in his favor, particularly as the settlement resolved the issues regarding the conflicting
rights of the shareholders and made him the sole owner of Broadside. See:Tunick v. Shaw,
45 AD3d 145 (1’st Dept 2007), jv dismissed, 10 NY3d 930 (2008)(holding that photographic
images constitute proceeds of litigation to which attorneys’ charging liens could attached even
though images existed prior to litigation where attorneys’ efforts culminated in settlement
resolving conflicting rights to possession and commercial exploitation of the images); Con~are
The roux v. The roux, 145 AD2d 625 (holding that attorney’s services did not create any proceed
on which charging lien could attach where equitable distribution settlement merely permitted
plaintiff to maintain a one-half interest in the condominium that she held as a tenant by the
entirety).
That being said, however, it cannot be established on this record the extent to which the
unpaid legal fees at issue in this proceeding arose out of EC BA’s services in connection with the
litigation that was settled.

The law and its rules changes as a matter of geography.  A few miles to the south, rules are completely different.  As an example, in NY a workers' compensation carrier may recovery its payments to plaintiff after plaintiff successfullly sues a third-party.  As an aside, there are any number of legal malpractice cases in which the attorney failed to obtain the consent of the WC carrier to a 3d party settlement and cost the client dearly.  However, in NY the carrier may not recover from a Legal Malpractice recovery due to the negligent handling of a 3d party action.  The same is not true in NJ, as we see in: Cambridge Integrated Servs. Group, Inc. v Faber
2010 NY Slip Op 33286(U) ;November 22, 2010;Sup Ct, NY County;Docket Number: 104108/2009
Judge: Marcy S. Friedman. 

"The court now holds that under New Jersey Law, “a workers’ compensation lien pursuant
to N.J.S.A. 34:15-40 attaches to the proceeds of a legal malpractice action brought to recover
damages froin an attorney who failed to institute an action against a third-party tortfcasor.”
(Frazier v N,J. Mfrs. Ins. Co., 142 NJ 590, 607 Ir\rJ 19951,) New York law is to the contrary, and
holds that a workers’ compensation lien applies “only against recoveries from the third-party
[* 2]
4
tortfeasors who are responsible for the claimant’s injuries.” (Shutter v Phillips Displav
Components Co., 90 NY2d 703, 708 [1997].) However, under settled law, “[tlhe rights of an
employer to be reimbursed for workers’ compensation benefits paid to an employee are governed
by the law of the State in which the benefits were paid.” (Compare Carinucci v PepsicQ. Inc.,
236 AD2d 499 [2d Dept 19971. with New Jersey Mfrs. Ins. Co. v St e cke~2,6 4 AD2d 3 14 [lSt
Dept 19991 [mistaken payments]. See also Matter of O’Cnnnor’s Estate, 21 AD2d 333 [2d Dept
19641.) The court is unpersuaded that enforcement of New Jersey Law would violate public
policy under the circumstances of this case in which a New Jersey resident was paid workers’
compensation benefits in New Jersey."

Judiciary Law 487 may be the oldest statute in American (and in Anglo-American) jurisprudence.  it dates from the first Statute of Westminster, adopted in England in 1275.  Even almost 800 years later refinements continue to be made.

in Barrows v Alexander 2010 NY Slip Op 08506 ; Decided on November 19, 2010 ; Appellate Division, Fourth Department  we see plaintiff attempting to apply Judiciary Law 487 against at attorney, but not one who was working as an attorney at the time.  However, in this case they wish to sue the defendant for acts in the legal malpractice case rather than for acts which led up to the legal malpractice case. This is denied by the Court.
 

"We conclude that the court properly denied the motion inasmuch as the proposed amendment is patently lacking in merit (see generally Anderson v Nottingham Vil. Homeowner's Assn., Inc., 37 AD3d 1195, 1198, rearg granted 41 AD3d 1324). Section 487 applies only "to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney" (Oakes v Muka, 56 AD3d 1057, 1058), and here defendant was not acting in his capacity as an attorney in the context of this legal malpractice action (see Gelmin v Quicke, 224 AD2d 481, 482-483). Plaintiffs' reliance on Kurman v Schnapp (73 AD3d 435) is misplaced because the record in that case establishes that the defendant was acting in his capacity as an attorney when he engaged in the alleged [*2]deceitful conduct.

Finally, the contention of plaintiffs that the court erred in denying their motion for summary judgment is not properly before us because plaintiffs failed to take an appeal from the order denying that motion. "

We will be the first to say that we simply do not understand this Second Department decision.  Kennedy v H. Bruce Fischer, Esq., P.C. ;2010 NY Slip Op 08709 ;Decided on November 23, 2010
Appellate Division, Second Department has the following two ideas that we cannot put together and harmonize:  Plaintiff was able to obtain a $ 1.4 million inquest verdict against a personal injury defendant, but when that felll apart, could not prove that it had a meritorious cause of action and that "but for" the attorney's mistake would have won the case.
 

" 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 v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Kuzmin v Nevsky, 74 AD3d at 898; Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453; Wray v Mallilo & Grossman, 54 AD3d 328, 329; Carrasco v Pena & Kahn, 48 AD3d 395, 396).

Here, even as amplified by the plaintiff's affidavit, and according every possible inference favorable to the plaintiff, the complaint failed to allege any facts tending to show that, but for Fischer's alleged negligence in failing to serve process upon the personal injury defendant in the personal injury action, the plaintiff would have prevailed in that action insofar as asserted against the personal injury defendant (see Kuzmin v Nevsky, 74 AD3d at 898; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; Rau v Borenkoff, 262 AD2d 388, 389; Weiner v Hershman & Leicher, 248 AD2d 193). The plaintiff's remaining contentions regarding dismissal pursuant to CPLR 3211(a)(7) are without merit. Accordingly, the Supreme Court properly granted that branch of Fischer's motion which was to dismiss the complaint pursuant to CPLR [*3]3211(a)(7). "

"It might seem unjust, or even perverse, for a pro se plaintiff to lose just because he happened to sue in his home state, instead of where he believes the injury occurred, and where an attorney probably would have recommended he sue. But the Court's job is to apply applicable statutes fairly and impartially. And here, New York has chosen to favor legal "clarity" over flexible limitations rules. See Insurance Co. of North America, 91 N.Y.2d at 186. [*8] It is not the Court's job to quibble with that policy decision."  This apt description of the borrowing statue comes fromJAGER, against-  MITSCHELE, 06-CV-1938 (JS)(WDW); UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 120572.
 

"This is a legal malpractice action brought by a New York resident against a New Jersey lawyer in connection with a District of New Jersey case on appeal to the Third Circuit, which sits in Pennsylvania. Mr. Jager contends that New Jersey's limitations period controls. Mr. Ryak argues that, pursuant to New York's "borrowing" statute, N.Y. C.P.L.R. § 202, New York's statute of limitations governs. Alternatively, Mr. Ryak contends that Pennsylvania's limitations period appliess.

The Court finds that New York's limitations period controls. New York's borrowing statute provides that:
An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

N.Y. C.P.L.R. § 202

"[T]he primary purpose of CPLR 202 is to prevent forum shopping by a nonresident seeking to take advantage of a more favorable Statute of Limitations in New York." [*6] Insurance Co. of North America v. ABB Power Generation, Inc., 91 N.Y.2d 180, 186, 690 N.E.2d 1249, 1252, 668 N.Y.S.2d 143, 146 (N.Y. 1997). But its secondary, "equally important" purpose is "to add clarity to the law and to provide the certainty of uniform application to litigants." Id. In this regard, § 202 does not just apply to non-residents, but also to residents whose cause of action "accrue[d] without the state," and applies New York's limitations period to such claims, regardless of whether the other state's limitations period is shorter or longer. See, e.g., Alex v. Grande, 29 A.D.2d 616, 616, 285 N.Y.S.2d 909, 911 (3d Dep't 1967); Rossi v. Ed Peterson Cutting Equipment Corp., 131 Misc. 2d 31, 498 N.Y.S.2d 283, 285-86 (N.Y. Sup. Ct., N.Y. County 1986); 75 N.Y. Jur. 2D Limitations and Laches § 113; David D. Siegel, N.Y. Prac. § 57 (4th ed.). Federal courts sitting in diversity must apply § 202, even if it results in a New York resident being subject to a shorter limitations period. See Kilmer v. Flocar, Inc., 212 F.R.D. 66, 70 (N.D.N.Y. 2002) (New York's three year limitations period, not Florida's four year, governed personal injury case arising out of Florida car accident); see also Silva v. Toll Brother's Inc., 97-CV-741, 1998 U.S. Dist. LEXIS 19894, 1998 WL 898307, at *1-2 (S.D.N.Y. 1998) [*7] ; Loral Corp. v. Goodyear Tire and Rubber Co., 93-CV-7013, 1996 U.S. Dist. LEXIS 1018, 1996 WL 38830, at *7 (S.D.N.Y. 1996). And courts must apply § 202 without conducting a typical choice-of-law analysis. See Aboushanab v. Janay, 06-CV-13472, 2007 U.S. Dist. LEXIS 71278, 2007 WL 2789511, at *3 (S.D.N.Y. 2007)."
 

Plaintiff is arrested and retains attorneys to represent him.  Plaintiff bails himself out and uses the bail receipt to pay the attorneys.  At issue here is whether he endorsed the bail receipt over to the attorneys to cover a minimum fee, and whether pleading guilty is a "'disposition" or whether pleading guilty and being sentenced is necessary.  In any event, there can be no legal malpractice case since plaintiff cannot show "actual innocence".

 So, in Shields v Carbone ; 2010 NY Slip Op 08661 ;Decided on November 24, 2010 ; Appellate Division, Third Department we see:
 

"Supreme Court erred in ordering plaintiff to release bail proceeds directly to O & A. By statute, when bail is exonerated, it "shall . . . be refunded to the person who originally deposited such money," less statutory fees (General Municipal Law § 99-m [1]; see Balter v County of Wyoming, 70 AD2d 1051 [1979]). While a person who posts bail can assign the right to receive the bail proceeds, O & A did not provide proof of a perfected transaction between Carbone and O & A through which Carbone intended to vest in O & A a present right to his bail proceeds (cf. Zeman v Falconer Elecs., Inc., 55 AD3d 1240, 1241 [2008]; Mele v Travers, 293 AD2d 950, 951 [2002]). The retainer agreement provides that Carbone "agrees to sign the cash bail over to" O & A and Carbone did give O & A the original bail receipt, but there is no written assignment and Carbone did not endorse the bail receipt over to O & A. Without proof of an assignment, the court should have directed plaintiff to release the bail proceeds to Carbone, the original depositor of those funds (compare Herman v State of New York, 126 Misc 2d 1019, 1020-1022 [1984]).

Supreme Court did not need to address Carbone's cross motion to compel disclosure. O & A cross-moved for summary judgment only on its breach of contract cross claim against Carbone, and the disclosure at issue dealt with its quantum meruit claim. Disclosure was stayed pending a determination of the dispositive motions (see CPLR 3214 [b]), and the demanded disclosure was irrelevant to those motions. Thus, Carbone was not entitled to have its motion to [*4]compel determined prior to the court issuing the order that is on appeal (see CPLR 3212 [f]).

Supreme Court should not have granted O & A's cross motion for summary judgment against Carbone on its breach of contract cause of action. We disagree with Carbone's arguments that the retainer agreement is invalid or unenforceable. The agreement does not contain an illegal contingency fee or nonrefundable retainer, but instead includes a minimum fee, which is allowed by law (see Matter of Cooperman, 83 NY2d 465, 476 [1994]; Rules of Professional Conduct rule 1.5 [d] [1], [4] [22 NYCRR 1200.0]). Pursuant to the agreement, that fee is "to be paid at the time of the disposition of the case" if the firm obtained a "disposition or resolution." The agreement also contains information concerning hourly rates, which would apply if the firm was not involved in obtaining a disposition or resolution (such as if Carbone discharged O & A prior to a disposition). Here, O & A represented Carbone through the entry of a guilty plea to one count of the indictment in exchange for a negotiated sentence. Carbone discharged O & A after the plea, however, and retained new counsel prior to sentencing. The new counsel moved to withdraw the plea, then represented Carbone at sentencing. The phrase "disposition or resolution" is ambiguous, as it could refer to the guilty plea, which constitutes a conviction (see CPL 1.20 [13]), or the sentencing, which results in a judgment of conviction (see CPL 1.20 [15]). This ambiguity creates a question of fact concerning whether O & A obtained a "disposition or resolution" of Carbone's criminal case so as to entitle it to the minimum fee, or whether Carbone discharged the firm prior to a disposition or resolution such that O & A can only recover a fee on an hourly basis. Thus, further proceedings are necessary on O & A's breach of contract cause of action. "

Legal malpractice litigation is unique.  While the simple fact is that this branch of the law is written by attorneys, is utilized to litigate against attorneys, is judged upon by attorneys, the more complex story is that there are a number of unique rules.  One is that a criminal defendant may not sue his attorney absent "actual innocence."  There are no lawsuits for bad advice which leads to a conviction.

  Sgambelluri v Ironman ;2010 NY Slip Op 08555 ;Decided on November 16, 2010 ;Appellate Division, Second Department sums this rule up nicely: "To succeed on a "cause of action for legal malpractice arising from negligent representation in a criminal proceeding, [the] plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense" (Carmel v Lunney, 70 NY2d 169, 173; see Britt v Legal Aid Socy., 95 NY2d 443, 448; Daly v Peace, 54 AD3d 801, 802). "A plea of guilty bars recovery for legal malpractice, [r]egardless of the plaintiff's subjective reasons for pleading guilty'" (Casement v O'Neill, 28 AD3d 508, [*2]509, quoting Kaplan v Sachs, 224 AD2d 666, 667). "

The more things change, the more they stay the same, say the French.  In the Estates and Trust - legal malpractice world, this saying is illustrated by Leff v Fulbright & Jaworski, L.L.P. ;2010 NY Slip Op 08443 ;Decided on November 18, 2010 ;Appellate Division, First Department.  There has been a revolution in this world, yet the landscape for a huge portion of the malpractice questions remains unchanged.  
 

New York is a privity state, in the minority of all states, and is a strict privity state at that.  Absent an attorney-client relationship, absent reliance on opinion letters or their equivalent, and absent fraud, one may sue an attorney only when there is privity.

"In New York it is well established that absent fraud, collusion, malicious acts or similar circumstances, the draftsperson of a will or codicil is not liable to the beneficiaries or other third parties not in privity who might be harmed by his or her professional negligence (see Mali v De Forest & Duer, 160 AD2d 297 [1990], lv denied 76 NY2d 710 [1990]). Defendants demonstrated that while they represented plaintiff in her estate planning and other matters, she was not in privity with them with regard to her late husband's estate planning. The absence of such privity remains a bar against her estate malpractice claims (Estate of Schneider v Finmann, 15 NY3d 306 [2010]). "

"Plaintiff cannot bring her claim pursuant to the "approaching privity" standard outlined in Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood (80 NY2d 377, 383 [1992]). There is no evidence that defendants knew and intended that their advice to plaintiff's late husband was aimed at affecting plaintiff's conduct or was made to induce her to act. Nor is there evidence that plaintiff relied upon defendants' advice to her detriment. Significantly, the standard is not satisfied when the third party was only "incidentally or collaterally" affected by [*2]the advice (see id.)".

The rule of privity in legal malpractice is very strong.  It exists as a "bright line" that admits of few exceptions. One recent anomaly is that of decedents, estates and standing.  In an article from today's NYLJ. Raymond Radigan and Jennifer F. Hillman,  write the following:

"In a significant decision this summer, Schneider v. Finmann, 15 NY3d 306 (2010), the Court of Appeals loosened the privity requirements in legal malpractice actions. Specifically, in Schneider, the Court of Appeals held for the first time that a personal representative has the same ability to sue the attorney who performed estate planning services as the decedent. The Court's rationale was that the personal representative "stands in the shoes" of the decedent and thus "has the capacity to maintain the malpractice action on the estate's behalf." Id. at 309."

In Schnieder we see:  "Strict privity, as applied in the context of estate planning malpractice actions, is a minority rule in the United States[1]. In New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, "absent fraud, collusion, malicious acts or other special circumstances" (Spivey v Pulley, 138 AD2d 563, 564 [2d Dept 1988]). Some Appellate Division decisions, on which the Appellate Division here relied, have applied strict privity to estate planning malpractice lawsuits commenced by the estate's personal representative and beneficiaries alike (Deeb v Johnson, 170 AD2d 865 [3d Dept 1991]; Spivey, 138 AD2d at 564; Viscardi v Lerner, 125 AD2d 662, 663-664 [2d Dept 1986]; Rossi v Boehner, 116 AD2d 636 [2d Dept 1986]). This rule effectively protects attorneys from legal malpractice suits by indeterminate classes of plaintiffs whose interests may be at odds with the interests of the client-decedent. However, it also leaves the estate with no recourse against an attorney who planned the estate negligently."

"We now hold that privity, or a relationship sufficiently approaching privity, exists between the personal representative of an estate and the estate planning attorney. We agree with the Texas Supreme Court that the estate essentially "`stands in the shoes' of a decedent" and, therefore, "has the capacity to maintain the malpractice claim on the estate's behalf" (Belt v Oppenheimer, Blend, Harrison & Tate, Inc., 192 SW3d 780, 787 [Tex 2006]). The personal representative of an estate should not be prevented from raising a negligent estate planning claim against the attorney who caused harm to the estate. The attorney estate planner surely knows that minimizing the tax burden of the estate is one of the central tasks entrusted to the professional. Moreover, such a result comports with EPTL § 11-3.2(b)[2], which generally permits the personal representative of a decedent to maintain an action for "injury to person or property" after that person's death."

Bumpus v New York City Tr. Auth. ;2009 NY Slip Op 05737 [66 AD3d 26] ;July 7, 2009 ;Dillon, J., J. discusses what to do when the defendant can't be identified, or served within a 120 day period.  On Wednesday we discussed the first two options: making a motion after the 120 days have expired pursuant to CPLR 306-b.  Here are other alternatives set forth in Bumpus.

"The practicing bar need not rely exclusively on the ameliorative provisions of CPLR 306-b for coping with the difficulties posed by pursuing actions against unknown parties. There are, in fact, at least four procedural mechanisms that may be utilized which, if applicable and successful, would render unnecessary a party's reliance upon "good cause" or the "interest of justice"{**66 AD3d at 33} for additional time to serve process upon "Jane Doe" defendants who cannot be readily identified.

One such method is pre-action disclosure as permitted by CPLR 3102 (c). The statute permits a prospective plaintiff to seek, by court order, disclosure that will aid in bringing the action (see CPLR 3102 [c]). It has been recommended that a request for pre-action disclosure be sought by means of a special proceeding pursuant to CPLR article 4 (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3102:6, citing Robinson v Government of Malaysia, 174 Misc 2d 560 [1997]). While pre-action disclosure is often thought of as a device to enable the plaintiff to frame a complaint (see generally Matter of Wien & Malkin v Wichman, 255 AD2d 244 [1998]; Matter of Perez v New York City Health & Hosps. Corp., 84 AD2d 789 [1981]; Matter of Rosenberg v Brooklyn Union Gas Co., 80 AD2d 834 [1981]; Matter of Urban v Hooker Chems. & Plastics Corp., 75 AD2d 720 [1980]; Matter of Roland [Deak], 10 AD2d 263, 265 [1960]) or to preserve evidence for a forthcoming lawsuit (see generally Matter of Thomas v New York City Tr. Police Dept., 91 AD2d 898 [1983]; Gearing v Kelly, 15 AD2d 477 [1961]; Matter of O'Grady v City of New York, 164 Misc 2d 171, 173 [1995]; Matter of Spraggins v Current Cab Corp., 127 Misc 2d 774, 775 [1985]), it has also been recognized as an appropriate device for ascertaining the identities of prospective defendants (see Matter of Alexander v Spanierman Gallery, LLC, 33 AD3d 411 [2006];"
 

"A second mechanism, available when a governmental entity may know the identity of the unknown party, is the Freedom of Information Law (Public Officers Law art 8 [hereinafter FOIL]). In a case such as this involving a public employee, Public Officers Law § 89 would require the disclosure of the employee's name (see Matter of Faulkner v Del Giacco, 139 Misc 2d 790,{**66 AD3d at 34} 794 [1988]" 

"Third, if pre-action discovery or FOIL requests are not viable options, plaintiffs intending to pursue a "Jane Doe" defendant may commence their actions against any known codefendants, who may possess information identifying the unknown party, well in advance of the statute of limitations (accord Misa v Hossain, 42 AD3d 484, 486 [2007]). Doing so affords two distinct procedural options. If the discovery process would not lead to an identification of the unknown target in sufficient time for service of process upon that party under the limited 120-day deadline of CPLR 306-b, the subsequent disclosure of identifying information will still permit, within the wider statute of limitations, either an amended complaint by stipulation or by leave of court naming the [*4]additional party (see CPLR 3025 [b]), or alternatively, the commencement of a timely separate action against the additional party with a view to its later consolidation with the original action"

"Fourth, when an originally-named defendant and an unknown "Jane Doe" party are united in interest, i.e. employer and employee, the later-identified party may, in some instances, be added to the suit after the statute of limitations has expired{**66 AD3d at 35} pursuant to the "relation-back" doctrine of CPLR 203 (f), based upon postlimitations disclosure of the unknown party's identity (see Reznick v MTA/Long Is. Bus, 7 AD3d 773, 774 [2004]; Gottlieb v County of Nassau, 92 AD2d 858 [1983]). "

One frequently sees an argument made in motions to dismiss pursuant to CPLR 3211 (multiple sub-divisions) in which evidentiary material is submitted by defendant, and it is argued that damages cannot be ascertained or proven.

In Simpson v Alter ;2010 NY Slip Op 08089 ;Decided on November 9, 2010 ;Appellate Division, Second Department  the Court answers this question:
 

"The Supreme Court also properly denied that branch of the appellants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7). On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87; Sokol v Leader, 74 AD3d 1180). "Where evidentiary material is submitted on a CPLR 3211(a)(7) motion, it may be considered by the court, but unless the defendant demonstrates, without significant dispute, that a material fact alleged by the complaint is not a fact at all, the motion will not be granted" (Quesada v Global Land, Inc., 35 AD3d 575, 576; see Caravousanos v Kings County Hosp., 74 AD3d 716). Contrary to the appellants' contention, the documentary evidence which indicated that certain information about the plaintiff's residency status may have been publicly available does not completely disprove her factual allegation that Alter divulged personal information which she had imparted to him when he represented her in 2003. Furthermore, the complaint sufficiently pleads allegations from which damages attributable to the appellants' alleged legal malpractice might be reasonably inferred (see Kempf v Magida, 37 AD3d 763, 764; see also Rock City Sound, Inc. v Bashian & Farber, LLP, 74 AD3d 1168)."
 

Over the years, the rules of service of process have changed.  Once, long ago, a case was commenced when defendants were served with a summons and complaint and an index number was purchased only when necessary.  Later, in 1992 a commencement by index number rule started, and questions of service then arose.  Under CPLR 306-b a requirement that process be served within a 120 day period was enacted.  Ever since, problems of service and dismissals have abounded.

Bumpus v New York City Tr. Auth. ;2009 NY Slip Op 05737 [66 AD3d 26] ;July 7, 2009 ;Dillon, J., J. is a well written encyclopedia of how to serve a summons when defendant is not easy to find, or, in this case, easy to identify,  Counsel has four choices to identify a "Jane Doe" and serve that party within the statutory period. "The 120-day service provision of CPLR 306-b can be extended by a court, upon motion, "upon good cause shown or in the interest of justice" (CPLR 306-b). "Good cause" and "interest of justice" are two separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney,{**66 AD3d at 32} Ponzini & Spencer, 97 NY2d at 105-106)" 
 

"If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259 AD2d at 17). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their [*3]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142, 1144 [2005]), "

What happens when Judges hire attorneys to litigate election law matters?  The same thing that happens when ordinary people litigate.  Some litigations end in legal malpractice cases.  That is true of Simpson v Alter ; 2010 NY Slip Op 08089 ; Decided on November 9, 2010 ;Appellate Division, Second Department.   

In this follow up to the election battle between the Hon. ShawnDya L. Simpson and the Hon. Diana Johnson Judge Simpson sues her election law attorney Bernard Simpson after he had represented Simpson and the Johnson.  Did he impart confidential client information from one to the other?

More in this case will follow, ad the Court affirmed the lower court's denial of a dismissal motion based upon collateral estoppel.

"The Supreme Court properly denied that branch of the appellants' motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(5) based upon the doctrine of collateral estoppel. The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues raised in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling (see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199; Buechel v Bain, 97 NY2d 295, 303-304, cert denied sub nom. Buechel v Bain, 535 US 1096; Mahler v Campagna, 60 AD3d 1009, 1011). Preclusive effect may only be given to issues that were "actually litigated, squarely addressed and specifically decided" (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825; see Motors Ins. Corp. v Mautone, 41 AD3d 800, 801). Here, the appellants failed to establish that the issue of whether the appellant Bernard M. Alter (hereinafter Alter) breached his duty to the plaintiff by divulging confidential information which she allegedly imparted to him when he was her attorney in 2003 was actually litigated, squarely addressed, and specifically decided in a prior 2007 proceeding pursuant to Election Law article 16, in which Alter represented candidate Diana Johnson in her challenge to the plaintiff's residency. "

This case cuts to the center of a legal malpractice case, nicely illustrating the difference between legal malpractice and all other disciplines.  Greene v Sager ; 2010 NY Slip Op 08068 ; Decided on November 9, 2010 ;Appellate Division, Second Department  is a twin story.  First the mistake by the attorney:  "The defendants were retained by the plaintiff to represent her and to recover damages for injuries she allegedly sustained when she stepped off a sidewalk and fell into a depressed area in a street in Queens, where the plaintiff alleges that she observed Consolidated Edison employees working on the day of her accident. The defendants failed to commence an action within the statute of limitations period, and the plaintiff commenced this action against them, alleging legal malpractice. "

Next, the additional step in proving legal malpractice and the aggressive defense offered by a competent legal malpractice firm.  Defense firms made motions for summary judgment on the slightest whim, and are often awarded for their audacity.  Here they were not.

"To succeed on their motion for summary judgment, the defendants were required to demonstrate that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action (see Conklin v Owen, 72 AD3d 1006, 1007; Shopsin v Siben & Siben, 268 AD2d 578). The defendants, as movants, failed to meet this burden (see Eisenberger v Septimus, 44 AD3d 994, 995; Shopsin v Siben & Siben, 268 AD2d at 578). The plaintiff similarly failed to meet her burden of establishing entitlement to judgment as a matter of law as to the defendants' liability for malpractice since there were triable issues of fact whether she would have prevailed in the underlying action to recover damages for her injuries (see Theresa Striano Revocable Trust v Blancato, 71 AD3d at 1123; Eisenberger v Septimus, 44 AD3d at 995; Avery v Sirlin, 26 AD3d 451, 452). Accordingly, the Supreme Court properly denied the defendants' motion and the plaintiff's cross motion for summary judgment. "
 

Attorneys care about their clients.  Attorneys work hard and have reasons to perform good work.  Attorneys make mistakes, and have high case loads.  Attorneys have their own interests at heart. 

These are contradictory thoughts that cannot be reconciled.  Here, in the story of Richard F. Gluszak we see some of the contradictory story-lines.  "The Grievance Committee received a complaint from the Honorable Ira Warshawsky of the Supreme Court, Nassau County involving a default judgment taken against the respondent based upon his failure to answer a summons and complaint in the matter entitled Quarta v Gluszak, commenced in the Supreme Court, Nassau County, under Index No. 4427/08. The action alleged that the respondent diverted money from a client via a business credit link and that he failed to produce certain documents as mandated by a order of the Supreme Court, Nassau County, dated June 11, 2008. The complaint was based on a order of the Supreme Court, Nassau County, dated April 9, 2009, which found that the plaintiffs were entitled to judgment on their causes of action for professional malpractice and diversion of funds."

"The Grievance Committee received a complaint from Richard Ferris, dated May 27, 2009, alleging that the respondent claimed to be unable to return proceeds from a house sale he had deposited into his IOLA account. By letter dated June 19, 2009, sent to the address the respondent had listed with OCA, the Grievance Committee requested a copy of the respondent's answer within 10 days and advised that an unexcused failure to reply constituted professional misconduct independent of the merits."

"The Grievance Committee received a complaint from Patricia Hodelin, dated December 18, 2009, alleging that the respondent misappropriated funds held in escrow for her and her late husband, and that he misappropriated funds entrusted to him by the Estate of Vernon Hodelin. "

"Although personally served with both the petition and the order to show cause on July 29, 2010, the respondent has failed to interpose any reply."

Practitioners are supposed to know not only how to gain a client, but how to settle a case without causing collateral damage.  One such trap, though well known, open and obvious, is the settlement of tort actions when plaintiff has been awarded Workers' Compensation benefits.  In short, before settling a tort action where plaintiff has been awarded WC benefits, the permission of the WC compensation carrier must be obtained.  If it is not, then plaintiff will lose future WC benefits to an amount equal to the tort settlement. 

In Gowins v M. Weiss & Assoc., P.C.; 2010 NY Slip Op 33101(U); October 26, 2010;Supreme Court, New York County; Docket Number: 110928/08;;Judge: Judith J. Gische gives the controlling Appellate Division authority and permits amendment of the complaint to add Judiciary Law 487.

The controlling appellate authority on the facts presented is the case of Northrop
v. Thorsen, (46 AD3d 780 [2nd Dept. 20071). In Northrop, the attorney being sued for
malpractice, like the attorneys here, resolved an underlying tort action without first
obtaining the required approval of either the worker's compensation carrier or the Court.
Unlike the case at bar, no effort was made to have the court approve the settlement
nunc pro tunc. The court held in Northrop, supra, that the lawyer's failure to comply
with Worker's Compensation Law §29(5) constituted professional negligence, without
the need for an expert witness. The court held further, however, that the duty to seek a
nunc pro tunc approval of the settlement rested with the attorney and the failure to do
so was “part of defendant’s malpractice.  This Court holds that plaintiff in this case is entitled to summary judgment on the issue of liability "

Plaintiff seeks to amend the complaint to assert a third cause of action based
upon violations of Judiciary Law 5 487. The gravamen of the complaint is that
defendants deliberately delayed and failed to provide him information about this and/or
the Worker’s Comp. Action for their own gain and/or advantageAt bar the a civil claim under Judiciary Law  487 may stand even when there is also a claim for legal malpractice. Moormann v. Perini & Hoerger, 65 AD3d 1106 (2nd Dept. 2009). Here, the proposed complaint states a cause of action. Defendants’ factual disputes about the viability of the claim can be fairly resolved at trial.".