New York Attorney Malpractice Blog

Plaintiff seems to be ascendant at this point in the case, but proof of a 19 year old trip and fall may be difficult in the extreme.  A trial will ensue, after plaintiff's rare successful motion for partial summary judgment was granted in Cox v. McKernan. 

In today's New York Law Journal Christine Simmons reports that  "A retired teacher who claimed a Staten Island law firm "did virtually nothing to prosecute" her personal injury case for 14 years has convinced an Eastern District magistrate judge that her ex-attorneys were negligent.

McKernan & Gatins represented Catherine Cox in a slip-and-fall action, filing suit against the City of New York in 1994. The case was dismissed in 2008 when a judge found the city wasn't the proper defendant. By then it was too late to bring suit against the right party, and Cox sued the firm for legal malpractice.

"The record reflects that defendants were negligent," said Magistrate Judge Joan Azrack (See Profile) about the now dissolved firm and its partners. "Making matters worse, the only explanation any of the defendants provided plaintiff for suing the wrong defendant was a false one."

While Azrack granted summary judgment to Cox on some elements of her legal malpractice claim, including negligence, she denied it on another required factor, namely whether the firm's negligence proximately caused Cox's loss."
 

"In Cox v. McKernan & Gatins, 11-cv-5980, Azrack said that while the "court sympathizes that [Cox] received such poor legal representation," genuine issues remain on whether Cox would have prevailed in her underlying slip-and-fall case if the proper defendant was sued.

Cox filed the underlying suit after she fell on a gym floor in 1993 at Port Richmond High School during a charity basketball game. Cox, then a physical education teacher at the school, broke her arm.

She initially consulted with attorney Paul Scano, who filed a notice of claim against the city and its Board of Education. But she ultimately signed a written retainer agreement with McKernan & Gatins, composed of Kevin McKernan and Patrick Gatins, to represent her.

The firm filed suit against the city in 1994 but not against the board.

During the first year after retaining the firm, Cox met several times with McKernan, who assured her "everything was fine," according to court papers.

But the firm didn't file a request for judicial intervention asking the state court for a preliminary conference until March 2008. " "McKernan admitted in court papers he erred in informing Cox that the notice of claim was against only the city."That was not an attempt to shift blame," he said, noting he had not read the file in some time and had misread when drafting the letter.

Gatins, who is disabled and no longer practicing, said he wasn't involved in Cox's case. Noting he had not yet read the decision, he declined to comment on it. Gatins is representing himself in the litigation."Gatins, who is disabled and no longer practicing, said he wasn't involved in Cox's case. Noting he had not yet read the decision, he declined to comment on it. Gatins is representing himself in the litigation

 

We wince to see cases lost on procedural grounds, much less legal malpractice cases.  Here, in Northern Source, LLC v Kousouros   2013 NY Slip Op 03607   Decided on May 21, 2013   Appellate Division, First Department it seems that plaintiff failed to file a note of issue after a written demand, failed to respond to a motion to dismiss after the note of issue date passed, and then waited too long to move to vacate a judgment.  Ouch.
 

"The motion court providently exercised its discretion in finding, pursuant to CPLR 5015(a)(1), that plaintiff did not provide a reasonable excuse for its failure to timely prosecute this action, and did not demonstrate that it had a meritorious cause of action (see e.g. Carroll v Nostra Realty Corp., 54 AD3d 623 [1st Dept 2008], lv dismissed 12 NY3d 792 [2009]; see also Johnson v Minskoff & Sons, 287 AD2d 233, 236 [1st Dept 2001]).

In seeking to establish a reasonable excuse, plaintiff relied on an affirmation from its new counsel, who did not represent plaintiff when it received the 90-day demand, when defendant moved to dismiss, or when the motion court dismissed the matter. Thus, plaintiff's counsel had no personal knowledge of the facts regarding plaintiff's default, and his affirmation did not suffice to establish a reasonable excuse (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553 [2d Dept 2001]).

Plaintiff similarly failed to set forth any valid excuse for its failure to move to vacate the judgment within one year, as required by CPLR 5015(a)(1) (see Rosendale v Aramian, 269 AD2d 209, 210 [1st Dept 2000]). Plaintiff's affirmation from recent counsel contains no personal knowledge of any facts relating to the 16-month delay in moving to vacate.

Furthermore, plaintiff failed to submit sufficient evidence showing that it had a meritorious legal malpractice claim. Again, the affirmation from plaintiff's counsel contains no firsthand knowledge regarding the claim, and while plaintiff also submitted the affidavit of its president, prepared in 2008 in support of plaintiff's unsuccessful motion for summary judgment,
plaintiff failed to submit key exhibits referenced in the affidavit to show that it had a meritorious claim. [*2]"

How far may an attorney go when dealing with a client before the line is crossed and extreme emotional distress may be charged?  It almost never happens, but  In Blumencranz v Botter 2012 NY Slip Op 32089(U) Sup Ct, Nassau County Docket Number: 15489/11 Judge: Joel K. Asarch we see behavior that is "utterly failing in propriety and professionalism, is [not] so outrageous as to exceed all reasonable bounds of decency as a matter of law. Insofar as plaintiff includes alleged professional failures" damages for the intentional infliction of emotional distress are not recoverable in a legal malpractice action Epifano v. Schwartz 279 AD2d 501 , 503 (2d Dept 2001)),

"Plaintiff, Lisa Blumencranz, retained the services of defendant, Allan S. Botter, to represent her in a divorce proceeding. Blumcrantz alleges that her former husband presented her with the names of two attorneys and advised her to choose one of them "if she wished the matter to proceed smoothly . He allegedly warned that if she retained an attorney of her own choosing, the choice would result in greater difficulty" for her. Blumencranz avers that her former husband had "been
in contact" with the attorney she chose, defendant Alan S. Botter, before she retained him. He had reached "an understanding" with Botter that he would be "paid directly by her then-husband" for
representing her.

"She alleges that Botter "belittled and demeaned" her, and mocked her when she begged" for changes to the child custody agreement. She alleges that the parties had joint custody but final decisions were with the husband, and that no set holiday schedule was included. The agreement also allowed the children "to decide when and if' they would speak to her. She alleges that her attorney told her that is how things were and to "deal with it.

Addressing the emotional injure causes of action, the tort of intentional infliction of emotional distress predicates liability upon the basis of "extreme and outrageous conduct which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society (Freihofer v. Hearst Corp. 65 NY2d 135 (1985)). The requirements are "rigorous, and difficult to satisfy" (Howell New York Post Co. 81 NY2d 115, 122 (1993)), as even conduct which may be characterized as "unacceptable and socially repugnant" does not "rise to the level of atrocity" (Shea v. Cornell University, 192 AD2d 857 (3d Dept 1993)). The wrongful conduct must consist of more than "insults" or "indignities" and must be so "shocking and outrageous" as to "exceed all reasonable bounds of decency (Nestlerode v. Federal Ins. Co., 66 AD2d 504 508 (4 Dept 1979), app denied 48 NY2d 604 (1979)). An example of conduct which survived the difficult threshold for atrocious conduct may be found in Bunker Testa, 234 AD2d 1004 (4 Dept 1996) There the complaint alleged inter alia [* 4] yelling and gesturing obscenely at plaintiff , following her home, refusing to leave the premises and significantly, "following her children. .. and telling her that he knew where the children went to school and when they got out of school" (Id). Here, the nature of plaintiff's alleged complaints in the cause of action for the intentional infliction of emotional harm amount to insult emotional distress and inadequate legal representation. The alleged conduct, while utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law. Insofar as plaintiff includes alleged professional failures "( d)amages for the intentional infliction of emotional distress are not recoverable in a legal malpractice action" (Epifano v. Schwartz 279 AD2d 501 , 503 (2d Dept 2001)),
 

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 ."

Courts are ready to consider dismissal of legal malpractice cases, especially when the motion for dismissal is predicated on the "but for" portion of the legal malpractice formula.  Put another way, even on thinly produced evidence, and before there is any discovery, courts are willing and able to determine whether plaintiff could have succeeded in the underlying case, even though the defendant attorney has not been deposed, and has not been required to exchange documents. 

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire   2013 NY Slip Op 03566  decided on May 16, 2013 Appellate Division, First Department is an example. 
"The motion court properly dismissed the legal malpractice claim, as defendant failed to "meet the case within a case' requirement, demonstrating that but for' the attorney's conduct the [plaintiff] client would have prevailed in the underlying matter or would not have sustained any ascertainable damages" (Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).
Longmire failed to show that he would have established a prima facie case of race-based discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; see also McDonnell Douglas Corp. v Green, 411 US 792, 802-804 [1973]).

First, Longmire failed to show that he was terminated, as he himself testified in the underlying suit that he voluntarily left his former employment. In addition, based on his own allegations in the complaint and his affidavit, if he was terminated at all, it was due to his refusal to testify on his employer's behalf in his employer's matrimonial proceedings, and it was not due to Longmire's race. Thus, Longmire would not have prevailed on such a claim had Warshaw pursued it in opposing summary judgment.

Warshaw's decision not to move for reconsideration of the decision dismissing the underlying federal lawsuit was a strategic choice, and does not amount to legal malpractice because "[a]n attorney's selection of one among several reasonable courses of action does not constitute malpractice'" (Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552 [1st Dept 2011], quoting Rosner v Paley, 65 NY2d 736, 738 [1985]). [*2]

The motion court correctly rejected Longmire's submission of an expert affidavit on the issue of whether Warshaw acted negligently (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d "
 

As the economic times turn around, we are still seeing the results of the mortgage bubble.  in Ferreira v Citiwide Real Estate & Mgt. Co.   2013 NY Slip Op 50745(U)   Decided on May 8, 2013
Supreme Court, Queens County   Kitzes, J.  we see a typical issue.  What happens when the system spins, and the owner is put on the street?  Litigation follows. 

Of particular interest is what happens when an attorney negligently or carelessly enters into a stipulation on behalf of a client in "open" court?  Case law says that the client is bound.  however. we are puzzled by what seems to be a complete lack of a remedy here.

" The court finds that plaintiff's proposed complaint adequately alleges a cause of action for legal malpractice based Mr. Solda's alleged failure to review the mortgage foreclosure file, and move to vacate the judgment of default, foreclosure and sale, and the referee's deed on the grounds of lack of personal jurisdiction, rather than entering into the stipulation of settlement which resulted in plaintiff vacating the subject premises. To the extent that Mr. Soldas asserts that he was only retained to represent Mr. Ferreira in the civil court matter, the retainer agreement does not identify the court in which the Deutsche Bank action was pending, does not contain an Index Number for the matter entitled "Deutsche Bank v J Ferreira, et al", and refers to "[a]ll legal matters relative to defense of claims arising out of the above referenced matter and the foreclosed property." The retainer agreement on its face, thus, does not specifically limit Mr. Solda's representation of Mr. Ferreira to the civil court matter.

However, to the extent that Mr. Ferreira alleges he did not authorize Mr. Solda to enter into the stipulation in civil court, this claim cannot form a basis for legal malpractice. It is well settled that a stipulation made by the attorney may bind a client even where it exceeds the attorney's actual authority if the attorney had apparent authority to enter into the stipulation (see Hallock v State of New York, 64 NY2d 224, 231 [1984]).

In view of the foregoing, with respect to the motion by defendant Deutsche Bank and Paul Solda, summary judgment dismissing the complaint is granted as against Deutsche Bank and denied as to Paul J. Solda, Esq.; cancellation of the notice of pendency against 24-27 Curtis Street, East Elmhurst, New York is granted; and an award of counsel fees and costs are denied. "

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 caseFleyshman v Suckle & Schlesinger, PLLC ; 2012 NY Slip Op 00176 ; 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]). "
 

Some years ago the Legislature overruled the Court of Appeals, and passed CPLR 214(6). That statute was interpreted to say that all claims against an attorney (some other professionals) were subject to a 3 year statute, whether the claim was made in negligence or contract.

Here, in Walter v Castrataro 2012 NY Slip Op 02676 Appellate Division, Second Department we see a plaintiff unsuccessfully attempting to get the benefit of a typical 6 year statute for breach of contract.

"On April 16, 2003, the plaintiff signed a retainer agreement, wherein the defendant agreed to represent her in a matrimonial action. By letter dated July 1, 2003, the plaintiff terminated the defendant's representation. On June 11, 2009, the plaintiff commenced this action, alleging in [*2]her complaint that the defendant "negligently failed to represent the Plaintiff and breached her duties" and "[a]s a result of the Defendant's breach of contract the Plaintiff has suffered substantial damages[.]" The defendant moved, inter alia, for summary judgment dismissing the complaint on the ground that the complaint sounded in legal malpractice and, thus, was barred by the applicable three-year statute of limitations (see CPLR 214[6]). In her opposing affidavit, the plaintiff stated that she "may have inadvertently misused language on the Summons and Complaint. However, the object of the said application served upon Defendant asserts breach of contract verbatim and notably, Plaintiff never uses the term Legal malpractice" (emphasis in original). In her affidavit, the plaintiff alleged numerous "breaches" by the defendant in connection with the underlying matrimonial action, including a failure to file an application for pendente lite support, failure to move to vacate a certain forensic report, and failure to "modify" a certain stipulation. The Supreme Court, among other things, granted that branch of the defendant's motion which was for summary judgment dismissing the complaint as time-barred.

The complaint is "nothing more than a rephrasing of the claim of malpractice in the language of breach of contract" (Mitschele v Schultz, 36 AD3d 249, 252). The defendant satisfied her initial burden by demonstrating, prima facie, that the complaint sounded in legal malpractice and that the three-year statute of limitations began to run no later than July 1, 2003 (see Sladowski v Casolaro, 84 AD3d 1056, 1057). In opposition, the plaintiff failed to raise a triable issue of fact, e.g., by submitting proof demonstrating that the statute of limitations was tolled by the continuous representation doctrine, or otherwise (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, the Supreme Court properly concluded that the action, commenced almost six years after the alleged legal malpractice was committed, was barred by CPLR 214(6), and, thus, properly granted that branch of the defendant's motion which was for summary judgment dismissing the complaint as time-barred. "
 

When clients depend upon the expertise of an attorney, and then end up with a bad result, they can successfully plead legal malpractice. Does a client settle the personal injury case or litigate on? Depending on how the attorney advises the client, there may or may not be legal malpractice. Here is an example.

Polanco v Greenstein & Milbauer, LLP 2012 NY Slip Op 04385, Appellate Division, First Department concerns a case in which plaintiff was struck in the neck by a piece of lumber. She alleged that the defendant was negligent in urging her to settle the case without a MRI and telling her that a MRI would not lead to a more favorable result. She settled the case for $ 20,000 only to find out later that she was permanently disabled.
 

"after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant's negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations are sufficient to state a claim for legal malpractice (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 435 [2011]; see generally Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005]). Plaintiff was not required to [*2]show a likelihood of success in the underlying action, but was "required only to plead facts from which it could reasonably be inferred that defendant's negligence caused [her] loss" (Garnett, 82 AD3d at 436). Plaintiff plead such facts. "
 

Reading the background information or the caption of some legal malpractice cases often reveals issues about the case itself.  In Stuart v Robert L. Folks & Assoc., LLP   2013 NY Slip Op 03319
Decided on May 8, 2013   Appellate Division, Second Department , we saw that the defense counsel's name was all alone in the appearance section of the appeal.  Plaintiff appealed from the dismissal of his case, yet his name did not appear at the top, implying that plaintiff was pro-se and did not participate in oral argument.  Sometimes that's a great decision, other times, not so great.
 

We read on to see that the Appellate Division decided the case on a somewhat related issue.  From the decision:  "Applying these standards to the instant case, the Supreme Court properly directed the dismissal of the legal malpractice cause of action. The plaintiff alleged that the defendants negligently advised him to prosecute an underlying action despite the fact that it was time-barred. However, the documentary evidence submitted by the defendants established that they specifically advised the plaintiff about probable statute-of-limitations problems, and that they reasonably commenced the underlying action despite such concern. Moreover, the documentary evidence also established that the underlying action was dismissed solely because the plaintiff failed to appear pro se with new counsel in that action within the time specified by the court, after the court had granted the motion of Robert L. Folks & Associates, LLP, a defendant in this action, to be relieved as counsel for the plaintiff in the underlying action. "

While the decision inZaidman v Marcel Weisman, LLC  2013 NY Slip Op 03323 Decided on May 8, 2013  Appellate Division, Second Department  does not specifically set forth what Plaintiff could not prove, we believe it would have been "notice" of a defective condition, and lack of proof (in the alternative) of creation of the dangerous condition.  In other words, could plaintiff prove that the plastic wrapper was left by the distributors or not?
 

"The defendant was retained to represent the plaintiff in an action to recover damages for injuries she allegedly sustained when she slipped and fell on a plastic-wrapped package of advertising flyers left on the steps of her residence. The defendant commenced an action on behalf of the plaintiff against the owner of the residence and against a marketing distribution company which allegedly distributed the flyers. The owner of the residence defaulted, and the defendant obtained a judgment against her and in favor of the plaintiff. Depositions of a representative of the marketing distribution company were not conducted until after the expiration of the statute of limitations, at which time the representative testified that the company did not start distributing that particular advertising flyer until a date subsequent to the plaintiff's accident, and named another company which allegedly was the distributor at the relevant time. The defendant was unable to commence an action against this other company or against the publisher of the advertising flyers, as the statute of limitations had expired, and the plaintiff commenced this action alleging legal malpractice. "

"The plaintiff failed to establish her entitlement to judgment as a matter of law on the issue of defendant's liability for malpractice, as she failed to establish, prima facie, that she would [*2]have prevailed in the underlying action against certain persons or entities whom she identified, even had they been timely joined as additional defendants (see Greene v Sager, 78 AD3d at 779; Theresa Striano Revocable Trust v Brancato, 71 AD3d 1122). "

The short answer to the question is yes, they do; the longer answer to the question is that their rights to first amendment protection of speech is very limited, and litigation over those rights will be stringently examined, or better put, subject to strict scrutiny. In Ruotolo v Mussman & Northey
2012 NY Slip Op 30860(U), Sup Ct, NY County Docket Number: 109449/2008
Judge: Saliann Scarpulla both plaintiff's case against the Police Department and his later legal malpractice case against the attorneys are lost.  This case was recently affirmed on appeal.

"Plaintiff Angelo Ruotolo (“Ruotolo”) is a former New York City Police Department (“NYPD”) officer. In June 2003, while still employed with the NYPD, Ruotolo commenced a civil rights action in the United States District Court for the Southern District of New York (“the civil rights action”) against the City of New York and several NYPD supervisors (collectively “the City defendants”). Non-party William Rold (“Rold”) initially represented Ruotolo in the civil rights action. In the civil rights action Ruotolo alleged that the City defendants retaliated against him for writing a report (“the Report”) about the possible health effects of environmental contamination in the 50th precinct, where Ruotolo served as a Command Safety Officer. Ruotolo alleged that after writing the Report, the City defendants arbitrarily denied him time off and overtime, reassigned him repeatedly, and disciplined him for trivial reasons. Ruotolo asserted claims that these retaliation-or.y actions violated the First Amendment and Due Process clauses of the U.S. Constitution, and various state whistle blower laws. "

"In November 2003, the City defendants moved to dismiss Ruotolo’s complaint, arguing that the Report was not protected by the First Amendment because Ruotolo prepared it in his capacity as a public employee, not as a private citizen. On August 25, 2004, Judge Stein denied the City’s motion with respect to the First Amendment and Due Process claims but granted the motion with respect to the state whistle blower claims. Then, in February 2004, the NYPD charged Ruotolo with visiting an out of borough location while on duty, subsequently placed him on modified duty and confiscated his firearms. Ruotolo eventually retired from the NYPD without a permit to carry a firearm as a civilian. Also, by mid-2004 conflicts had arisen between Ruotolo and Rold, his attorney in the civil rights action, and, in May, 2004, Rold withdrew as counsel for Ruotolo. Thereafter, M&N began representing Ruotolo in the civil rights action."

"Before the action could proceed to trial, the United States Supreme Court issued its decision in Garcetti v. Ceballus, 547 U.S. 410 (2006). In Garcetti, the Supreme Court held that the First Amendment does not “protect[] a government employee €from discipline based on speech made pursuant to the employee’s official duties.” 547 [J.S. at 41 3. Thereafter, the City defendants renewed their motion for summary judgment dismissing Ruotolo’s complaint on the grounds that the Report arose from Ruotolo’s official duties as a police officer, and thus was not protected by the First Amendment. In opposition, M&N argued that the amended complaint should in fairness be read to include Ruotolo’s conversation with the PBA attorney, which M&N contended were not pursuant to Ruotolo’s official job duties.
On July 19,2006, Judge Stein granted the City defendants’ motion for summary judgment, holding that Ruotolo prepared the Report pursuant to his official job duties and therefore had no First Amendment claim with respect to the Report. Ruotolo v. City of New York, 2006 U.S. Dist. LEXIS 49903, (S.D.N.Y. July 19,2006).’ Because Ruotolo had not pled any claim based upon the conversation with the PBA attorney in either the initial or amended complaints, Judge Stein based his dismissal of the civil rights action solely on claims arising from the Report itself. However, Judge Stein noted that even if he had considered Ruotolo’s discussion with the PBA attorney, Ruotolo’s First Amendment claim would fail because that discussion was held pursuant to Ruotolo’s official job duties, which included ‘‘answering questions about safety issues at the
precinct.” Ruotolo v. City of New Yo& 2006 U.S. Dist. LEXIS 49903, “12-13 (S.D.N.Y.
July 19, 2006)"

"Here, defendants have made a prima face showing that Ruotolo would not have prevailed on his First Amendment claim even if defendants had amended the complaint to include Ruotolo’s conversations with the PBA attorney in April, 2000. The First Amendment does not protect public employees from adverse employment decisions based on communications they make pursuant to their official duties, see Weintraub v. Bd, of Educ., 593 F.3d 196, 200-01 (2d Cir. 2010), and defendants have submitted sufficient evidence to show that Ruotolo’s conversation with the PRA attorney was made pursuant to his official duties."

"Defendants have also shown that Ruotolo would not have succeeded on a Due Process claim based on the City defendants’ deprivation of Ruotolo's’s firearms. Where a government agency randomly and arbitrarily deprives a citizen of a protected property interest, due process is satisfied if the state provides an adequate post-deprivation remedy. Hellenic Am. Neighborhood Action Comm. v. New York City, 101 F.3d 877, 880 (2d Cir. 1996)."
 

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, inK2 Inv. Group, LLC v American Guar. & Liab. Ins. Co. ; 2012 NY Slip Op 00001 
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. "
 

We believe the legal malpractice case based upon an unsuccessful medical malpractice case is among the most difficult cases of any to litigate.  The practitioner must understand medical malpractice as well as legal malpractice, an in Vitale v Meiselman  2013 NY Slip Op 30910(U)
April 25, 2013  Sup Ct, New York County  Docket Number: 108969/12  Judge: Eileen A. Rakower there is the additional layer of New Jersey v. New York law with which to contend,

"This is an action for legal malpractice arising from defendants  Meiselman & Gordon LLP, Alvin Gordon, and Michael Meiselman’s (collectively, “Defendants”) representation of plaintiffs Felicia Vitale and Louis Vitale (collectively, “Plaintiffs”) in a medical malpractice action that was dismissed by the United States District Court of New Jersey (‘the District Court”) with prejudice.. This action was commenced on August 3, 201 1. In its initial Complaint, Plaintiffs asserted a claim for legal malpractice based on Defendants’ failure to comply with the New Jersey Affidavit of Merit statute, N.J.S.A. 2A: 53A-26 to 29. Issue was joined on or about October 1 1 , 20 1 1. Plaintiffs then moved for leave to file a supplemental summons and amended complaint by motion dated March 28,2013
to add a claim based on Defendants’ failure to name the individual parties who had rendered care and treatment services, thereby limited Plaintiffs’ recovery. That motion was granted. Defendants answered the amended complaint on or about September 1 1,2012, denying that claim.
 

Plaintiffs move for an Order granting them partial summary judgment pursuant to CPLR $3212 as to the issue of negligence/liability against Defendants for legal malpractice in causing the underlying medical malpractice action to be dismissed with prejudice due to their failure to comply with New Jersey’s Affidavit of Merit statute, N.J.S.A. 2A53A-26 to 29. Plaintiffs state that they are “not seeking summary judgment on the ultimate issue of whether Defendants committed legal malpractice,” but rather on the “’sole issue of whether the defendant was negligent, an issue that has already been determined in the underlying action.’’

As plaintiffs’ expert Fruhling asserts in his affidavit, the New Jersey Affidavit of Merit Statute requires “a plaintiff, in an action for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, to supply an affidavit within 60 days following the date of the filing of the answer to the complaint by the defendant.” Fruhling asserts that the statute requires the expert to opine that there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the litigation fell outside acceptable professional or occupational standards or treatment practices. In Plaintiffs’ underlying medical malpractice case, Defendants submit the Affidavit of Merit of Salvatore Tedesco, M.D., a physician certified in the field of general surgery, who did not have a board certification in psychiatry and had no experience in the use of ECT and did not treat psychiatric patients in his clinical practice. Fruhling states that “an
attorney’s retention of a general surgeon to execute an Affidavit of Merit in support of a psychiatric malpractice claim was a departure from good and accepted legal malpractice.” Fruhling concludes that Defendants “failed to exercise the degree of care, skill and diligence commonly possessed and exercised by a member of the legal profession in New Jersey, and such failure led to the dismissal of Plaintiffs underlying action on the merits, with dismissal.”

Here, as the parties present conflicting expert affidavits concerning whether defendants were negligent in failing to exercise that degree of care, skill and diligence commonly exercised by an ordinary member of the legal community, Plaintiffs’ summary judgment motion is denied. Defendants’ cross motion for summary judgment as to Plaintiffs’ legal malpractice claims is also denied in light of issues of fact that exist in this case. Defendants have not established prima facie entitlement to summary judgment as to these claims. While Defendants allege that Plaintiffs have failed to demonstrate any evidence of proximate cause to support their legal malpractice action, Plaintiffs point to the affidavit of Dr. Goldstein (that had been submitted by Defendants on behalf of
Plaintiffs in the underlying action), who opines, with a reasonable degree of medical psychiatric certainty, that the treatment rendered at the Carrier Clinic departed from accepted standards of psychiatric practice and proximately caused Ms. Vitale serious and permanent injuries. Furthermore, Defendants have not established entitlement to summary judgment on Plaintiffs’ claim that they were negligent in limiting Plaintiffs’ recovery to $250,000 and by only naming Carrier Clinic as a party defendant. Defendants contend that they would have later named individual
defendants pursuant to the relation back doctrine. Plaintiffs state that Defendants have failed to demonstrate that the doctrine applied, and an amendment would have been permitted. As such, issues of fact exist with regard to this claim."

Yes, they are, and Soja v Keystone Trozze, LLC   2013 NY Slip Op 03147   Decided on May 2, 2013  Appellate Division, Third Department  is an example of their application.  In this professional malpractice (architects/house designers) plaintiff alleges that they built the house in violation of FEMA / flood elevation principals.
 

"Here, plaintiffs allege that a letter they received from Keystone in 2001 proves that Keystone failed to use the flood elevation report provided by plaintiffs' surveyor or to consult with the local Federal Emergency Management Agency coordinator when designing the home, as Keystone was contractually obligated to do [FN1]. Plaintiffs claim that, as a result of Keystone's allegedly faulty design plans, the first floor of their home was built almost two feet lower than applicable regulations allow, leading to increased flood insurance premiums, among other things. Plaintiffs contend that Keystone's conduct constitutes gross negligence, abrogating the limitation of liability clause. "

""As a general rule, parties are free to enter into contracts that absolve a party from its own negligence or that limit liability to a nominal sum" (Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d 675, 682-683 [2012] [citations omitted]). As a matter of public policy, however, exculpatory or limitation of liability clauses are not enforceable in the face of grossly negligent conduct (see id. at 683; Sommer v Federal Signal Corp., 79 NY2d 540, 554 [1992]; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 384-385 [1983]). "This applies equally to contract clauses purporting to exonerate a party from liability and clauses limiting damages to a nominal sum" (Sommer v Federal Signal Corp., 79 NY2d at 554). "

We disagree. The parties do not dispute the legal standard to be applied in determining whether conduct amounts to "gross negligence." In this context, it is settled that "gross negligence differs in kind, not only in degree, from claims of ordinary negligence. It is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing" (Finsel v Wachala, 79 AD3d 1402, 1404 [2010] [internal quotation marks and citations omitted]; see Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d at 683).

In our view, even assuming that the letter relied upon by plaintiffs may ultimately be used to prove a breach of contract or professional malpractice by Keystone, it does not raise a question of fact as to whether Keystone was grossly negligent. That is, while plaintiffs may have stated causes of action based upon breach of contract and common-law negligence, the conduct alleged does not evince the necessary reckless indifference to the rights of others that would render the limitation of liability clause unenforceable (see Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 824 [1993]; David Gutter Furs v Jewelers Protection Servs., 79 NY2d 1027, 1029 [1992]; Rector v Calamus Group, Inc., 17 AD3d 960, 961-962 [2005]; compare Abacus Fed. Sav. Bank v ADT Sec. Servs., 18 NY3d at 683-684; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d at 385). Accordingly, Supreme Court properly granted partial summary judgment in Keystone's favor.

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; , 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."

Standing in legal malpractice cases is determined by the question of privity.  Privity comes in several flavors.  One is whether there is a contract between client and attorney, written, oral, or implied.  If there is a contract, (even if the contract is implied from the factual representation which takes place), then that particular question of privity is answered.  The second flavor is reached when a question of whether a corporation or an individual has hired the attorney.  Sometimes the legal malpractice cases resembles a shareholder derivative claim, and may be dismissed for lack of standing.

In an analogous case involving accountants,Serano v Lipper  2013 NY Slip Op 30871(U)  April 24, 2013  Supreme Court,New York County,  Docket Number: 604396/2002  Judge: Shirley Werner Kornreich discusses this issue:

"“New York courts impose  a strict privity requirement to claims of malpractice: an accountant is not liable to a third party [or negligence in performing services on behalf of his client.  Lavanant v. General Acc. Ins.Co of America, 164 AD2d 73, 81 ( 1st Dept, 1990).  However, “while privity of contract is generally necessary to stale a cause of action for 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, Inc. v. Swirn, 259 AD2d 300 (1st Dept, 1999).

l’he Appellate Division, First Department, has adopted Delaware’s Tooley standard to
determine if a claim is direct or derivative.  See Udell v. Gilbert, 99 AD3d 108, 113-114 (1st Dept, 2012).  Under Tooley, the question of whether a claim is direct or derivative :must turn solely on the following questions: 1 ) who suffered the alleged harm (the corporation or the suing
stockholders, individually); and (2) who would receive the benefit of any recovery or other
remedy (the corporation or the stockholders, individually. Tooley v. Donaldson, Lufkin & Jenrette, Inc.  845 A2d 1031, 1033 (Del, 2004).

This case is really a fight amongst insurance companies, but it highlights an interesting source of legal malpractice cases: the referral.  While at first blush it might seem unreasonable for client to hold attorney responsible for merely giving a name to them to speak to, in American Guar. & Liab. Ins. Co. v Chicago Ins. Co.   2013 NY Slip Op 02845   Decided on April 25, 2013   Appellate Division, First Department we see the consequences of a mass mailing with indiscriminate referrals.
 

"Plaintiff insurer seeks to hold defendant insurer liable for claims it covered on behalf of their mutual insured, nonparty Roger A. Giuliani, Esq. Giuliani had engaged in a mass market mail campaign targeting senior citizens for estate planning legal services. Once the offer for legal services was accepted, Giuliani also offered to refer his clients to financial services representatives. Following the referrals, four clients became the victim of theft and fraud by the financial services representatives.

Each victim filed suit against Giuliani and the financial services representatives, alleging against Giuliani legal malpractice based on his failure to oversee the representatives. Two victims filed suit during the professional liability policy period covered by defendant, and two filed suit during the period covered by plaintiff (the Twomey and Bergmann actions). Giuliani also tendered the defense of the latter two to defendant, which denied coverage based on the claims being made outside the policy period.

Plaintiff settled those claims and then commenced this action, claiming that under defendant's "claims-made" policy, the latter claims were the "same and/or related" to the first two claims and that defendant should have provided coverage to Giuliani and therefore should reimburse it. The motion court agreed, finding that because the victims' relationship with Giuliani and the financial services professionals originated with the mass mailing campaign, the claims were related. We disagree. "

Today's New York Law Journal, in an article by Christine Simmons reports that a legal malpractice case against Willkie Farr & Gallagher has been dismissed. 

"His complaint alleged that Willkie lawyers Marc Abrams and Matthew Feldman made "full-throated warnings" that Lichtenstein risked drastic personal exposure if he did not authorize a bankruptcy filing. Lichtenstein said this advice was wrong because he would prevail in any lawsuit for breach of fiduciary duty.

But Acting Supreme Court Justice Melvin Schweitzer (See Profile), ruling on Willkie's motion to dismiss, said Lichtenstein admitted that the bankruptcy filing was necessary to prevent waste of Extended Stay's assets. "Where a fiduciary (as Mr. Lichtenstein admits he was) fails to file for bankruptcy or delays filing in order to serve his personal interest, such as to avoid liability under a guaranty, and the corporation's value is diminished as a result, he faces uncapped personal liability," the judge said. "Willkie was not negligent" and the firm provided advice consistent with the ordinary reasonable skill and knowledge possessed by a member of the legal profession, the judge said.

Thomas Kavaler, a Cahill Gordon & Reindel partner who represents Willkie, said in a statement, "We are gratified that the judge accurately saw that there was never anything to this claim at all." Lichtenstein's attorney, Andrew Celli, a partner at Emery Celli Brinckerhoff & Abady, declined to comment."
 

We'll have further comment on this case tomorrow.

One of the more interesting phenomena is the transition of claims into findings as a case goes to trial.  What were formerly "strong" claims, now are final findings of fact.  In Krausz v Kaufman 2013 NY Slip Op 30803(U) April 9, 2013 Sup Ct, New York County Docket Number: 104174/2008
Judge Debra A. James performs the magic.  Her decision dissects the question of whether plaintiff attorney is due fees, and whether defendant client can pursue legal malpractice claims.

"Under the Engagement Letter dated November 17, 2005, signed by both parties (the  Engagement Letter”), plaintiff attorney was retained by defendant to represent her in connection with a renewal of her spokesperson contract for the Snapple brand of beverages. Defendant
had been a spokesperson for Snapple since I993 and was commonly known as “The
Snapple Lady.” The Engagement Letter began by stating that “you hereby engage my legal
services (“I” or “me”) in connection with the negotiation and review of your proposed
spokesperson contract for 2006 (and possibly future extensions) with the “Snapple”
brand.” With respect to the fee to be charged by plaintiff for legal services, the
Engagement Letter stated in pertinent part Upon execution of this agreement, you shall pay me a sum equal to five percent (5%) of any and all Gross income earned or received by you, or on
behalf of your services and/or activities resulting or deriving from your contract with the “Snapple” brand in any media, now or hereafter known. Notwithstanding the above, to the extent that your compensation includes amounts that are clearly defined as reimbursements of your expenses (including repayment of your staffs’ salaries, or your travel and appearances-related expenses), such amounts shall be excluded from the calculation of my fee.

The genesis of the end of the parties’ attorney-client relationship was a disagreement between defendant and Snapple about what constitutes an “Appearance” as the term is defined under the Contract. In pertinent part, the Contract provided that defendant “make up to fifty personal appearances per each twelve month period (hereinafter referred to as ‘Appearances’) to promote the Snapple brand”. The Contract defined “Appearances” as “a period of four (4) hours, exclusive of [defendant’s] prep and travel time, during which [defendant] gives an interview with the press and/or personally appears in support of a live initiative planned and approved by Snapple with
a focus on promoting the Snapple brand.” As for defendant‘s compensation, the Contract stated that “in full and complete consideration of [defendant] entering and fulfilling all of her obligations under this Agreement, Snapple shall pay [defendant] a fee of Five Hundred Seventy Seven Thousand Five Hundred Dollars ($577,500)” in each of the two years. In accordance with the Contract, Snapple paid defendant her fee in four installments- $350,000 on May 18, 2006; $227,500 on August 30, 2006; $350,000 on March 12,2007, and $227,500 on September 7,2007.

By e-mail on June 21, 2006, plaintiff relayed to Sean Gleason, who had negotiated the Contract on behalf of Snapple, that defendant understood that under the Contact, each individual press interview counted as a single appearance, for example five interviews over a four hour period would count as five of 100 appearances for the two year term. In his reply e-mail, Gleason responded “That is not the contract I signed. If she does 5 interviews- or 500- over the 4-hour period, so long as it stays within the 4 hour time frame, that counts as ONE appearance.”

Promptly after she was paid by Snapple on May 18, 2006, defendant paid plaintiff attorneys fees in the amount of 5% of the first installment of $350,000, or $1 7,500. However, though defendant, in accordance with the Contract, received her installments from Snapple on August 30, 2006, March 12, 2007 and September 7, 2007, she failed to remit any further payments to plaintiff. On September 6, 2006, defendant e-mailed a message to plaintiff that stated in essence that plaintiff would have to wait until defendant determined defendant’s expenses, which would be deducted from the fees defendant received from Snapple, before defendant would apply the 5% to her earnings and remit the balance of the attorneys’ fees owed to plaintiff. Defendant retained the firm of Brown Moskowitz 8 Kallen (“BM&K) who sent a letter dated September 20, 2006 on behalf of defendant to plaintiff. In that letter BM&K, inter alia, noted plaintiffs pledge in her letter of September 8, 2006 to continue to work for defendant pursuant to the Engagement Letter, characterized her demands for payment of attorney’s fees as illegitimate, and acknowledged and accepted plaintiff‘s resignation by e-mail dated September 6, 2006."

"Having reviewed the evidence, both the testimony and records, the court determines that plaintiff fully completed the legal services she promised to render to defendant under the Engagement Letter dated November 17, 2005 (“Engagement Letter”), that defendant breached that Engagement Letter in failing to remit the balance of attorneys’ fees outstanding thereunder, and that plaintiff is entitled to recover such fees from defendant."

Is it possible to prove legal malpractice at a trial which goes to the jury?  While an argument can be made that the attorney failed to call a particular witness, or failed to offer a particular piece of evidence, the countervailing argument will be that an attorney may choose among several different reasonable trial strategies, and if the case went all the way to the jury, regardless of its outcome, then attorney competence is demonstrated.  If the work was incompetent, it would have been dismissed at trial.

Schlenker v Cascino  2013 NY Slip Op 50631(U)  Decided on April 12, 2013  Supreme Court, Albany County  Platkin, J. is a deeply analyzed discussion of just such an incident.  Apparently, the clients were bringing in solid waste, and dumping it on their property, all the while arguing that they were rendering their farm more crop-friendly.
 

"Plaintiff brought this action seeking to recover monies for legal services rendered to defendants. In response, defendants asserted a counterclaim for legal malpractice. After disclosure was completed and a note of issue filed, the Court established a day certain for trial of April 8, 2013. Subsequently, plaintiff moved for summary judgment on the breach of contract and account-stated causes of action and for dismissal of the counterclaim. The Court granted summary judgment to plaintiff on the claim for an account stated, denied as moot the application with respect to the claim for breach of contract and granted in part and denied in part the application to dismiss the counterclaim for legal malpractice (Schlenker v Cascino, et al., Supreme Court, Albany County, Index No. 5650-11, December 31, 2012, Teresi, J.).

A jury was selected on April 8, 2013, and proof commenced the following morning. Defendants' allegations of malpractice pertain to plaintiff's representation of them in an enforcement action brought by the Town of Copake ("the Town"). The action ultimately proceeded to trial ("the Copake Trial") over three days in February and March of 2009. Following the close of proof and the parties' submission of proposed factual findings and legal memoranda, Supreme Court, Columbia County (Nichols, J.) determined that defendants had violated certain provisions of the Town Code by depositing solid waste, operating a recycling business and storing commercial equipment and materials without proper authorization. In so doing, Supreme Court rejected defendants' contention that the Town's actions unreasonably restricted their right to engage in farming operations in violation of Agriculture & Markets Law ("AML") § 305-a (see Town of Copake v 13 Lackawanna Props., LLC, 99 AD3d 1061,1062 [3d Dept 2012]).

At the instant trial, plaintiff testified that he decided not to seek the introduction of these documents into evidence after weighing a number of strategic considerations. Among other things, plaintiff testified that he did not believe that these documents reflected the Department's final word on the subject. Plaintiff explained that he was aware that the Department was reconsidering its prior determinations based upon allegations that defendants' alleged agricultural use of the property was merely a pretext for commercial activities, including solid waste disposal.

The Court concludes that defendants have failed to adduce legally sufficient proof to support their claim that plaintiff deviated from relevant professional standards in failing to introduce the three Department letters at the Copake Trial. An attorney's exercise of professional judgment involving the selection of appropriate evidence to be introduced at trial generally is not actionable as malpractice (Bixby, 62 AD3d at 1140). Given the ongoing nature of the AML § 305-a review process, concerns that the Town and others had presented the Department with damaging new evidence, and the prospect that the Department's interim determinations would soon be withdrawn or limited, plaintiff's uncontroverted testimony establishes as a matter of law that his decision not to introduce the Department letters constituted a reasonable course of action under the circumstances. To be sure, introducing the letters in an effort to bolster Mr. Cascino's testimony, as defendants' current counsel advocates, may well have been a legitimate trial strategy. But the "selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 [1985]). "

For more of the Court's reasoning, read the original, which discusses expert testimony and ascertainable damages.

As cases become problems, or as basic problems become more prominent in litigation cases, one offshoot is that litigants take it into their own hands to try to remedy the situation.  Whylie v Pager 2013 NY Slip Op 50601(U)  Decided on April 18, 2013  Supreme Court, Kings County
Schack, J. is just such a case.  She claimed injury, and retained defendants to represent her.  No medical expert was obtained, and her case was dismissed.  We'll let Judge Schack take it from here:
 

"Defendants, in the underlying action, moved for summary judgment and dismissal of plaintiff WHYLIE's complaint, claiming absence of medical causation. This was supported by defendants' medical experts. Defendant PAGER opposed the summary judgment motions, but lacked an expert willing to causally relate the May 3, 2001-incident to the injuries and symptoms claimed by plaintiff WHYLIE. Plaintiff WHYLIE's treating physician, Dr. Denise Harrison [exhibit A of motion], opined that "a careful review of the literature found no definitive link between the chemicals she was exposed to and her complaints." Further, Dr. Harrison reported that "Ms. Whylie was also evaluated by a neurologist and it was determined that her symptoms had no neurological etiology and was thought to have a psychotic disorder."

In her decision and order of November 7, 2008 in the underlying action, Justice Yvonne Lewis granted defendants' motions for summary judgment for lack of medical causality and dismissed plaintiff WHYLIE's complaint. Plaintiff WHYLIE, appearing pro se, appealed Justice Lewis' decision and order. The Appellate Division, Second Department unanimously affirmed Justice Lewis, on December 7, 2010"
 

Plaintiff WHYLIE, after her dismissal of defendant PAGER, brought numerous applications to Supreme Court, Kings County, in the underlying dismissed action. In one of her affidavits, plaintiff WHYLIE acknowledged that defendant PAGER stopped representing her on November 8, 2008 [exhibit F of motion].

Then, on December 30, 2011, more than three years after PAGER ceased to represent WHYLIE, plaintiff WHYLIE commenced the instant legal malpractice action against defendant PAGER, claiming that in the underlying action, defendant PAGER committed legal malpractice and breach of contract. Plaintiff WHYLIE demanded judgment of $1,000,000 for compensatory damages and $1,000,000 for punitive damages."
 

It is clear that plaintiff WHYLIE failed to allege or demonstrate how defendant PAGER failed to exercise "the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" and how this alleged breach of duty "proximately caused the plaintiff to sustain actual and ascertainable damages." (See Olaiya v Golden, 45 AD3d 823, 823-824 [2d Dept 2007]; Mourtil v Korman & Stein, P.C., 33 AD3d 898, 899 [2d Dept 2006]; Avery v Sirlin, 26 AD3d 451 [2d Dept 2006]; Natale v Samel & Assoc. (308 AD2d 568, 569 [2d Dept 2003]). The underlying action was dismissed because defendants established their entitlement to judgment as a matter of law. Defendants' evidence demonstrated the absence of medical causality between the May 3, 2001-incident and the damages claimed. Plaintiff WHYLIE, in the underlying action, had no medical evidence to respond with or counter defendants' arguments. Moreover, plaintiff WHYLIE fails to allege that the underlying action was meritorious or that it would have been successful. "

"Further, the instant summons with notice was filed on December 30, 2011, more than three years after November 8, 2008, the final date of defendant PAGER's representation of plaintiff WHYLIE. As noted above, in Tsafatinos v Lee David Auerbach, P.C., plaintiff WHYLIE's breach of contract claim is duplicative of malpractice and therefore subject to the same three-year statute of limitations as the malpractice claim. (CPLR § 214 [6])."

As the Appellate Division plows through the "what would have been the outcome" analysis of Ruotolo v Mussman & Northey    2013 NY Slip Op 02678   Decided on April 18, 2013
Appellate Division, First Department , we see the in depth factual and hypothetical work that's done in a legal malpractice case.  Here, a former police officer sues his attorneys for failures in suing for employment discrimination and whistle blower status.  He fails, as the AD delves far into how his case hypothetically would have come out, had the attorneys performed as he says they should.
 

"In this legal malpractice action, plaintiff, a retired New York City police officer, retained defendants to represent him in a lawsuit against the New York City Police Department (NYPD) and the City of New York. The complaint in that lawsuit alleged retaliation in violation of the First Amendment based on plaintiff's writing of a report, written pursuant to his duties as a safety officer, that identified certain possible environmental hazards at his police precinct. The complaint was dismissed because, while the case was pending, the United States Supreme Court held, in Garcetti v Ceballos (547 US 410 [2006]), that a government employee cannot claim First Amendment violations against his employer based on speech made "pursuant to" the employee's official duties (id. at 421).

Plaintiff subsequently brought this malpractice action, primarily due to defendants' alleged failure to amend the complaint to include claims that, allegedly, would not have been dismissed in light of Garcetti.

Supreme Court correctly held that defendants made a prima facie showing of lack of causation, and that plaintiff failed to present evidence in admissible form sufficient to raise a triable issue of fact (see e.g. GUS Consulting GmbH v Chadbourne & Parke LLP, 74 AD3d 677, 679 [1st Dept 2010], lv denied 16 NY3d 702 [2011]). In particular, plaintiff failed to demonstrate that he would have succeeded on the merits of the underlying action "but for" defendants' alleged negligence in failing to amend the complaint (Aquino v Kuczinski, Vila & Assoc., P.C., 39 AD3d 216, 218-219 [1st Dept 2007]).

Indeed, plaintiff would not have prevailed on his First Amendment retaliation claim even if defendants had amended the complaint to include plaintiff's April 2000 conversation with a Police Benevolent Association (PBA) attorney regarding his report. The NYPD Patrol Guide states that, as a safety officer, he was required to "[a]ct as liaison for command on safety and health issues," which he did in meeting with the PBA attorney. In addition, plaintiff stated, in his deposition in the civil rights matter, that the PBA attorney sought him out specifically to discuss [*2]the report, and that he spoke to the PBA attorney at the precinct, on work time, with his supervisor's knowledge. Thus, his conversation with the PBA attorney was undoubtedly "pursuant to" his duties as a safety officer and did not amount to speech protected by the First Amendment (Garcetti, 547 US at 421).

Plaintiff also would not have prevailed on any claim of a due process violation based on NYPD's confiscation of his weapons before his retirement. Indeed, plaintiff does not dispute that there were postdeprivation state remedies available to him (Hudson v Palmer, 468 US 517, 533 [1984]; Hellenic American Neighborhood Action Committee v City of New York, 101 F3d 877, 880 [2d Cir 1996], cert dismissed 521 US 1140 [1997]). Although there is a factual issue as to whether defendants advised plaintiff to obtain counsel to pursue his claim in state court,
it is not a material issue because plaintiff never alleged malpractice on this basis. Nor does it warrant further discovery pursuant to CPLR 3212(f). "

Frequently, clients discern mistakes make in their cases, and wish to start a legal malpractice case.  Unfortunately, departure from good practice is but one of the four elements of legal malpractice.  The merit of most legal malpractice cases is determined by analysis of the middle two points.  Was the mistake a proximate cause of damage and would the same result have obtained "but for" the mistakes of counsel. 

In Grimaldi v Newman & Okun, P.C. 2013 NY Slip Op 02663  Decided on April 18, 2013  Appellate Division, First Department plaintiff argues that a failure to seek leave to file a late notice of claim. The Court, however, concentrated on the lack of "serious physical injury" in this motor vehicle injury case. In the end a court found that plaintiff could not show either of the two middle elements of legal malpractice.
 

"Defendants contend that the legal malpractice action was correctly dismissed because, notwithstanding any alleged failure on counsel's part, plaintiff would not have prevailed in the underlying serious injury action since the record evidence shows that plaintiff could not have raised a triable issue of fact as to whether he suffered a serious injury.

Plaintiff alleged that the July 2003 accident resulted in serious injury to his right knee under three statutory categories. Defendants' evidence in the form of, inter alia, (a) pre-2003 medical reports noting prior incidents of trauma to plaintiff's right knee, (b) plaintiff's sworn statements regarding his daily activities in the first 180 days following his 2003 accident, and (c) a medical examination and opinion from defendants' expert orthopedist, was sufficient to establish prima facie entitlement to summary judgment dismissing plaintiff's serious injury allegations.

Plaintiff's proof of the alleged serious injury was insufficient to support his claim. Plaintiff did not offer proof of objective testing, accompanied by quantified results as would support the claimed knee limitations, apart from early range-of-motion flexion tests whose findings, as to restrictions, were improperly premised upon subjective complaints of pain (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). The qualified assessment of plaintiff's right knee condition, made by plaintiff's treating orthopedist, whose opinion in support of plaintiff's serious injury claim was premised upon his observations made during an arthroscopic procedure he performed on plaintiff's knee in 2006, failed to address the "unremarkable" findings of a 2003 MRI study, which was ordered approximately nine days after [*2]plaintiff's accident. Moreover, the surgical observations made by plaintiff's orthopedist did not objectively explain how alleged limitations in plaintiff's right knee differed from what would be the knee's normal function, purpose and use (see Toure, 98 NY2d at 350). Further, by 2011, plaintiff's orthopedist acknowledged that plaintiff had noted only occasional weather-related complaints with his right knee. Plaintiff was able to resume skiing, but not running.

Plaintiff's own sworn statements, including that he returned to work a week after the accident and was primarily unable to partake in regular recreational exercise, undermined his claim that he was unable to partake in substantially all the material acts that constituted his usual and customary daily activities for at least 90 of the first 180 days (see Valdez v Benjamin, 101 AD3d 622, 623 [1st Dept 2012]; Atkinson v Oliver, 36 AD3d 552 [1st Dept 2007]). Moreover, plaintiff's treating orthopedist failed to substantiate, via a medically objective opinion, whether plaintiff lacked the capacity to engage in substantially all of his customary daily activities for 90 out of the first 180 days (see e.g. DeSouza v Hamilton, 55 AD3d 352 [1st Dept 2008]; Ortega v Maldonado, 38 AD3d 388 [1st Dept 2007]).

Further, as found by the motion court, plaintiff's unexplained gap in treatment between April 2006 and February 2011 undermined his serious injury claim (see e.g. Pommells v Perez, 4
NY3d 566 [2005]; Valdez, 101 AD3d at 623). "

Is it that Plaintiff could not articulate a reason why Defendant made a mistake that caused him damage?  Is it that the Appellate Division just didn't like the case and agreed that it should be dismissed?  Did the attorneys make a subjectively and objectively reasonable choice of strategy that just didn't work?  We'll never know. 

Siracusa v Sager   2013 NY Slip Op 02563   Decided on April 17, 2013   Appellate Division, Second Department  stands for the proposition that it might be any of these three. 
"Initially, we agree with the plaintiff's contention that the Horn defendants did not establish their entitlement to dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1). "A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" (Bodden v Kean, 86 AD3d 524, 526; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 810). Here, the evidence submitted by the Horn defendants [*2]either was not documentary within the meaning of CPLR 3211(a)(1) or failed to utterly refute the plaintiff's allegations and conclusively establish a defense as a matter of law (see Rietschel v Maimonides Med. Ctr., 83 AD3d at 811; Fontanetta v John Doe 1, 73 AD3d 78, 84-85; see also Bodden v Kean, 86 AD3d at 526).

However, the Supreme Court correctly granted the Horn defendants' motion to dismiss the complaint insofar as asserted against them to the extent that it was predicated on CPLR 3211(a)(7), as well as the separate motion of the defendants Audrey Sager, Steven Gellerman, and Sager & Gellerman, Esq., to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7).

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87; Rietschel v Maimonides Med. Ctr., 83 AD3d 810).

To succeed in a legal malpractice action, a plaintiff must prove that his or her attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, and that this failure proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Markowitz v Kurzman Eisenberg Corbin Lever & Goodman, LLP, 82 AD3d 719; Frederick v Meighan, 75 AD3d 528, 531; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 640-641).

Here, the plaintiff's allegations with respect to whether the defendants exercised the degree of care, skill, and diligence commonly possessed by a member of the legal community amounted to no more than his dissatisfaction with their "strategic choices" and, thus, as a matter of law, did not support a malpractice claim (Albanese v Hametz, 4 AD3d 379, 380; see Rosner v Paley, 65 NY2d 736, 738; Bernstein v Oppenheim & Co., 160 AD2d 428, 430-431; cf. Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562). In any event, the complaint fails to set forth facts sufficient to allege that the defendants' purported negligence proximately caused the plaintiff to sustain actual and ascertainable damages (see Wald v Berwitz, 62 AD3d 786). "

A basic rule of legal malpractice is that an attorney may not be granted a fee by a court or tribunal if there is legal malpractice present.  Since an attorney may not obtain a fee if there has been legal malpractice, it follows, ipso facto, that if a court or a tribunal grants a fee to an attorney, then there can have been no legal malpractice.  For the most part, it does not matter whether the question of legal malpractice has been raised or not.  So it goes in Bob v Cohen   2013 NY Slip Op 02499
Decided on April 16, 2013   Appellate Division, First Department.  In Bob the attorneys asked for a fee in the WC proceedings, and then used that fee as a defense to legal malpractice.
 

"On the merits, defendants were entitled to dismissal of this legal malpractice action commenced by their former client on res judicata grounds. The Workers Compensation Board's award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff (see Workers' Compensation Law § 24), precludes plaintiff's present claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants' fee application (see e.g. Lusk v Weinstein, 85 AD3d 445 [1st Dept 2011], lv denied 17 NY3d 709 [2011]; Zito v Fischbein Badillo Wagner Harding, 80 AD3d 520 [1st Dept 2011]). "
 

In this subrogation case, an insurance company has successfully pleaded fraud and legal malpractice.  The insurance company plaintiff proceeded in the subrogation and alleged that legal malpractice was committed in failing to pursue a default judgment.  They claimed fraud when the law firm billed for making a motion for a default judgment when it did not. So, in Vermont Mut. Ins. Co. v McCabe & Mack, LLP   2013 NY Slip Op 02392   Decided on April 10, 2013   Appellate Division, Second Department the AD found:

 "However, the Supreme Court erred in granting that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging fraud. "To properly plead a cause of action to recover damages for fraud, the plaintiff must allege that (1) the defendant made a false representation of fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff's reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance" (Pace v Raisman & Assoc., Esqs., LLP, 95 AD3d 1185, 1188-1189; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553; New York Univ. v Continental Ins. Co., 87 NY2d 308). Here, the complaint alleged that the defendants committed fraud by misrepresenting that they "made a motion for a default judgment" when they "never made, filed, or drafted" such a motion, that the plaintiff relied on the misrepresentation, and that the defendants billed the plaintiff for drafting the motion. Those allegations were sufficient to state a cause of action to recover damages for fraud (see Guggenheimer v Ginzburg, 43 NY2d at 275; Rabos v R & R Bagels & Bakery, Inc., 100 AD3d 849, 853).

The defendants' alternate ground for dismissal of the causes of action alleging fraud, that those claims were duplicative of the causes of action alleging legal malpractice (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545), is without merit. The evidence submitted by the defendants does not establish that the plaintiff sustained no other damages, separate and apart from those sought as a result of the alleged legal malpractice, as a result of the defendants' alleged fraudulent conduct (see Guggenheimer v Ginzburg, 43 NY2d at 274-275; East Hampton Union Free School Dist. v Sandpebble Bldrs. Inc., 66 AD3d 122, affd 16 NY3d 775; Fleming v Kamden Props., LLC, 41 AD3d 781). Where, as here, tortious conduct independent of the alleged malpractice is alleged, a motion to dismiss a cause of action as duplicative is properly denied (see Lax v Design Quest N.Y. Ltd., 101 AD3d 431; Rupolo v Fish, 87 AD3d 684, 686).

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was to dismiss the causes of action alleging fraud.

If one reads enough legal malpractice cases, there are interesting overlaps.  One such overlap, with surprising results came up today.  in Angeles v Aronsky   2013 NY Slip Op 02454   Decided on April 11, 2013   Appellate Division, First Department  we see the following: "For a claim for legal malpractice to be successful, "a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for' the attorney's negligence" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [internal citation omitted]). A client is not barred from a legal malpractice action where there is a signed "settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel" (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435 [1st Dept 2011] [internal quotation marks omitted], quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]). "

It has been the law in NY for some time that a settlement of the underlying action that has been effectively compelled does not bar a subsequent legal malpractice action.  The overlap we speak of was created by a second decision in Garnett v Fox, Horan & Camerini, LLP   2013 NY Slip Op 50560(U)   Decided on April 5, 2013   Supreme Court, New York County   Kern, J.   Here, the Garnett claims were ultimately dismissed.  "Plaintiff commenced the instant action asserting, among other things, a claim for legal malpractice against defendant in relation to defendant's representation of Boylan International, Inc. ("Boylan International") in an underlying rent non-payment action. Defendant now moves for an order granting it summary judgment and dismissing plaintiff's complaint. For the reasons set forth below, defendant's motion is granted."

"On or about October 22, 2008, plaintiff commenced the instant action. Plaintiff's initial complaint contained five causes of action: (1) legal malpractice in failing to properly prepare for trial; (2) legal malpractice in failing to properly conduct the trial; (3) legal malpractice in negotiating and coercing the settlement; (4) legal malpractice in acting under a clear conflict of interest in coercing the settlement; and (5) fraud in attempting to dissuade Boylan International from taking action to vitiate the settlement. Fox Horan moved to dismiss the initial complaint and the court granted its motion. However, it also granted leave to amend the first three causes of action for legal malpractice. Boylan International then submitted its Amended Complaint and Fox Horan again moved to dismiss. The court granted Fox Horan's motion and Boylan International appealed. On appeal, the Appellate Division First Department reversed the lower court's dismissal, reinstated the malpractice claims and remanded the case for response, discovery and trial. Fox Horan has now made the instant motion for summary judgment.On a motion for summary judgment, the movant bears the burden of presenting sufficient evidence to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Once the movant establishes a prima facie right to judgment as a matter of law, the burden shifts to the party opposing the motion to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim." Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). However, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment. Id. "

Representation of clients may be limited or general.  An attorney-client relationship is considered to be general unless it is specifically limited by a retainer agreement.  That retainer agreement had best be very specific, and it should set the limits quite clearly.  If it does not, then the attorney can be held responsible for all acts that should have been performed, even if outside the scope of the "limited" retainer.

In Superior Tech. Solutions, Inc. v Rozenholc ;  2013 NY Slip Op 30690(U)  April 1, 2013
Sup Ct, New York County  Docket Number: 100856/12  Judge: Joan A. Madden we see one such example.  The attorney says that he was retained solely for  potential litigation with the commercial landlord.  The client then, after some representation, fails to renew the lease.  Is the attorney responsible?

"However, the issue of whether Rozenholc had a duty to renew the plaintiffs’ lease is different from whether the plaintiffs’ orally renewed their lease, and this issue was not addressed in the prior two actions. In the New York Supreme Court decision dated May 1 1,20 1 1 , the court merely determined that Lee’s alleged attempt to orally renew the lease was insufficient under the terms of the lease. The Bankruptcy Court similarly discussed the validity of Lee’s oral lease renewal. A determination of whether the lease renewal was within Rozenholc‘s duties was not made within the course of either litigation, so the doctrine of law does not apply.

Under this standard, the complaint adequately states a cause of action for legal malpractice based on allegations that Rozenholc failed to advise the plaintiffs of the date that the renewal option had to be exercised? and/or failed to exercise the renewal option on behalf of plaintiffs and that but for Rozenholc’s negligence, Superior would not have become holdover tenant, subject to an eviction proceeding and ineligible for a buyout offer, and therefore damaged.

The court also rejects Rozenholc’s argument that he is not the proximate cause of plaintiffs’ damages due to successor counsel’s liability. While it has been held that predecessor counsel’s negligence may not be the proximate cause of plaintiffs’ alleged damages when subsequent counsel had a sufficient opportunity to protect plaintiffs’ rights (E& Perks v. Lauto & Garabedian, 306 A.D.2d 261,262 (2nd Dept 2003), this rule is inapplicable here, as the right to renew the relevant lease expired on October 3 1,20 10, before the subsequent counsel was retained ."

Finally, the documentary evidence and in particular the retainer agreement does not establish that the legal malpractice action is insufficient as a matter of law. Specifically, the retainer agreement which describes Rozenholc’s services to include which includes bringing actions to protect plaintiffs’ interest in the lease and representing plaintiffs in negotiations with the landlord arguably can be interpreted to include exercising plaintiffs’ renewal option under the lease."

Hearing that your legal malpractice case is "unavailing" is terrifying.  Nevertheless, this case was dismissed, appealed, reversed, remanded, and immediately dismissed again, this time on summary judgment.  Garnett v Fox, Horan & Camerini, LLP  2013 NY Slip Op 30703(U)  April 5, 2013  Sup Ct, New York County  Docket Number: 114079/2008  Judge: Cynthia S. Kern is the story of a business gone bad, with crippling rent that it could no longer handle.

"Plaintiff commenced the instant action asserting, among other things, a claim for legal malpractice against defendant in relation to defendant’s representation of Boylan International,
Inc. (“Boylan International”) in an underlying rent non-payment action. Defendant now moves
for an order granting it summary judgment and dismissing plaintiffs complaint. For the reasons
set forth below, defendant’s motion is granted.

Over the years, Boyland International failed to make payments required by the Lease and
subsequent non-payment proceedings were initiated, including the Underlying Action herein at
issue. The Underlying Action was brought on or about August 2003, On or about April 2 1,
2004, Boylan International retained Fox Horan to represent it in the Underlying Action pursuant
to a written retainer (the “Retainer Agreement”). At that time, Boylan International was already
in default and facing eviction. However, after retaining Fox Horan, a stipulation was entered into
which, among other things, allowed Boylan International to Answer and assert an affirmative
defense. During the course of the litigation, the landlord’s attorney became ill and the case was
marked off the calendar for approximately two years. During this period, Boylan International
did not pay rent or additional rent and the arrears grew to approximately $675,000.

During trial, Fox Horan presented expert testimony of Gary Goldman in order to establish
that Boylan International should not be liable for $243,897 of the $276,000 in real estate tax
arrears based on the New York Supreme Court’s holding in Blacktar Publishing Company v.
460 ParkAssociates, 137 Misc.2d 414 (N.Y. Sup. Ct. 1987) (the“Blackstar defense”). In
Blackstar, the court found that a tax escalation clause in a commercial lease requiring the tenant
to pay as additional rent a percentage of real estate taxes for every year during the lease did not
necessarily require the tenant to pay for any increased tax assessments which resulted from
extraordinary improvements to the premises that were not contemplated by the parties at the time
the lease was executed. See id. Thus, both parties agree that the testimony of Mr. Goldman was
crucial as this was its only viable defense to the non-payment of the real estate taxes. Fox Horan
tried to offer various exhibits to corroborate the testimony of Mr. Goldman but the Court refused to admit these exhibits based on objections by opposing counsel. Both parties herein agree that
these exhibits were “improperly precluded.” After Mr. Goldman finished his testimony, Fox
Horan called Ms. Boylan to testify. While on the stand, after having been sworn in, Ms. Boylan
addressed the Judge directly before counsel from Fox Horan had an opportunity to ask any
questions. The Judge then went off the record and a settlement was reached (the “Stipulation of
Settlement”).

In the instant action, the defendant has presented sufficient evidence demonstrating the
absence of any material issues of fact warranting a grant of summary judgment in its favor. A
prima facie case for legal malpractice requires a plaintiff to establish “that the defendant attorney
failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member
of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would
have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence.” Lsder
v. Spigel, 9 N.Y.3d 836 (2007) (quoting Am-Base Corp. Y: Davis Polk & Wardwell, 8 N.Y.3d 6
 

Specifically, when the underlying action was settled, a plaintiff must show that
but for its attorney’s actions it would not have entered into the settlement or it would have been
entitled to a more favorable settlement. See Rau v. BorenkofJ; 262 A.D.2d 388,389 (lst Dept
1999); See Rogers v. Ettinger, 163 A.D.2d 257 (lst Dept 1990). Thus, in order to succeed “on a
motion for summary judgment to dismiss the action, a defendant must proffer admissible
evidence establishing that the plaintiff is unable to prove at least one of the essential elements of
his or her case.” E. Suydam v. J 0 ’Neill, 276 A.D.2d 549 (2ndD ept 2000).

Legal malpractice plaintiffs argue that defendant attorney handled the case badly, and then go on to say that if the attorney had done "x", there would have been a better or different outcome.  Defendant argues that this is all "speculation."  If you were the Court, how would you decide?  Remember that legal malpractice analysis is always a comparison of how a "hypothetical" judgment, which might have been reached had the attorney done "x" versus the actual outcome.

In Citidress II Corp. v Tokayer  2013 NY Slip Op 02369   Decided on April 10, 2013   Appellate Division, Second Department we see the AD taking a position that "Speculative contentions about what might have happened had the defendant attorney (hereinafter the defendant) taken a different approach in litigating a case on behalf of the plaintiff were not sufficient to support the plaintiff's allegations of legal malpractice (see Humbert v Allen, 89 AD3d 804; Dempster v Liotti, 86 AD3d 169, 180; Wald v Berwitz, 62 AD3d 786)."

Isn't all legal malpractice "speculation" about what would have happened if the attorney had done "x" and whether the failure to do "x" was a departure?

One of the cornerstones of legal malpractice law is that any hypothetical judgment that plaintiff should have received must have been collectible.  If defendant had filed a bankruptcy petition, or there was no insurance and no assets, then any hypothetical judgment that the attorneys did not obtain would not have been collectible, hence, there are no actual and ascertainable damages in the legal malpractice.  Example:  a judgment proof person negligently breaks your leg.  Whom would you have successfully sued and collected from?  If the answer is "nobody" then you do not have a good legal malpractice case.

In New York, the four departments disagree with each other over who has the burden of proof of collectibility.  In the Second and Fourth Departments, its plaintiff.  In the First Department, its defendant.  Lindenman v Kreitzer  2004 NY Slip Op 02498 [7 AD3d 30] ; April 6, 2004
Appellate Division, First Department is the landmark case.  "To the extent that Larson v Crucet (105 AD2d 651 [1984]) holds that proof of the collectibility of the underlying judgment is an essential element of the plaintiff's cause of action for legal malpractice, we overrule that decision.

We further find that, where relevant, the issue of noncollectibility should be treated as a matter constituting an avoidance or mitigation of the consequences of the attorney's malpractice (see e.g. Jourdain v Dineen, 527 A2d 1304, 1306 [Me 1987]) and the erring attorney should bear the inherent risks and uncertainties of proving it (see Kituskie v Corbman, 452 Pa Super 467, 474, 682 A2d 378, 382 [1996], affd 552 Pa 275, 714 A2d 1027 [1998]; Power Constructors, Inc. v Taylor & Hintze, 960 P2d 20, 31 [Alaska 1998]; Smith v Haden, supra, 868 F Supp at 2-3). "

Now, after many years, we see the near end of the Lindenman case. Lindenman v Kreitzer
2013 NY Slip Op 02356  Decided on April 9, 2013  Appellate Division, First Department.  From what we can glean, defendant presented sufficient evidence to trigger a hearing on the collectibility of the hypothetical judgment.  Put another way, defendant shouldered its burden on the issue, and a hearing is now to be held. 

"The trial court's award of $5,500,000 for past and future pain suffering deviated materially from reasonable compensation to the extent indicated. Although plaintiff Bruce Lindenman demonstrated that he suffered a brain injury, he did not undergo surgery and was able to continue to engage in activities such as driving and playing tennis (cf. Paek v city of New York, 28 AD3d 207 [1st Dept 2006], lv denied 8 NY3d 805 [2007]). The award for past and future loss of services deviated materially from reasonable compensation under the circumstances to the extent indicated (see Penn v Amchem Products, 85 AD3d 475 [1st Dept 2010]; Cutrone v New York City Transit Auth., 73 AD3d 462 [1st Dept 2010]. Given that this was a bench trial, we need not remand for a new trial on the issue of damages (see Chock Full O'Nuts Corp. v NRP LLC I, 47 AD3d 189 [1st Dept 2007]; Hernandez v Bentinck, 17 AD3d 532 [2d Dept 2005]).

The trial court should have granted defendant's motion for a collectibility hearing following the verdict and award of damages. In a legal malpractice action, it is not until "plaintiff has proved the case within the case, including the value of the lost judgment, that the issue of collectibility may arise" (see Lindenman v Kreitzer, 7 AD3d 30, 34-35 [1st Dept 2004]). [*2]The value of the lost judgment was proved on June 25, 2009 when the trial court issued its finding on the apportionment of liability and the value of the damages, and, at that time, defendant's request for a hearing on the issue of noncollectibility should have been granted (id.). "



 

Consolidation or a joint trial are subject to judicial discretion.  Judges are said to be the master of their calendar, and the Appellate Division rarely steps in and rearranges it.  Here, inCounty of Westchester v White Plains Ave., LLC 2013 NY Slip Op 02212  Decided on April 3, 2013
Appellate Division, Second Department consolidation is denied as unwieldy.
 

""Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion" (Perini Corp. v WDF, Inc., 33 AD3d 605, 606; see Brown v Cope Bestway Express, Inc., 99 AD3d 746, 747-748; Alizio v Perpignano, 78 AD3d 1087, 1088; Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540). Here, although the action to recover damages for breach of contract (hereinafter Action No. 1) and the action, inter alia, to recover damages for legal malpractice (hereinafter Action No. 2) involve a common question of fact, Action No. 2 involves numerous additional allegations of professional negligence that are irrelevant to Action No. 1. Furthermore, the issues and applicable legal principles in the respective actions are so dissimilar, and the trial may prove so unwieldy, that consolidation will result in jury confusion and prejudice the respondents' right to a fair trial (see D'Abreau v American Bankers Ins. Co. of Fla., 261 AD2d 501, 502; 197 Merrick Rd. Corp. v 185 Merrick Rd. Assoc. Corp., 152 AD2d 551; Gouldsbury v Dan's Supreme Supermarket, Inc., 138 AD2d 675, 676; Brown v Brooklyn Union Gas Co., 137 AD2d 479, 480). Accordingly, the Supreme Court properly denied the appellants' motion pursuant to CPLR 602(a) to consolidate the actions."

Wiggins v Kopko   2013 NY Slip Op 02312  Decided on April 4, 2013   Appellate Division, Third Department  is a primer on attorney fees, contingent fees and what happens when the firm breaks up with the client and with itself.
 

"Kopko contends that plaintiff was discharged for cause due to alleged misconduct in his call to the client. However, without regard to whether the call constituted misconduct — which we do not decide — we agree with Supreme Court that the relevant inquiry is whether the partnership was discharged for cause. The client originally retained Wiggins & Masson — not plaintiff individually — and when Kopko later assumed primary responsibility for the malpractice litigation, he did so on behalf of the partnership or its predecessors, which continued to act as counsel of record in the malpractice action until Kopko was substituted shortly before the trial. Plaintiff was not counsel of record in the malpractice action, and so could not be discharged from that role (see generally Rodriguez v City of New York, 66 NY2d 825, 827-828 [1985])[FN3]. Further, we find no reason to disturb Supreme Court's determination that neither the partnership nor Wiggins & Masson was discharged for cause. Essentially, the client testified that he had discharged plaintiff because he was angry about plaintiff's "distasteful" telephone call. However, from the balance of the testimony, it is clear that the client was pleased with the prior services he had received from the partnership and its predecessors (see De Luccia v Village of Monroe, 180 AD2d at 899), specifically including those services rendered by Kopko prior to the substitution.

We therefore agree with Supreme Court that plaintiff is entitled to share in the fee obtained in the malpractice action on the partnership's behalf. However, we disagree with the further conclusion that the amount should be determined on the basis of quantum meruit. As against a client, a discharged attorney is entitled to a fee determined on a quantum meruit basis at the time of discharge, but different rules apply where, as here, the fee dispute is between attorneys (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-458 [1989]). In such circumstances, an outgoing attorney may choose to receive immediate compensation on a quantum meruit basis at discharge or to receive a share of a contingent fee based on a proportionate share of the work he or she performed; if no such election is made at the time of discharge, the attorney is presumed to have elected a contingent fee (see Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658-660 [1993]; Matter of Benjamin E. Setareh, P.C. v Cammarasana & Bilello Esqs., 35 AD3d 600, 601 [2006]; Connelly v Motor Veh. Acc. Indem. Corp., 292 AD2d 332, 333 [2002]; see also Buchta v Union-Endicott Cent. School Dist., 296 AD2d 688, 689 [2002]). Here, Supreme Court found that plaintiff elected quantum meruit compensation in a July 2011 memorandum of law. Even assuming that an election could be made in this manner, it would have been untimely, as the discharge had occurred more than a year earlier. Nothing in the record reveals that an election as to payment of fees was made at or near the time of discharge. Accordingly, as counsel of record, the partnership is presumed to have elected a contingent fee computed according to the proportionate share of work that was performed on its behalf and that of its predecessor firms before the June 2010 substitution of Kopko, to be divided as appropriate between the partners (see Grant v Heit, 10 AD3d 539, 540 [2004], lv denied 4 NY3d 701 [2004]).

Finally, we reject Kopko's contention that plaintiff and the partnership waived a fee by failing to petition the court for a lien pursuant to Judiciary Law § 475. Such a lien attaches by operation of law for the attorney of record when an action is commenced, even if that attorney is no longer counsel of record upon the action's conclusion (see Klein v Eubank, 87 NY2d 459, 462-463 [1996]; Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d at 657-658). An outgoing attorney's failure to seek statutory enforcement does not defeat his or her entitlement to [*4]a fee (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d at 458-459; Ruta & Soulios, LLP v Litman & Litman, P.C., 27 AD3d 236, 236 [2006]). "

New York has a very comprehensive attorney fee-dispute arbitration process, detailed under 22 NYCRR 137.  When does it apply, and how does a legal malpractice claim affect its application? 

Wenig Saltiel, LLP v Secord  2013 NY Slip Op 23104  Decided on March 29, 2013  Appellate Term, Second Department is a nicely detailed explanation.  Law firm was terminated with a letter stating that "defendants were discharging plaintiff "with cause" due to "acts of the firm relating to legal malpractice."  Law firm then sued former clients for fees.
 

"Plaintiff law firm commenced this action in September 2010 to recover legal fees from defendants, whom plaintiff had represented in a prior judicial proceeding. Plaintiff's verified complaint contains the allegation that part 137 of the Rules of the Chief Administrator of the Courts (22 NYCRR 137.0 et seq.; hereinafter part 137), governing the "Fee Dispute Resolution Program," is inapplicable because the action falls within one of the exceptions to the program, i.e., the claim involves "substantial legal questions, including professional malpractice or misconduct" (Rules of Chief Admin of Cts [22 NYCRR] § 137.1 [b] [3]). Prior to serving an answer, defendants moved to dismiss the complaint, alleging, in an affidavit in support of the motion, that they had signed an August 27, 2009 retainer agreement with plaintiff, and that they [*2]had terminated their relationship with plaintiff on or about July 20, 2010 "for cause and malpractice." They further alleged that the retainer agreement did not include a provision advising them of their right to arbitrate fee disputes; that prior to initiating this action, plaintiff had not sent them notice of their right to arbitrate, pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 137.6; and that plaintiff had not alleged in its complaint compliance with that provision, as required by Rules of the Chief Administrator of the Courts (22 NYCRR) § 137.6 (b). Defendants further contended that plaintiff had excessively billed and overcharged them for the services provided.

In opposition to the motion, plaintiff noted that defendants' letter dated July 20, 2010 stated that defendants were discharging plaintiff "with cause" due to "acts of the firm relating to legal malpractice," and that, therefore, because defendants' claim involved "substantial legal questions, including professional malpractice or misconduct" (Rules of Chief Admin of Cts [22 NYCRR] § 137.1 [b] [3]), this action was excepted from the application of part 137. By order dated August 10, 2011, the Civil Court denied defendants' motion to dismiss, finding that the issue of defendants' termination of plaintiff based on plaintiff's alleged legal malpractice was inextricably intertwined with the issue of the reasonableness of the legal fees sought by plaintiff. Accordingly, since defendants' claim of legal malpractice could not be considered in fee dispute arbitration, defendants' malpractice claim was a threshold issue to be determined in litigation before the fee dispute could be resolved. We affirm. "

""An attorney who institutes an action to recover a fee must allege in the complaint: (i) that the client received notice under this Part of the client's right to pursue arbitration and did not file a timely request for arbitration; or (ii) that the dispute is not otherwise covered by this Part" (Rules of Chief Admin of Cts [22 NYCRR] § 137.6 [b]). Plaintiff contends that the complaint in this case properly alleges that the fee dispute is not covered by part 137 because there are substantial legal questions involved regarding plaintiff's alleged legal malpractice."

"Where an attorney fails to comply with part 137's pleading requirements, the appropriate remedy will generally be the dismissal of the complaint without prejudice to the commencement of a new action (see Kerner & Kerner v Dunham, 46 AD3d 372 [2007]; Herrick v Lyon, 7 AD3d 571 [2004]; Paikin v Tsirelman, 266 AD2d 136 [1999]; see also Hobson-Williams v Jackson, 10 Misc 3d 58 [App Term, 2d & 11th Jud Dists 2005]). In the instant case, however, the dismissal of the complaint is not warranted at this juncture, as plaintiff did comply with the pleading requirements of part 137 by alleging that part 137 was inapplicable because the claim involves "substantial legal questions, including professional malpractice or misconduct" (Rules of Chief Admin of Cts [22 NYCRR] § 137.1 [b] [3]). Defendants' letter, stating that they were terminating the attorney-client relationship "for cause and malpractice," in conjunction with their affidavit in support of their motion to dismiss, which specifically references that letter, supports plaintiff's contention that its pleading did not run afoul of the requirements of part 137. Under these circumstances, and as defendants did not conclusively establish that plaintiff has no cause of action (cf. Lorin v 501 Second St., LLC, 2 Misc 3d 646, 649 [Civ Ct, Kings County 2003]), their motion was properly denied. "

The essentials of legal malpractice litigation, including standing and ascertainable pecuniary loss come up over and over in the Appellate Division cases. Young v Quatela  2013 NY Slip Op 02243
Decided on April 3, 2013   Appellate Division, Second Department is an example.  Plaintiff's father either suffered the loss or paid for it, and there is some question whether a pecuniary loss happened at all.  Result is is dismissal.
 

"The plaintiff commenced this action against the defendants, inter alia, to recover damages for legal malpractice. The defendants met their prima facie burden of establishing entitlement to judgment as a matter of law (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). As the plaintiff correctly concedes, nonpecuniary damages may not be recovered in an action alleging legal malpractice (see Dombrowski v Bulson, 19 NY3d 347, 349). Moreover, the plaintiff failed to raise a triable issue of fact as to whether he sustained any pecuniary damages, as the pecuniary losses described in the complaint were incurred by the plaintiff's father, who is not a party to the action (see Radcliffe v Hofstra Univ., 200 AD2d 562). The plaintiff's professed intention to repay his father for the expenses incurred on the plaintiff's behalf amount to a moral obligation, which does not support a viable claim for damages (see Coyne v Campbell, 11 NY2d 372, 375). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
SKELOS, J.P., LEVENTHAL, HALL and SGROI, JJ., concur. "

Breach of Fiduciary Duty has two separate statutes of limitation, six and three years.  Which applies in a legal malpractice case?  Generally the rule is that the choice of six or three years depends on the substantive remedy sought.  If it is for money damages the limit is three years.  If for equitable remedy, then the limit is six years.  Which is disgorgement of attorney fees in a legal malpractice setting?

Access Point Med., LLC v Mandell   2013 NY Slip Op 02208   Decided on April 2, 2013  Appellate Division, First Department    Saxe, J.  says that it is an economic remedy at law, and the limit is three years, regardless of earlier cases which held to the contrary.
"Plaintiffs rely on this Court's statement that "[d]isgorgement is an equitable remedy" (see J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 91 AD3d 226, 230 [1st Dept 2011], lv granted 19 NY3d 806 (2012). However, the disgorgement remedy referred to in J.P. Morgan Sec. and the cases it discusses is a fundamentally different than the "disgorgement" plaintiff seeks here. Claims for disgorgement most commonly arise in actions brought by the Securities and Exchange Commission in which the agency seeks an order directing a party to disgorge its ill-gotten gains for the recompense of injured investors or some entity other than the prosecuting agency (see J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 91 AD3d 226, 230 [1st Dept 2011], lv granted 19 NY3d 806 [2012] and cases discussed therein). Other types of government agencies or quasi-governmental entities also have sought the disgorgement of wrongfully obtained funds to third parties (see e.g. Morgan Stanley Capital Group Inc. v Pub. Util. Dist. No. 1 of Snohomish County, 554 US 527, 538 [2008]; Montana v Crow Tribe of Indians, 523 US 696 [1998]). Similarly, the equitable disgorgement relief sought by the plaintiff in IDT Corp. v Morgan Stanley (12 NY3d at 139) consisted of profits Morgan Stanley allegedly earned as investment banker for a third party through the third party's allegedly improper financial dealings with IDT; consequently, the disgorgement of those profits could not necessarily be accomplished simply by awarding IDT a judgment against Morgan Stanley in the amount of funds that it had paid out.

In contrast, plaintiffs' demand for the return of attorneys' fees they paid to defendants is, essentially, a claim for monetary damages. The calculated use of the term "disgorgement" instead of other equally applicable terms such as repayment, recoupment, refund, or reimbursement, should not be permitted to distort the nature of the claim so as to expand the applicable limitations period from three years to six. We cannot allow a purely semantic distinction to control the application of the statute of limitations.

Nor do we accept plaintiffs' alternative argument that the breach of fiduciary duty claim is essentially a fraud claim, to which the six-year statute would be applicable. The amended complaint is based on an alleged conflict of interest and allegedly impaired professional judgment, and it does not allege the elements of fraud (see Buller v Giorno, 57 AD3d 216 [1st Dept 2008]). The failure to disclose a conflict of interest does not transform a breach of fiduciary duty into a fraud.

Another new contention plaintiffs raise on appeal is that the statute of limitations must be treated as tolled, not only pursuant to the continuous representation doctrine, but also under the fiduciary tolling rule, also known as the open repudiation rule.

As the motion court found, no facts are alleged that would justify the application of the continuous representation doctrine to toll the statute of limitations.

Nor, we find, is the fiduciary tolling rule, or open repudiation rule, applicable to plaintiffs' breach of fiduciary duty claims. Under that rule, the statute of limitations on claims against a fiduciary for breach of its duty is tolled until such time as the fiduciary openly repudiates the role (see Matter of Barabash, 31 NY2d 76, 80 [1972]). The cases in which this [*4]rule arose, and the cases applying it, reflect that the rule arose to protect beneficiaries in the event of breaches of duty by fiduciaries such as estate administrators (see Barabash, 31 NY2d at 80), trustees (see Matter of Ashheim, 111 App Div 176 [1906], affd 185 NY 609 [1st Dept 1906]), corporate officers (see Westchester Religious Inst. v Kamerman, 262 AD2d 131 [1st Dept 1999]), and receivers (see Golden Pac. Bancorp v Federal Deposit Ins. Corp., 273 F3d 509 [2d Cir 2001]), that is, in circumstances in which the beneficiaries would otherwise have no reason to know that the fiduciary was no longer acting in that capacity. In those circumstances, it is appropriate to toll the limitations period until the beneficiary has reason to know that the fiduciary relationship has unequivocally ended.

However, where one party's fiduciary obligations to another arose out of their attorney-client relationship, and would not have existed without that relationship, there is no need for an open repudiation of the fiduciary's role, because the attorney's fiduciary duty to the client necessarily ends when the representation ends. Plaintiffs' causes of action alleging breach of fiduciary duty specifically assert that defendants' fiduciary duty to them arose out of their attorney-client relationship with them, thus, their fiduciary relationship ended when their attorney-client relationship ended, without any need for a declaration to that effect.

We recognize that in 212 Inv. Corp. v Kaplan (44 AD3d 332 [1st Dept 2007]), this Court accepted the premise, framed by the parties, that the open repudiation doctrine applies to equitable claims brought by clients against their attorneys, although not to claims for money damages. That decision states, without elaboration, that "the open repudiation' doctrine tolls the statute of limitations on the [client's] unjust enrichment claim [against the lawyer], which seeks equitable relief" (id. at 334, citing Matter of Kaszirer v Kaszirer, 286 AD2d 598, 599 [1st Dept 2001], and Westchester Religious Inst. v Kamerman, 262 AD2d 131 [1st Dept 1999]). However, we observe that neither of the cited cases concerned claims against attorneys for breach of their fiduciary duty to their clients arising out of the attorney-client relationship. Matter of Kaszirer concerned a claim by a trust beneficiary against a trustee, and Westchester Religious Inst. involved a claim by a nonprofit corporation against its officers for breach of their fiduciary duty; both of those claims form proper bases for application of the open repudiation rule. And unlike this case, in 212 Inv. Corp., neither party questioned the applicability of the fiduciary tolling rule to an attorney whose fiduciary duty arose out of the attorney-client relationship, so this Court was not required to decide that issue. Presented with the issue now, we reject the application of the fiduciary tolling rule to claims by a client against an attorney for breach of the fiduciary duty arising out of the attorney-client relationship, at least in the absence of a true entitlement to equitable relief. "

We wonder whether legal malpractice is treated differently than all other law suits?  Fielding v Kupferman  2013 NY Slip Op 02008   Decided on March 26, 2013   Appellate Division, First Department raises the question once again.  Compare this case to a garden or varietal slip and fall.  Example:  plaintiff trips over a defective step and breaks his leg.  Would the Appellate Division then discuss whether breaking a bone was better than what might have happened, were plaintiff to fall down an entire flight of stairs and break his neck?  We believe that it would not.
 

Nevertheless, this is what happens regularly in a legal malpractice case.  Take Fielding as an example.  "Defendants established their entitlement to judgment as a matter of law in this action alleging legal malpractice. Defendants submitted evidence showing that the divorce settlement, in which plaintiff achieved his goal of retaining the parties' marital residence, was advantageous to plaintiff, and resulted in his receiving consideration that more than compensated him for the allegedly unforeseen tax consequences of liquidating his Keogh account (see e.g. Kluczka v Lecci, 63 AD3d 796, 798 [2d Dept 2009]). Defendants also submitted evidence demonstrating that the subject tax consequences were discussed with plaintiff during the course of the settlement negotiations.

In opposition, plaintiff failed to raise a triable issue of fact. His argument that if he had been properly advised on the tax consequences, he would have reached a better settlement or outcome after trial, is speculative (see Klucka at 798). Plaintiff failed to take into account the benefits he received in the actual settlement, including buying out his wife's share of the marital residence based on an outdated appraisal that assigned a value that was significantly lower than the actual value at the time the agreement was executed. Moreover, plaintiff failed to provide proof of any ascertainable actual damages sustained as a result of the alleged negligence (see Lavanant v General Acc. Ins. Co. of Am., 212 AD2d 450 [1st Dept 1995]). [*2]

Under the circumstances presented, plaintiff's claim for disgorgement of legal fees already paid was properly dismissed."
 

we're proud to announce that our article on the Attorney Judgment Rule was published by the New York Law Journal today.

"Medicine and law have ancient parallel histories. Each practices self-regulation, and each has developed deep and extensive internal rules of professional conduct. Both have a tentative claim as one of the world's oldest professions. Each requires extensive education and testing to join a prehistoric and socially revered cadre. Both require an extensive apprenticeship before acceptance into the guild.

Beyond the obvious ancient quality of the professions, there is a similar intellectual bias evident. Both claim that their decision-making apparatus is unique, internally regulated and virtually unassailable.

Medicine and law share a concept unknown to other professions: the "judgment rule." In medicine, it is aptly summed up in the well-known medical aphorism originally attributed to Armand Trousseau (1801-1867): "Medicine is an art and not a science." For lawyers, it was most forcefully stated by the Court of Appeals in Rosner v. Paley, 65 NY2d 736 (1985). A "mere error of judgment" need not rise to the level of malpractice. When several other alternatives might have been pursued, "selection of one among several reasonable courses of action does not constitute malpractice." For this concept the Court of Appeals looked back to 1897.

Byrnes v. Palmer, 18 AD 1 (2d Dept. 1897), was a Second Department case decided by Judge Edgar M. Cullen, later chief justice of the Court of Appeals, more than 100 years ago. In a conveyancing case the court held that "It is undoubtedly true that an attorney is only bound to exercise the ordinary reasonable skill and knowledge of his profession, and is not liable for every error of judgment or opinion as to the law." Byrnes at 5.

Byrnes itself looked further backward to Montriou v. Jefferys (2 Car. & P. 113 (1825)). There, Chief Judge Charles Abbot, 1st Baron Tenterden of England, stated that "No attorney is bound to know all of the law; God forbid that it should be imagined that an attorney, or a counsel, or even a judge, is bound to know all the law, or that an attorney is to lose his fair recompense on account of an error, being such an error as a cautions man might fall into." "In a litigation a lawyer is well warranted in taking chances. To some extent litigation is a game of chance. The conduct of a lawsuit involves questions of judgment and discretion as to which even the most distinguished members of the profession may differ. They often present subtle and doubtful questions of law. If in such cases a lawyer errs on a question not elementary or conclusively settled by authority, that error is one of judgment for which he is not liable."
 

Plaintiff is the administratrix of decedent's estate.  This is a very sad story.  Decedent entered United Presbyterian Residence after a stroke, and was the victim of a most avoidable problem:  pressure ulcer, or more commonly, a bedsore.  It eventually, and after much suffering, killed her.  Her family hired an attorney to sue the residence, and the attorney failed to start the case.  Later the attorney was disbarred when he was convicted of a felony.

Corsiatto v Maddalone  2013 NY Slip Op 30553(U)  March 13, 2013  Supreme Court, Suffolk County  Docket Number: 2009-14305  Judge: John J.J. Jones Jr is mostly the story of bad medical care.  It was an inquest, so we guess that there was no legal malpractice insurance.  It may have been a Pyrrhic or a technical victory.

"The medical record indicates that although a wound care specialist was ordered, the decedent was never seen. No order was written for culture of the wound at the decubitus site; no orders were made to obtain blood cultures, both departures from good and accepted medical standards. According to Knieste, the poor management of the decedent’s Stage IV pressure sore was contrary to good and accepted medical practice and a contributing cause of the formation of a Stage IV pressure ulcer, the decedent’s continued suffering, and death. The decedent’s discharge note contained a diagnosis of sepsis."

"The issue of causation has been resolved in the plaintiffs favor due to the defendant’s default, that is, it is established that the plaintiff would have prevailed in the underlying action against UPR. However, it is not established that the plaintiff would have prevailed on all three claims: medical malpractice, negligence and the statutory claim under Public Health Law ij 2801 - d(1). At least one court has addressed the distinction between medical malpractice and negligence claims on the one hand, and a statutory cause of action under the Public Health Law on the other. See Butler v. Shorefront Jewish Geriatric Center, 33 Misc.3d 686, 693, 932 N.Y.S.2d 672 (Kings Sup. Ct. 2011)."

"The court is obliged to award an amount in compensatory damages that does not materially deviate from what would be considered “reasonable compensation” under the Circumstances given the plaintiffs injuries (CPLR 5501 (c); Slzurgan by Shurgan v. Tedesco, 179 A.D.2d 805, 578 N.Y.S.2d 658 [2d Dept.19921). Although the plaintiff assented to conduct the inquest “on papers”, the court has not been provided with any comparable awards or verdicts for similar injuries of comparable duration to assist the court’s determination of what can be considered reasonable compensation for the decedent’s pain and suffering. The court has found several cases where patients have endured pressure sores similar to that endured by the decedent. For example, in Parson v. Interfaith Medical Center, a jury verdict of $1,000,000 was reduced to $400,000 to compensate the plaintiffs decedent for the mismanagement of her numerous bedsores that were a cause of her death (Parson v. Interfaith Medical Center, 267 A.D.2d 367, 700 N.Y.S.2d 224 [2d Dept. 1999).

Client has a really horrible situation in her apartment.  First there is a flood of raw sewerage. She hires law firm 1 to sue.  They commence an action.  Then, she has a water flood from the neighbor upstairs.  She hires law firm 2 to handle that case.  They commence an action.  Law firm 2 settles the case for a big number.  A release is signed, and there the trouble begins.

in Strougo & Blum, Esqs. v Zalman & Schnurman, Esqs, 2013 NY Slip Op 30559(U) March 15, 2013Supreme Court, New York County  Docket Number: 603665/09  Judge: Eileen A. Rakower has to decide what happens after the release in case 2 ends case 1.  Was the law firm in case 1 injured by the acts of law firm 2?

"Defendant states that, in or about December 2006, a mediation was held in the 2004 Hixon Action before JAMS, the purpose of which was to resolve the claims Ms. Hixon asserted in the 2004 Hixon Action. As a result of the mediation, a settlement agreement was reached, whereby Ms. Hixon agreed to settle her action for payment in the amount of $1,450,000. On December 7,2006, Ms. Hixon executed a General Release in the 2004 Hixon Action, which released 12-14, Goodman, Inc., and the Adams’ from:
all actions, causes of action, suits . . . specifically with respect to damages that RELEASOR  sustained which were the subject of a lawsuit pending in the Supreme Court. . .

The defendants in the 2002 Hixon Action thereafter moved to amend their answer to add the release as an affirmative defense, and to dismiss the 2002 Hixon Action on collateral estoppel and res judicata grounds. By Order entered August 12, 2009, Judge Jose A. Padilla, Jr. granted all aspects of the motion and dismissed as to all defendants2 Thereafter, plaintiff brought the instant action against Defendant alleging that Defendant fraudulently induced Ms. Hixon to sign the General Release by reassuring her that it would not effect the 2002 Hixon Action. As such, plaintiff
alleges, Defendant tortiously interfered with the retainer agreement between plaintiff and Ms. Hixon, and alleges civil conspiracy with the former co-defendants by way of interference with plaintiffs retainer agreement.

“Tortious interference with contract requires the existence of a valid contract between the plaintiff and a third party, defendant’s knowledge of that contract, defendant’s intentional procurement of the third-party‘s breach of the contract without justification,’ actual breach of the contract, and damages resulting therefkom” (Havana Cent. NY2 LLC v. Lunney ’s Pub, Inc., 2007 N Y Slip Op 10509, * 5 [ 1 st Dept. 2007), citing Lama Holding Co, v Smith Barney, 88 N.Y.2d 413,424 [ 19961).
A retainer agreement between an attorney and a client is terminable at will because the client has an “absolute right . . to terminate the attorney client relationship at any time without cause . . .” (Demov, Morris, Levin & Shein v. Glantz, 53 NY2d 553,556-557[ 198 13). When alleging tortious interference with a contract that is terminable at will, plaintiff must also show that the alleged interference was achieved through “wrongful means,” such as fraudulent misrepresentations (see
Guard-Life Corporation v, S. Parker Hardware Manufacturing Corp., 50 NY2d 183).

Defendant has made a prima facie showing of entitlement of summary judgment. Defendant submits the affidavit of Benjamin Zalman. Mr. Zalman states that the 2006 General Release which Ms. Hixon executed expressly states that the claims being released are those with respect to the 2004 Hixon Action, not the 2002 Hixon Action. Mr. Zalman states that at all times Defendant represented to Ms. Hixon that her execution of the Release would only serve to release the defendants from the 2004 Hixon Action and that at no time did Defendant intend to defraud
Defendant or interfere with the retainer agreement. In opposition, Plaintiff fails to raise a triable issue of fact. Plaintiff submits only the affirmation of Robert I. Strougo, which annexes previous orders of the Court on former defendants’ motions to dismiss, a copy of the 2006 General Release, Judge Padilla’s 2009 decision dismissing the 2002 Hixon Action, and contends without any merit that these orders preclude summary judgment. Nor does Plaintiff contend that
Defendant’s motion is premature or that Plaintiff needs to conduct discovery in order
to allow it to obtain facts to oppose Defendant’s motion."

Jurisdiction in US District Court is a serious matter, and may be based (in general)  upon diversity or upon federal question jurisdiction.  When a legal malpractice case is based upon some uniquely federal issue, ERISA or a FDA issue or a patent issue, does that allow the action to be brought in District Court?  We've argued in the past that mere incantation of the word "patent" does not allow a defendant to remove the case to District Court.  In Gunn v. Minton, 133 S.Ct. 1059 (Feb. 20, 2013) the US Supreme Court agreed. 

Well, perhaps it did not agree with us, but an article in today's NYLJ talks about the decision.  Scheinfeld and Bagley write that "The Supreme Court, however, held unanimously in Gunn, that state courts indeed may hear legal malpractice claims involving federal patent questions, reversing the Texas Supreme Court's decision that federal courts had exclusive jurisdiction." 

"Gunn originated in Texas state court, as the fallout from an underlying patent litigation in which respondent Vernon Minton sued Nasdaq for patent infringement in the Eastern District of Texas. That action was dismissed when the court there invalidated the patent in suit for violating the on-sale bar of 35 U.S.C. 102(b). Allegedly, the lawyers representing Minton neglected to assert the experimental use exception to the on-sale bar, and the decision was upheld on appeal.

Minton responded by filing a malpractice suit in Texas state court, alleging that the lawyer's negligent failure to timely raise the experimental use exception to the on-sale bar cost him the opportunity of winning his federal patent infringement litigation. The trial court dismissed the action for lack of evidence, and Minton appealed to the state appellate court in Fort Worth. While the appeal was pending, the U.S. Court of Appeals for the Federal Circuit issued its opinions in Air Measurement v. Akin Gump1 and Immunocept v. Fulbright,2 holding that when a state-law malpractice case arises from a substantive issue of patent law, federal courts have jurisdiction over such claims. Minton then moved to dismiss his own case for lack of subject matter jurisdiction, hoping to re-file the malpractice suit in federal court. The appeals court was unmoved, however, and instead affirmed the trial court's ruling dismissing the suit with prejudice.

On appeal to the Texas Supreme Court, Minton prevailed: The court held that, purportedly under U.S. Supreme Court precedent, Minton's malpractice case belonged exclusively in federal court, and granted the motion to dismiss. The court agreed that because his legal malpractice claim was based on an alleged error in a patent case, it "aris[es] under" federal patent law for purposes of 28 U.S.C. §1338(a). And because, under §1338(a), no "state court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents," the Texas court lacked subject matter jurisdiction to decide the case.
 

The Supreme Court disagreed, relying on its precedent set in Grable & Sons Metal Products v. Darve Engineering & Mfg., 545 U.S. 308, 314 (2005):

Does the "state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities?" Grable, 545 U.S., at 314, 125 S.Ct. 2363. That is, federal jurisdiction over a state law claim will lie if a federal issue is (1) necessarily raided, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Where all four of these requirements are met we held, jurisdiction is proper because there is a "serious federal interest in claiming the advantages thought to be inherent in a federal forum," which can be vindicated without disrupting Congress's intended division of labor between state and federal courts.

Id., at 313-314, 125 S.Ct. 2363.

Applying Grable's inquiry, the Supreme Court found that this particular legal malpractice claim does not "arise" under federal patent law and, indeed, state legal malpractice claims based on underlying patent matters will "rarely, if ever," arise under federal patent law for purposes of 1338(a).

In Minton's case, although a federal patent question (i.e., whether the experimental use exception to an on-sale bar factually applied) was "necessarily raised," and "actually disputed," the federal issue, the court concluded, was "not substantial in the relevant sense:"

As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim "necessarily raises[s]" a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole. [emphasis in original]"
 

Hand in hand with legal malpractice cases are attorney fee cases.  We've commented that attorney fee disputes are of  biblical proportion, and have existed as long.  Today's New York Law Journal reports that "DLA Piper Emails Reveal Firm Overbilled, Former Client Says"

In an article written by Christine Simmons, she reports that internal e-mails from DLA Piper are being used in an attorney fee dispute, and are said to show intentional and gleeful churning of a bankruptcy representation bill.  "According to court papers, Thomson replied to Eisenegger and Johnson: "What was our estimate? But Tim [Walsh] brought Vince [Roldan] [two other DLA Piper attorneys working on POA] in to work on the objection for whatever reason, and now Vince has random people working full time on random research projects in standard 'churn that bill, baby!' mode. That bill shall know no limits."

Thomson, who no longer works at DLA Piper, could not be reached for comment.

Roldan was a senior associate at DLA Piper who now practices at Vandenberg & Feliu, according to the firm's website. He did not return a call for comment.

Eisenegger, Johnson and Walsh are now all partners at McDermott Will & Emery. They did not return calls for comment. McDermott spokesman Christopher Rieck declined to comment.

Victor claims in his papers that Eisenegger, Thomson and Johnson continue the email thread, "with each joking about how many attorneys were over-staffed on the POA file and how little work those attorneys actually accomplished."

According to the attached exhibits, Thomson writes to Eisenegger and Johnson, "DLA seems to love to low ball the bills and with the number of bodies being thrown at this thing, it's going to stay stupidly high and with the absurd litigation POA has been in for years, it does have lots of wrinkles."

Johnson allegedly replied: "Didn't you use 3 associates to prepare for a first day hearing where you filed 3 documents?"

Thomson allegedly responded to Johnson and Eisenegger, "And it took all of them 4 days to write those motions while I did cash collateral and talked to the client and learned the facts. Perhaps if we paid more money we'd have more skilled associates."

According to the court exhibits, Johnson also allegedly said, "It's a Thomson project, he goes full time on whatever debtor case he has running. Full time, 2 days a week.""

It's rare that the Appellate Division looks back and says that its own decisions were "simply wrong."  Here, in Goodwin v Pretorius  2013 NY Slip Op 01931   March 22, 2013  Appellate Division, Fourth Department   Scudder, P.J., the Court does it twice.
 

"First, as defendants correctly conceded at oral argument of this appeal, General Municipal Law § 50-e does not require service of a notice of claim on the Employee Defendants as a condition precedent to the commencement of this action. ECMCC is a public benefit corporation (see Public Authorities Law § 3628 et seq.) and, therefore, it is undisputed that the provisions of General Municipal Law § 50-e apply (see Public Authorities Law § 3641 [1] [a]; see e.g. Stanfield v Nohejl, 182 AD2d 1138, 1138). General Municipal Law § 50-e (1) (b) provides, in pertinent part, that

"[s]ervice of the notice of claim upon an . . . employee of a public corporation shall not be a condition precedent to the commencement of an action or special proceeding against such person.

We thus note that, to the extent that our prior decision in Rew v County of Niagara (73 AD3d 1463, 1464) suggests that service of a notice of claim upon an employee of a public corporation is a condition precedent to commencement of the action against such employee, that decision is no longer to be followed.

Second, defendants contend that, although service of the notice of claim on the Employee Defendants was not required, plaintiff was nevertheless required to name those individual defendants in the notice of claim as a condition precedent to the commencement of an action against them. Despite precedent supporting that contention, we agree with Supreme Court that there is no such requirement.

While stare decisis is the preferred course, that doctrine "does not enjoin departure from precedent or preclude the overruling of earlier decisions" (Matter of Simonson v Cahn, 27 NY2d 1, 3; see Dufel v Green, 198 AD2d 640, 640-641, affd 84 NY2d 795).Although "[p]recedents involving statutory interpretation are entitled to great stability" (People v Hobson, 39 NY2d 479, 489; see Matter of Chalachan v City of Binghamton, 81 AD2d 973, 974, affd 55 NY2d 989), we conclude that the courts have misapplied or misunderstood the law in creating, by judicial fiat, a requirement for notices of claim that goes beyond those requirements set forth in the statute. If the legislature had intended that there be a requirement that the individual employees be named in the notices of claim, it could easily have created such a requirement. Indeed, the absence of such a requirement has previously been noted (see Verponi v City of New York, 31 Misc 3d 1230 [A], 2011 NY Slip Op 50908 [U], *5). It is a well-settled rule of statutory construction that, "where as here the statute describes the particular situations in which it is to apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded' " (Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208-209, quoting McKinney's Cons Laws of NY, Book 1, Statutes, § 240). Inasmuch as the notice of claim requirements are "in derogation of [a] plaintiff's common-law rights," the statute creating such a requirement should be strictly construed in the plaintiff's favor (Sandak, 308 NY at 230). "

Plaintiff sues for negligence in the preparation, filing and work on a trade dress application, and is then sued for fees.  Settlement of the fee dispute ensued.  Was this settlement of all claims?  Of interest is the AD's comment in Pure Power Boot Camp, Inc. v Fross Zelnick Lehrman & Zissu, P.C.   2013 NY Slip Op 01920   Decided on March 21, 2013   Appellate Division, First Department 
 that the lack of a release is not dispositive of whether there is a release.

"Defendant failed to establish that plaintiff's legal malpractice action is barred by an agreement, purportedly entered into in connection with the settlement of a legal fee dispute, to release the firm from all claims. The parties agreed to settle their legal fee dispute for $5,000, and $5,000 was paid to defendant. At issue is the scope of the settlement and whether the settlement was intended to include a general release of all claims against defendant. While the absence of an executed general release is not necessarily dispositive, defendant failed to establish that the parties agreed to execute the release and intended to be bound by it (see Kowalchuk v Stroup, 61 AD3d 118, 121 [1st Dept 2009]). Defendant also failed to establish that it was not negligent in preparing, filing and amending a trade dress application, since the mere fact that the [*2]application was accepted by the U.S. Patent and Trademark Office is not evidence of a lack of negligence. "

This must have been a highly contentious legal malpractice  case, with the Court showing its displeasure to both attorneys.  A sanction of $10,000 on defendant pro-se attorney is unusual; a sanction on both sides even more so

Selletti v Liotti    2013 NY Slip Op 01816   Decided on March 20, 2013   Appellate Division, Second Department ended with defendant being given a $ 10,000 sanction, and with plaintiff's attorney being given a $ 2500 sanction.  It ended with $10,000 on each.
 

"ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the defendant's motion which was pursuant to 22 NYCRR 130-1.1 to impose a sanction upon the nonparty Jeffrey Levitt only to the extent of directing Jeffrey Levitt to pay the sum of $2,500 to the Lawyers' Fund for Client Protection, and substituting therefor a provision granting that branch of the defendant's motion to the extent of directing Jeffrey Levitt to pay the sum of $10,000 to the Lawyers' Fund for Client Protection; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The Supreme Court providently exercised its discretion in granting the plaintiff's cross motion pursuant to 22 NYCRR 130-1.1 to impose a sanction upon the defendant in the sum of $10,000 (see 22 NYCRR 130-1.1[a], [c]; Grossman v New York Life Ins. Co., 90 AD3d 990, 992). Contrary to the defendant's contention, since the plaintiff expressly requested the subject relief in [*2]his cross motion papers, and the defendant was afforded an opportunity to be heard and to oppose the cross motion, a hearing was not required (see 22 NYCRR 130-1.1[d]; Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411, 413 n; Matter of Nazario v Ciafone, 65 AD3d 1240, 1241). Although the Supreme Court did not set forth "the reasons why the court found the amount . . . imposed to be appropriate" (22 NYCRR 130-1.2), we find that the sum imposed upon the defendant was appropriate in light of his conduct (see Schwab v Phillips, 78 AD3d 1036, 1037; see also Bernadette Panzella, P.C. v DeSantis, 36 AD3d 734, 736).

However, the Supreme Court improvidently exercised its discretion in granting that branch of the defendant's motion which was pursuant to 22 NYCRR 130-1.1 to impose a sanction upon the plaintiff's attorney, the nonparty Jeffrey Levitt, only to the extent of directing Levitt to pay the sum of $2,500 to the Lawyers' Fund for Client Protection. Under the circumstances of this case, the court should have granted that branch of the defendant's motion to the extent of directing Levitt to pay the sum of $10,000 to the Lawyers' Fund for Client Protection (see generally Commissioners of State Ins. Fund v Kernell, 91 AD3d 811). "

Nichols v Curtis  2013 NY Slip Op 01776  Decided on March 19, 2013  Appellate Division, First Department  is the story of how a legal malpractice case went awry and then how the legal malpractice case against the legal malpractice defendants went awry.  Curtis & Associates, and an earlier Curtis & Riess-Curtis PC were early adopters in the legal malpractice field.  In this case, their legal malpractice case ended badly and they were sued. 
 

"In this action, plaintiff claims her former attorneys committed malpractice, breached their fiduciary duty, and engaged in fraud, coercion and defamation in prosecuting a malpractice action against the attorneys who represented her in an action in 1988 against nonparty Morris Sales, Inc. Notwithstanding the court's characterization of their motion, defendants moved to dismiss the fifth through ninth causes of action only. Curtis and C & A, against whom the first four causes of action are asserted, did not move to dismiss those causes of action, and, even though the court found them to have duplicated the fifth through ninth causes of action, the court should not have dismissed them sua sponte (see e.g. Purvi Enters., LLC v City of New York, 62 AD3d 508, 509 [1st Dept 2009]; West Washington Cut Meat Ctr., Inc. v Solomon, 260 App Div 741, 742 [1st Dept 1940]). Reinstatement of the first four causes of action is without prejudice to a motion for dismissal in view of the analysis set forth below.

Plaintiff's fraud claim is based on defendants' failure to tell her that C & R-C had been dissolved; she contends that, had she known that, she would not have retained C & R-C in 1998 and/or would not have allowed defendants to continue representing her until 2003. However, where a dissolved "corporation carries on its affairs and exercises corporate powers as before, it is a de facto corporation ... and ordinarily no one but the state may question its corporate existence" (Garzo v Maid of Mist Steamboat Co., 303 NY 516, 524 [1952]). Thus, defendants' failure to tell plaintiff that C & R-C had been administratively dissolved and subsequently reinstated was not a material omission (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]; see also Global Mins. & Metals Corp. v Holme, 35 AD3d 93, 99 [1st Dept 2006] [materiality can be disposed of summarily], lv denied 8 NY3d 804 [2007]). Furthermore, plaintiff failed to show that she was injured by the alleged fraud (see Lama, 88 NY2d at 421). There is no indication that, had C & R-C not been dissolved, it would have provided better legal services to plaintiff. Plaintiff's request for at least $2 million in damages has no relationship to the $87,000 in fees that she paid defendants.

Plaintiff contends that the statute of limitations on her breach of fiduciary duty claims should be six years instead of three because the claims are based on fraud (see e.g. IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009]). However, since, as indicated, the complaint fails to state a cause of action for fraud, the statute of limitations for the breach of fiduciary duty claims, which seek money damages rather than equitable relief, is three years (see Kaufman v Cohen, 307 AD2d 113, 119 [1st Dept 2003]); thus, those claims are time barred.

We also reject plaintiff's contention that defendants should be equitably estopped by their fraud from asserting the three-year statute of limitations defense to the malpractice, breach of contract (this claim is duplicative of the malpractice claim), and conversion claims. First, the complaint does not state a cause of action for fraud. Second, the failure to disclose that underlies plaintiff's equitable estoppel argument is also the basis for her fraud claim (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 491 [2007]; see also Corsello v Verizon N.Y., Inc., 18 NY3d 777, 789 [2012]). Third, plaintiff fails to allege specific actions by defendants that kept her from timely bringing suit (see Putter v North Shore Univ. Hosp., 7 NY3d 548, 553 [2006]); mere failure to disclose wrongdoing is not sufficient (see Ross, 8 NY3d at 491; see also Zumpano v [*3]Quinn, 6 NY3d 666, 675 [2006]). Fourth, with respect to the malpractice and breach of contract claims, the complaint admits that plaintiff realized by November 2003 that defendants' representation of her had fallen below the skill and knowledge commonly required of members of the legal profession (see Putter, 7 NY3d at 553; Zumpano, 6 NY3d at 674). "

Gardner v Leitgeb & Vitelli, LLP ;2012 NY Slip Op 50282(U) ;Decided on February 17, 2012 ;Supreme Court, Suffolk County ;Emerson, J. presents an interesting story of parents v. children, with professionals in the middle. More interesting, fraud, associations with organized crime, and a pizza location are all added in the mix of ingredients.
 

"This matter involves a dispute between the plaintiffs, Robert and Carmela Gardner, and their son, the defendant James Gardner, over the ownership of the corporate plaintiff, CJEFA Pizza, Inc.("CJEFA"), which operated an Italian restaurant and pizzeria in Fort Salonga, New York. The plaintiffs claim that they were the sole shareholders and officers of CJEFA from 1984 until its dissolution in 2009. The defendant James Gardner claims that he became the sole shareholder and president of CJEFA in 1997 and that he managed the restaurant until the last quarter of 2001, when his parents took over the business illegally. The plaintiffs agree that James was the manager of the business at one time until that relationship was terminated in November 2001 and he no longer had any authority to conduct CJEFA's affairs. "

"Robert and Carmela commenced this action against James and the Vitelli defendants on or about September 30, 2004. The gravamen of the complaint is that the plaintiffs were damaged by the Vitelli defendants' failure to prepare and file CJEFA's federal and state income tax returns for the years 2001 and 2002 and by the Vitelli defendants' returning CJEFA's corporate documents to James. The plaintiffs allege that, as a result, they incurred fines and penalties because they were unable to prepare and file CJEFA's tax returns in subsequent years and because they were unable to properly defend against and cooperate with the sales-tax audit by the [*3]New York State Department of Taxation. The complaint contains causes of action for malpractice, breach of contract, and breach of fiduciary duty against the Vitelli defendants and for conversion against both James and the Vitelli defendants."

"Each of the parties has produced copies of documents, including stock certificates, that purports to prove that party as the lawful owner of the corporation. However, the parties have disputed the authenticity of the produced documents, and the proceedings are rife with allegations of fraud, forgery and associations with organized crime. It is impossible for the Court at this time to determine the authenticity of the documents and the veracity of the various affidavits submitted, which are wildly divergent in their recitation of the facts."
 

"The first and second causes of action for malpractice and breach of contract, respectively, are based on the Vitelli defendants' purported failure to prepare and file CJEFA's federal and state income tax returns for the years 2001 and 2002. The unambiguous written engagement letters between CJEFA and the Vitelli defendants required the Vitelli defendants to prepare federal and state income tax returns for CJEFA for the year 2001. There was no agreement to prepare CJEFA's federal or state income tax return for the year 2002, nor was there an agreement to file any tax returns. The plaintiffs contend that the Vitelli defendants continued to perform accounting work on the sales-and-use tax returns through mid-2003 and that there was an oral agreement between Robert and the Vitelli defendants to file the income tax returns for the year 2001. The clear engagement letters govern the terms of the parties' relationship and, as a matter of law, cannot be altered by alleged parol or extrinsic evidence (see, Italia Imports, Inc. v Weisberg & Lesk, 220 AD2d 226, 227). It is undisputed that the Vitelli defendants prepared CJEFA's federal and state income tax returns for the year 2001. They were under no obligation to file those returns or to prepare income tax returns for any other year. Unlike their obligation to prepare CJEFA's sales-and-use tax returns, their obligation to prepare income tax returns was limited to one year and was not open-ended. Moreover, it is the taxpayer's nondelegable duty to file timely tax returns (see, Penner v Hoffberg Oberfest Burger & Burger, 303 AD2d 249). Accordingly, the first and second causes of action are dismissed."
 

A non-party deponent, served with a subpoena, arrives for a deposition.  That non-party  wisely brings an attorney.  What may the attorney do at the deposition?  It depends where the case is taking place.  In the 4th Department (22 Counties, roughly half the state?) the attorney will be permitted no objections and may not speak.  Sciara v Surgical Assoc. of W. N.Y., P.C.   2013 NY Slip Op 01741  Released on March 15, 2013   Appellate Division, Fourth Department  hews to the line first set in Thompson v. Mather, 70 AD3d 1436 (4th Dept., 2010).

"As we stated in Thompson, "counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pretrial deposition. CPLR 3113 (c) provides that the examination and cross-examination of deposition witnesses shall proceed as permitted in the trial of actions in open court' " (id. [emphasis added]), and it is axiomatic that counsel for a nonparty witness is not permitted to object or otherwise participate in a trial (see e.g. id.). We recognize that 22 NYCRR 221.2 and 221.3 may be viewed as being in conflict with CPLR 3113 (c) inasmuch as sections 221.2 and 221.3 provide that an "attorney" may not interrupt a deposition except in specified circumstances. Nevertheless, it is well established that, in the event of a conflict between a statute and a regulation, the statute controls (see Matter of Hellner v Board of Educ. of Wilson Cent. School Dist., 78 AD3d 1649, 1651).

We also recognize the practical difficulties that may arise in connection with a nonparty deposition, which also have been the subject of legal commentaries (see e.g. 232 Siegel's Practice Review, Objections by Nonparty Witness? at 4 [Apr. 2011]; Patrick M. Connors, Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3313:7, 2013 Pocket Part at 31-33). However, we decline to depart from our conclusion in Thompson (70 AD3d at 1438) that the express language of CPLR 3113 (c) prohibits the participation of the attorney for a nonparty witness during the deposition of his or her client. We further note, however, that the nonparty has the right to seek a protective order (see CPLR 3103 [a]), if necessary. "

A lively dissenting opinion (2 judges) ensures that we will see this case in the Court of Appeals.

It as common as rain.  Law firms hire clerical or service organizations to do things for the law firm.  File papers, serve parties, perfect a security lien and file the UCC-1.  What happens to the law firm, and the client, when things go wrong.  Here, in Gutarts v Fox  2013 NY Slip Op 01492  Decided on March 12, 2013  Appellate Division, First Department  things go wrong, and no one has a good remedy.

"Defendant L.T. Service Corporation (LT) was engaged by defendant Fox and his firm, O'Donnell & Fox (the Fox defendants) to file the necessary UCC statements to establish a lien in plaintiffs' favor on the cooperative apartment owned by nonparty Irina Chatkhan to secure a loan by plaintiffs to her. The Fox defendants had been retained as counsel by plaintiffs to file the necessary documents. As a result of erroneous information provided by the Fox defendants and a misapprehension on the part of LT as to how to correct the mistake, the lien was not perfected for nearly 18 months after it was first filed. In the interim, Ms. Chatkhan filed for bankruptcy, leading other creditors to challenge plaintiff's security interest.

Plaintiffs then commenced this action, alleging legal malpractice and negligence against all the defendants. The legal malpractice and negligence claims against LT did not survive a motion to dismiss. LT is not a law firm and had no duty to plaintiffs; it had been hired by the Fox firm as an independent contractor for the ministerial act of filing the necessary documents with the City Register's Office.

After plaintiffs' claims against LT were dismissed, the Fox defendants sought leave to amend their answer to include cross claims against LT for breach of contract, breach of warranty, and indemnification. LT opposed the amendment of the answer, and, in the event that leave was granted, sought summary judgment dismissing the cross claims. The motion court granted leave to amend the answer to contain all the alleged cross claims and denied LT's cross motion.

The court erred in denying the cross motion. The Fox defendants' alleged need for unspecified additional discovery was an insufficient basis to deny summary judgment. Plaintiffs' malpractice claim, far from being unspecified, alleges the Fox defendants' failure to file the UCC [*2]financing statement, as they had been retained to do. The record is clear that mistakes were made by both the Fox defendants and LT in completing the filing. The Fox defendants may not pass any liability they may have for this malpractice onto their independent contractor (Kleeman v Rheingold, 81 NY2d 270, 275 [1993]).

The record shows that LT had established its entitlement to judgment as a matter of law and the Fox defendants failed to raise any triable issue of fact. With regard to the breach of contract claim, the contract, as reflected by the invoices, was for LT to file a UCC Correction Statement and the Termination Statement on the Fox defendants' behalf. There is no question that, despite some difficulties, the documents were filed. That LT may have been negligent in its performance of the contract is of no moment; the contract as bargained for was performed. Indeed, even if LT was negligent, it would not be liable, as the Fox defendants have not alleged that any legal duty independent of the contract has been violated (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]).

A breach of warranty claim does not lie against LT, as there is no cause of action for breach of warranty where the defendant has only provided a service (Aegis Prods. v Arriflex Corp. of Am., 25 AD2d 639, 639 [1st Dept 1966]).

Finally, there is no proper claim for indemnification against LT. The invoice agreement contains a liquidated damages provision, limiting LT's liability to the cost of the service provided, here, $160."
 

For policy reasons New York Courts limit the types of damages that might be awarded in legal malpractice.  Basically, as the NY Court of Appeals recently reiterated, only pecuniary loss may be the subject of legal malpractice litigation. This specifically and totally leaves out any type of emotional damages.  Nevertheless people suffer these injuries when their attorneys are neglectful.

White v Chelli & Bush  2013 NY Slip Op 30491(U)  March 11, 2013  Supreme Court, Richmond County  Docket Number: 103745/11  Judge: Joseph J. Maltese is one such example.

"The plaintiff has been deaf since birth. After an automobile accident on or about April 16, 2007, the plaintiff retained Chelli & Bush to represent her in a personal injury litigation. According to the plaintiff’s allegations, it was communicated to the attorneys that the plaintiff would require a sign language interpreter during all phases of the litigation. On or about November 28, 2007 the law firm of Chelli & Bush commenced a personal injury action on behalf  of the plaintiff captioned White v. Varsertriger, Index No. 104489/2007. The plaintiff maintains [* 1] that the defendants failed to provide sign language interpreters as requested, except for the examination before trial and the preceding preparation."

"The plaintiff’s basis for her legal malpractice claim occurs at paragraphs 63 and 64 in her
amended complaint that allege that the defendants inability to communicate with her represents a
failure to comply with an attorney’s basic ethical obligation. At paragraphs 66 and 67 the plaintiff alleges the following damages:
66. As a consequence of Defendants’ actions and inactions, White
experienced feelings of frustration, helplessness and inadequacy
throughout the pendency of the litigation and during settlement
conferences. Thereafter, she has experienced sleep and appetite
disturbances, episodes of crying, fearfulness or trepidation, and
feelings of worthlessness, anxiety and depression.
67. As a consequence of Defendants’ actions and inactions,
Plaintiff has been prejudiced and suffered severe emotional distress
and is entitled to compensatory damages.
The Appellate Division, Second Department has made it clear that claims of damages
stemming from the intentional infliction of emotional distress are not recoverable in legal
malpractice actions.

“Damages in a legal malpractice case are designed ‘to make the injured client whole’ . . . A plaintiff’s damages may include ‘litigation expenses incurred in attempt to avoid, minimize, or
reduce the damage caused by the attorney’s wrongful conduct’. . .”7 While the Court of Appeals
has held that plaintiff may be awarded litigation expenses incurred to correct an attorney’s error,
it specifically rejected the notion that a plaintiff could be reimbursed for the expenses incurred
because of an attorney’s negligence.8 Consequently, the plaintiff’s claims for damages based on
the costs and attorney’s fees of this law suit is without merit."

The question of standing is frequently seen in shareholder-corporation cases and often leads to legal malpractice claims afterwards.  In Lieblich v Pruzan  2013 NY Slip Op 01497  Decided on March 12, 2013  Appellate Division, First Department we see the converse. 
 

"This is an action for, inter alia, legal malpractice arising from defendant attorney's representation of plaintiff Lieblich in a lawsuit filed against him as a majority shareholder in Lot 1555 Corp. and against the corporation by the minority shareholder (see Nahzi v Lieblich, 69 AD3d 427 [1st Dept 2010], lv denied 15 NY3d 703 [2010]). Plaintiffs allege that defendant should have conducted discovery in the underlying litigation that would have revealed information discovered in subsequent related litigation and should have used that information to oppose summary judgment in the underlying litigation. They further allege that had the information been submitted in opposition to the motion, it would have resulted in a judgment in their favor.

The motion court properly dismissed the legal malpractice claim as plaintiffs failed to "meet the case within a case' requirement, demonstrating that but for' the attorney's conduct the [plaintiff] client would have prevailed in the underlying matter or would not have sustained any ascertainable damages" (Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Plaintiffs submitted two affidavits that they allege should have been obtained and submitted in the earlier lawsuit. One of the affidavits is based entirely on hearsay and speculation (see Harvey v Greenberg, 82 AD3d 683 [1st Dept 2011]; Babikian v Nikki Midtown, LLC, 60 AD3d 470, 471 [1st Dept 2009]. The other, from the minority shareholder's accountant, is based purely on conclusory assertions and speculation that the minority shareholder would have revealed all of the details regarding the purchase of an apartment and his dealings with plaintiffs to the accountant. These documents in no way undermine the unambiguous shareholder agreement clearly evincing the minority shareholder's interest in Lot 1555. The only remaining evidence that plaintiffs claim defendant failed to timely discover and submit in the underlying action was the minority shareholder's later deposition testimony that does not support the claim that he did not pay any consideration for his 25% [*2]interest in Lot 1555.

The court also properly rejected plaintiffs' argument that defendant negligently failed to seek an offset from the minority shareholder for his proportionate share of corporate expenses from the sale of corporate property, as the shareholder agreement did not require any shareholder contribution to corporate expenses (see McRay v Citrin, 270 AD2d 191 [1st Dept 2000]), and plaintiffs offered no contrary evidence.

Plaintiff Biberaj is not a proper party to this litigation because he was not a party to the underlying action, is not listed in the shareholder agreement, and does not allege any misconduct of defendant other than the alleged negligent representation of Lieblich and Lot 1555 in the prior suit. As the motion court noted, the statements in Biberaj's and Lieblich's affidavits that Biberaj was a "beneficial shareholder" in the corporation are conclusory and insufficient to establish his legal capacity to sue in this action. "

New York State Workers' Compensation Bd. v SGRisk, LLC   013 NY Slip Op 50338(U)   Decided on March 1, 2013   Supreme Court, Albany County   Platkin, J. is an accounting malpractice and fraud case, but it has implications for legal malpractice, and the Court explains how causes of action for fraud, breach of fiduciary duty and unjust enrichment can be converted into malpractice claims, with a three year statute rather than the longer 6 year statute which might otherwise obtain.

"The Court begins with UHY's contention that the breach of contract claim is time barred. The statute of limitations for a breach of contract claim generally is six years (CPLR 213 [2]). Under New York law, "a breach of contract cause of action accrues at the time of the breach"(Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, 402 [1993];see CPLR 203 [a]). The date of the breach is controlling even where damages from the breach are not sustained until a later date and the injured party is "ignorant of the existence of the wrong or injury" (Ely-Cruikshank, 81 NY2d at 402-403 [internal quotation marks omitted]).

Notwithstanding the foregoing general principles, "[a] cause of action charging that [an accounting] professional failed to perform services with due care and in accordance with the recognized and accepted practices of the profession is governed by the three-year Statute of Limitations applicable to negligence actions" (Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]; see CPLR 214 [6]). Thus, the three-year statute of limitations of CPLR 214 (6) applies to claims that "arise out of the accounting services provided by the defendant pursuant to a contract . . . , and out of the accountant-client relationship which resulted therefrom" (Harris v Kahn, Hoffman, Nonenmacher, & Hochman, LLP, 59 AD3d 390, 391 [2d Dept 2009]; see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co. Inc.], 3 NY3d 538, 542 [2004]). This is true even where the claimed breach of contract is based upon an express contractual promise, so long as the promise is of the sort that the professional would be expected to accomplish using due care even in the absence of a specific contractual provision (Kliment, 3 NY3d at 542; see Winegrad v Jacobs, 171 AD2d 525, 525 [1st Dept 1991]). Generally, "the [malpractice] claim accrues upon the client's receipt of the accountant's work product" (Ackerman, 84 NY2d at 541), but the accrual date is subject to tolling under the continuous representation doctrine (Giarratano v Silver, 46 AD3d 1053, 1055 [2d Dept 2007]).

To the extent that the WCB reads these cases, particularly Inter-Community, as holding that the accrual of a cause of action sounding in professional negligence is tolled until the plaintiff has knowledge of its damages, the Court must reject this reading as inconsistent with controlling precedent of the New York State Court of Appeals. Settled law hold that an accounting malpractice claim accrues upon the client's receipt of the accountant's work product since this is the point that a client reasonably relies on the accountant's skill and advice and, as a consequence of such reliance, can become liable for tax deficiencies. This is the time when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court (Ackerman, 84 NY2d at 541).

Indeed, in Ackerman, the Court of Appeals rejected a discovery-based rule that would have tolled the statute of limitations until the accounting client receives a notice of tax deficiency, reasoning that "to base a limitations period on the potentiality of [a notice of tax deficiency] defies the essential premise of temporal finality embodied in Statutes of Limitation" (id. at 542). The Court of Appeals also emphasized the "utter lack of predictability" that would result from departing from "traditional principles governing negligence actions[, which] instruct that plaintiff was injured, and any claim accrued upon performance of the professional service" (id. at 542-543). A similar lack of predictability and temporal finality would be associated with measuring accrual from receipt of a forensic audit report.

Accordingly, except to the limited extent expressly indicated below in connection with plaintiff's quasi-contract claim, the cause of action for breach of contract must be dismissed as time-barred."

Client is faced with a buy-out situation in which it must move a store.  Client hires attorneys to negotiate the buy-out and calculate how costs and taxes will affect the buy-out price.  The attorneys do not calculate all taxes, and the buy-out price does not cover the taxes.  Is this legal malpractice?

Leggiadro, Ltd. v Winston & Strawn, LLP   2013 NY Slip Op 50345(U)   Decided on March 1, 2013
Supreme Court, New York County   Kornreich, J. holds:  "In 2010, the Landlord notified Leggiadro that it wished to negotiate an early termination and buy-out of the Lease because it sought to convert [*2]the Building into residential and commercial cooperative units. ¶ 12. Leggiadro retained W & S to negotiate a buy-out with the Landlord whereby Leggiadro would obtain a "net settlement sum" that would provide an adequate amount of post-tax money to cover the costs of relocating its flagship store. ¶ 15. Brooks specifically requested that W & S advise plaintiffs of any and all tax liabilities arising from the buy-out. ¶ 16.

Leggiadro and the Landlord eventually executed a buy-out agreement, the terms of which were not disclosed to the court pursuant to a Confidentially and Nondisclosure Agreement. ¶ 24. Plaintiffs subsequently became aware that they incurred unexpected New York State and New York City tax liabilities by virtue of differences in how the State, the City, and the IRS treat S-Corporations for tax purposes. ¶ 25. Plaintiffs contend that W & S failed to inform them of these tax issues and, if they had, they would have negotiated a higher buy-out settlement amount with the Landlord that would have been sufficient to cover Leggiadro's moving costs. ¶ 31.

The allegations in the AC and the documentary evidence establish that the scope of W & S's representation was to negotiate a settlement sum that would cover Leggiadro's moving costs. Such costs were not limited to increases in operational costs such as rent. Rather, the Calculation also considers (though it does not ascribe a dollar amount to) goodwill loss from the company leaving its Madison Avenue location. The Calculation does not account for out-of-pocket costs to the shareholders. While the Calculation does consider the federal long term capital gains tax, which all of the involved parties knew would be paid by the shareholders by virtue of Leggiadro's S-Corporation status, this alone is not enough to expand the scope of W & S's representation of the company to include the representation of its shareholders. If consideration of pass-through tax liability was sufficient to constitute the representation of shareholders, by this logic, a lawyer who represents a company necessarily also must represent its shareholders because all financial liabilities of a company ultimately impact the finances of the shareholders. This is not the law.

Nevertheless, the Rosses argue that the special circumstances of the representation created a near-privity relationship under the doctrine set forth in Good Old Days Tavern, supra, which arises from the principle that a provider of professional services is liable for negligent misrepresentations to third-parties where the "relationship is so close as to approach that of privity." Prudential Ins. Co. of America v. Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377 (1992). Critically, it is important to remember that reasonable reliance is an essential element of a claim based on a negligent misrepresentation or omission. See J.A.O. Acquisition Corp. v Stavitsky, 8 NY3d 144, 148 (2007). Thus, even assuming W & S had a duty to consider the tax liabilities of the Rosses, the Rosses cannot claim to have reasonably relied on any representation or omission made by W & S as to the existence of their individual pass-through tax liability because they knew that such liability existed by virtue of their long history of paying these taxes as stockholders of an S-Corporation. Therefore, the Rosses' claims against W & S are dismissed.

However, Leggiadro may maintain its claim against W & S related to the New York City general corporation tax. See AC ¶ 26. The scope of W & S's representation included obtaining a settlement sum from the Landlord that accounted for the company's tax liabilities. Assuming, for the purposes of this motion to dismiss, that W & S failed to account for city taxes and that such failure led to a lower settlement amount with the Landlord, W & S might be liable to Leggiadro for the difference between the settlement amount that Leggiadro obtained and the [*4]amount it would have received if the amount accounted for city taxes. Contrary to W & S's contentions, this damages calculation is not speculative. "
 

The Appellate Division, Second Department is a busy place and provides many many decisions every year.  Many of them are definite, but sparse on detail.  In Montero v Cohen , 2013 NY Slip Op 01382  Decided on March 6, 2013   Appellate Division, Second Department  we see that this was a matrimonial case, we see that it is an international case, but we have no idea of what plaintiff's claims were.  We do see that they were dismissed on summary judgment and affirmed.
 

"The plaintiff and his former wife, Nives Montero, married in 1973 in Argentina. They had no children, and, in 2001, the former wife commenced an action for a divorce. In 2005, after several years of litigation, the parties entered into a stipulation of settlement, and they were divorced by a judgment entered in August 2005 and amended a month later (see Montero v Montero, 85 AD3d 986). The defendant attorneys represented the plaintiff at that time, but the plaintiff became dissatisfied with the terms of the stipulation and later discharged the defendants and commenced this action against them to recover damages for legal malpractice. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. The plaintiff appeals.

The plaintiff failed to raise a triable issue of fact as to whether the defendants' alleged breach of the duty of care proximately caused him to suffer actual and ascertainable damages (see McCoy v Feinman, 99 NY2d 295, 302; DeGregorio v Bender, 4 AD3d 385, 386). Accordingly, the Supreme Court properly granted the defendants' [*2]motion. "
 

The legal malpractice statute of  limitations commences when the mistake is made.  It runs for three years from that date, although it may be tolled by the continuous representation doctrine.  That continuous representation doctrine requires that the attorney and client agree that more work needs to be done, that the attorney continues to work on the case, and that a relationship of trust and confidence ensues.  Here,in Singh v Edelstein  2013 NY Slip Op 01255   Decided on February 27, 2013 Appellate Division, Second Department  it looks like the post-nup agreement was the last act by the defendant, and that plaintiff did not discover the problem until too late.

"To dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812). The statute of limitations for a cause of action sounding in legal malpractice is three years (see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538). The three-year period of limitations runs from the day of the alleged malpractice (see Alicanti v Bianco, 2 AD3d 373, 374, citing McCoy v Feinman, 99 NY2d 295, 306). The statute of limitations for legal [*2]malpractice may be tolled by the continuous representation doctrine " where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim'" (Zorn v Gilbert, 8 NY3d 933, 934, quoting McCoy v Feinman, 99 NY2d at 306).

Here, the defendant met his initial burden by establishing that the alleged malpractice occurred in November 2007, when the postnuptial agreement was executed, and that the action was commenced in August 2011, more than three years thereafter. Accordingly, the burden then shifted to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether she actually commenced this action within the applicable limitations period (see Jalayer v Stigliano, 94 AD3d 702, 703; DeStaso v Condon Resnick, LLP, 90 AD3d at 812; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358, 1359; Krichmar v Scher, 82 AD3d 1164, 1165). The plaintiff failed to meet that burden (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 11; Rodeo Family Enters. LLC v Matte, 99 AD3d 781, 784). "

Dealy-Doe-Eyes Maddux v Schur   2013 NY Slip Op 01309  Decided on February 28, 2013 Appellate Division, Third Department  is the remaining portion of a twin legal malpractice case that has suffered grievous injury.  "Plaintiff commenced two legal malpractice actions against defendant, the second of which proceeded to trial and was dismissed by Supreme Court at the close of her proof. She has repeatedly sought, without success, to vacate the order of dismissal in that case (Maddux v Schur, 83 AD3d 1156 [2011]; Maddux v Schur, 53 AD3d 738 [2008]). Plaintiff then moved for a variety of relief, including to "clarify" the status of the two actions. Supreme Court found that the first action remained pending and otherwise denied plaintiff's motion, and plaintiff appeals.

We affirm. Initially, to the extent that plaintiff is asserting a claim relative to the second action, including claims pursuant to CPLR 2221 or 5015 in that action, we agree with Supreme Court that it has already "proceeded through a well litigated course," and find the application to be repetitive, lacking grounds that could not have been presented in the prior proceedings (see [*2]Maddux v Schur, 83 AD3d at 1157-1158; Maddux v Schur, 53 AD3d at 739; see also Lambert v Schreiber, 95 AD3d 1282, 1283 [2012]). Further, we discern no error in Supreme Court's determination that there had been no prior application to consolidate and join the two actions (see CPLR 602 [a]), nor in its direction for the parties to proceed to a conference before the court [FN2]. Plaintiff's remaining arguments have been considered and found to be without merit. "

Its becoming harder to discern when a Judiciary Law 487 pleading will withstand a motion to dismiss on the pleadings.  In Cohen v Kachroo  2013 NY Slip Op 30416(U)  February 22, 2013
Supreme Court, New York County  Docket Number: 111735/10  Judge: Eileen A. Rakower  the motion to dismiss was denied, unfortunately without significant comment by the Judge.

"As set forth in the Verified Second Amended Complaint, Plaintiff entered into a retainer agreement with Defendants on January 5,20 10, wherein Defendants agreed to represent Plaintiff in prosecuting her claims against her husband in federal court, and to defend any claims brought by the attorney who previously represented her in the federal action. Pursuant to the retainer agreement, Plaintiff was to pay a $25,000 initial retainer, and to supplement that amount in order “to cover minimal costs of litigation.” The agreement further states:

We shall be compensated upon recovery, whether by settlement or judgment. . . compensation shall be in the amount awarded by the Court, but, in no event, shall We seek contingency compensation in excess of 30% . . , of any recovery plus reasonable expenses less the
retainer amounts received , . , Plaintiff paid the retainer amount. On June 7,20 10, Defendant KLS resigned as Plaintiff’s attorney in the federal action allegedly due to Plaintiff’s inability to meet
her financial obligations, Plaintiff alleges that Defendants threatened to abandon her action if she not did pay additional money to them, and that they tried to coerce her into adding payment terms to the retainer agreement. Plaintiff alleges that, as she was only required to pay the initial $25,000, and a percentage of any recovery made in the federal action, Defendants misrepresented to the federal court judge that she failed to pay her legal fees when they sought withdrawal, and that they subsequently abandoned the action without cause. Defendants now move to dismiss certain causes of action contained in Plaintiffs Verified Second Amended Complaint pursuant to CPLR 321 1 (a)(7).

Defendants seek to dismiss Plaintiffs claims for legal malpractice, breach of fiduciary duty, breach of the New York Rules of Professional Conduct, Breach of New York Judiciary Law 487 for failure to state a claim, and punitive damages. Defendants contend that “this matter does not constitute anything more than a fee dispute.”

Plaintiff‘s sixth cause of action alleges that Defendants breached Judiciary law, Section 487. Judiciary Law, Section 487 permits a party to recover treble damages against an attorney who:
1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, 2. Willfully delays his client’s suit with a view to his own gain; or, willfully
receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for. Plaintiff’s allegations concerning the alleged deceit by Defendants to Plaintiff and to the Courts are sufficient to establish a violation of Judiciary law 487( 1). “Because damages for breach of a contract are allowed as compensation for the  injury or damage resulting from such breach rather than by way of punishment, the general rule in actions for breach of contract is that the damages are limited to the pecuniary loss sustained, and that exemplary damages are not recoverable. However, punitive damages are recoverable in an action to recover for breach of contract upon a showing of gross, wanton, or willful fraud or of high moral culpability of the defendant.” (36 N.Y, Jur. 2d Damages Section 188). Here, Plaintiff‘s allegations of alleged coercion by Defendants are sufficient to support Plaintiffs prayer of relief for punitive damages."

Coverage under a legal malpractice insurance policy, is the sole reason for paying premiums, and probably one good reason that litigating attorneys fall asleep at night. They are handling multi-million dollar cases, earning big fees and (hopefully) helping their clients.  If it all goes wrong, and in the field of human events there are always mistakes, then the insurance is there to cushion the blow.  However, in legal malpractice policies there is the reporting clause.  In Property & Cas. Ins. Co. of Hartford v Levitsky   2013 NY Slip Op 30273(U)  January 25, 2013  Supreme Court, New York County  Docket Number: 109550/11  Judge: Lucy Billings  the attorneys did not timely report a problem, and lost their coverage.

"Defendants represented Paul Rowland as a plaintiff in an action in Monroe County for personal  injuries sustained on October 24, 2003, while Rowland was performing construction work
at a mall. On August 29, 2006, less than two months before the statute of limitations of three years expired, C.P.L.R. § 214(5), defendants commenced an action on Rowland's behalf against
Wllmorite, Inc. Defendant Levitsky believed that Wilmorite owned the Eastview Mall where Rowland was injured, based On a sign at the premises and on common knowledge that Wilmorite owns all the large malls in the Rochester area, including Eastview." Steven Levitsky (Nov. 30, 2011) Ex. 8, at 1. On October 19, 2006, five days before the statute of limitations expired, Wilmorite answered Rowland's complaint, Aff. of denying ownership of the mall where Rowland was injured. Almost 14 months later, at a deposition December 12, 2007, a witness on behalf of Wilmorite again denied that it owned the mall and claimed Great Eastern Mall, LP, was the owner. That same witness, however, testified that Great Eastern Mall and Wilmorite worked closely together and shared an office address.

Wilmorite was the construction manager on the site when Rowland was injured under a contract with Great Eastern Mall. Only then did defendants undertake any investigation and eventually learn that that contract required Great Eastern Mall to maintain insurance for Wilmorite covering persona1 injuries arising from employees' operations at the site. Based on that relationship between Great Eastern and Wilmorite, defendants believed Rowland still would be entitled to recover from Wilmorite, e.q., N.Y. Labor Law §§ 200, 240(1); Walls v. Turner Constr. Co., 4 N.Y.3d 861, 864 (2005); Rizzuto v. Wenqer Contr. CO., 91 N.Y.2d 343, 352-53 (1998), or, despite the expiration of the statute of limitations, . to join Great Eastern Mall under the relation back doctrine. C.P.L.R. § 203(b). e.g.., Buran v Cural, 87 N.Y.2d 173, 178 (1995); Cooley v. Urban, 6 A.D.3d 1077, 1078 (4th Dep't 2004 ) .

On February 5, 2008, Wilmorite moved to dismiss Rowland's claims against it. On May 28, 2008, defendants opposed Wilmorite's motion and cross-moved to join Great Eastern Mall as
a defendant. On July 30, 2008, the Supreme Court, Monroe County, granted Wilmorite's motion and denied Rowland's cross-motion,

On August 19, 2008, Rowland's new attorney informed defendants that he had been retained for purposes of a possible malpractice claim against defendants. On May 4, 2009, Rowland  commenced, through his new attorney, a malpractice action against defendants.Defendants first notified plaintiff of a possible malpractice claim . August 29, 2008. Levitsky Aff. Ex. 8, at 2. From defendants'

From defendants' vantage point, defendants thus notified plaintiff of the potential claim 30 days after the Supreme Court granted Wilmorite's motion to dismiss Rowland's action and denied his cross-motion to join Great Eastern Mall, 10 days after Rowland's new attorney informed defendants Rowland was pursuing a possible malpractice claim, and several months before he commenced an actual malpractice action. Nevertheless, defendants' notice came more than one year and 10 months after Wilmorite's answer informed defendants that, with less than a week remaining before the statute of limitations expired, defendants had not sued the premises' owner and more than eight months after deposition testimony confirmed that fact, then more than a year after the statute of limitations expired.

The notice provisions are not ambiguous. Nothing in their plain language suggests that 2(b) supersedes 2(a) or that 2(a) applies only to a claim after the policy period has expired.
Although 1 provides that "claims subsequently made against an insured arising out of that circumstance will be considered to have been made and reported during the policy period nothing in 1 suggests that the requirement to report circumstances that may give rise to a claim is limited to post-policy period claims. Coploff Aff. Ex. D § III(A) , at 8 (emphases omitted). Nor do  1's terms indicate any modification of  2(a).

Once they became aware of circumstances that might produce a claim, however, it is irrelevant whether eventually they learned of evidence regarding Wilmorite's relationship with the owner of Rowland's injury site that led to a reasonable, good faith belief in his right to recover from Wilmorite or to join the owner. between Wilmorite and the owner until the December 2007 deposition, 14 months after defendants became aware of a potential claim, obligating them to notify plaintiff within 60 days. By the time of the deposition, defendants already had  breached that policy requirement and lost entitlement to coverage."

Rather than try to boil this case down, we quote fromHadar v Pierce  2013 NY Slip Op 30185(U)
January 4, 2013 Sup Ct, New York County Docket Number: 652811/11 Judge: Eileen Bransten. 

"This action arises from an underlying dispute between Eric Hadar and his father Richard Hadar. Eric Hadar has been a successful real estate developer for over fifteen years. Affirmation of John S. Rand, Ex. A. ("Comp!."), ~ 3. Eric Hadar suffered from drug addiction, and, on October 3,2008, he was arrested for drug possession. Id. at ~ 26. Eric Hadar subsequently entered a rehabilitation program. Id. Richard Hadar offered to "hold down the fort" at Eric Hadar's real estate business
until Eric Hadar completed his treatment. Id. at ~ 28. Plaintiffs claim that, rather than "hold down the fort," Richard Hadar took advantage of his son's absence to attempt to wrest control of the real estate business from Eric Hadar. Id. Plaintiffs claim that Richard Hadar's plan to accomplish this scheme was to accuse his son of mismanagement of the real estate company and the EDHFT. Id. at ~ 28. For example, Plaintiffs assert that, in January or February 2009, Richard Hadar and his attorney,Michael Rosenbaum, told partners in Lawrence One, L.P., which was one of Eric Hadar's
real estate ventures and Robert Weir, who was then the trustee of the EDHFT, that Eric Hadar: (1) mismanaged and neglected various properties and trusts; (2) engaged in self dealing by taking interest-free loans and misappropriating assets from EDHFT; (3) along with Allied Partners, charged excessive and unauthorized management fees; (4) negligently managed a property near Kennedy Airport known as "Carlton House"; and (5) was no longer able to manage real estate competently. Id at ~ 30. Rosenbaum prepared a letter containing these alleged mis representations and had Weir and Yohalem sign the letter. Id. at ~ 31. On February 11,2009, Richard Hadar, Ira Yohalem as trustee of the Joshua D. Hadar Family Trust ("JDHFT") and several holding companies for Eric Hadar's various real estate developments (the "Holding Company Plaintiffs") brought an action against Eric Hadar, Allied and JFK (the "Prior Action"). Winter Affirm., Ex. A, p. 1. Defendants Rosenbaum and Patterson served as plaintiffs' attorneys. Id. The plaintiffs in the Prior Action accused Eric Hadar of mismanaging and wasting the plaintiffs' assets and investments. Id. at p. 9. The Prior Action alleged breach of fiduciary duty, breach of contract, and sought to remove Eric Hadar from his position as a manager of the Holding Company Plaintiffs and to enjoin Eric Hadar from taking any further action as manager. Id at pp. 18-24.

Defendants assert that the "judicial proceedings privilege" shields them from liability for bringing the Prior Action and the Surrogates Action. Defendants argue that all of Plaintiffs' claims derive from the filing of these lawsuits, and, because the filing of lawsuits is protected by the judicial proceedings privilege, the complaint should be dismissed in its entirety. Defamation Claim Against Rosenbaum Ordinarily, "a statement made in the course of legal proceedings is absolutely privileged ifit is at all pertinent to the litigation." Sexter & Warmflash, PC. v. Margrabe,
38 A.D2d 163, 171 (1st Dep't 2007) (internal citations and quotation marks omitted). However, the "privilege may not be extended to a litigant who commences a sham lawsuit for the sole purpose of defaming his adversary." Sexter & Warmflash, P.C., 38 A.D2d at 173, n. 5. Plaintiffs have alleged that Rosenbaum commenced the Prior Litigation against Eric Hadar solely to harass and disparage Eric Hadar in an effort to alienate his partners and investors in his real estate business. PI. Memo, pp. 8-9. Plaintiffs further claim that the allegations in the Prior Action and Surrogates Court Action were patently false, and that Rosenbaum conspired with Richard Hadar to invent the allegations. Plaintiffs assert that Rosenbaum was assisting Richard Hadar in his ultimate goal of taking over Eric Hadar's real estate business."

The balance of the motion to dismiss was denied.  Read on, in the decision, for privity, privilege and documentary evidence issues.

To what extent did defendant attorneys participate in the negotiation and advice given to a doctor who had a condo along with a professional suite, and then rented the suite?  Was co-defendant the attorney who gave all the advice and defendant merely one who attended the closing?

In Gershkovich v Miller, Rosado & Algios, LLP   2013 NY Slip Op 50050(U) [38 Misc 3d 1211]  Decided on January 9, 2013  Supreme Court, Kings County  Schmidt, J. we see such a question.  More than that, we see the folly of an early motion for summary judgment, made before plaintiff testified.
 

"In support of its motion for summary judgment, Miller had submitted the affidavit of Christopher Rosado. In his affidavit (see Zamurs aff., Ex. B) therein, Mr. Rosado stated that he [*2]was retained by co-defendant, Arthur Welsher, solely to represent the plaintiff at the closing of the purchase of the units. All other aspects of the purchase were performed by the co-defendant. Mr. Rosado did not negotiate, or participate in any way in the negotiation of the contract of sale of the subject units. He did not review any documents with plaintiffs prior to the date of the closing. Plaintiffs did not seek his advice concerning the leasing of the units and Mr. Rosado did not represent them or prepare any documents concerning the leasing of the units.

In opposition to Miller's motion, plaintiffs submitted the affidavit of Tibor

Gershkovich, a practicing medical doctor, in which he stated that Miller (through Rosado) advised him and his wife that "the commercial units were merely an appendage to the plaintiffs condominium, had zero percentage of the common elements, paid no condominium dues or assessments, and were not bound by any of the restrictions imposed upon the residential unit owners." See affirmation of Roman Popik dated September 5, 2012 (Popik aff.), Ex. B, ¶ 29. Dr. Gershkovich also stated in his affidavit that, following the advice of Miller, he did not submit prior notice to the Board of Managers concerning the entering into the leases for the subject units. Id., ¶ 20.

This court, in denying Miller's motion for summary judgment, found that Mr. Rosado's affidavit was sufficient to make a prima facie showing that Miller did not negligently advise the plaintiffs. However, the court found that the affidavit of Dr. Gershkovich raised a question of fact as to whether Mr. Rosado advised the plaintiffs that the commercial units were not bound by any of the restrictions imposed upon the residential unit owners.

Subsequently, on January 25, 2012 and March 28, 2012, the deposition of plaintiff Tibor Gershkovich was held. See Zamurs aff., Ex. C (transcript).

Miller now moves to renew its summary judgment motion, arguing that the testimony of plaintiffs at their depositions contradict the affidavit relied on by plaintiffs to defeat Miller's motion for summary judgment and also provide evidence which clearly demonstrates that plaintiffs cannot establish the requisite elements of legal malpractice against Miller.

A motion for leave to renew is addressed to the sound discretion of the court." Matheus v Weiss, 20 AD3d 454, 454-455 (2d Dept 2005). Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e] [2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR 2221(e) (3).

In the matter at bar, the court finds that Miller has established reasonable justification for his initial failure to submit the new facts in that the evidence revealed by the testimony of plaintiff Dr. Tibor Gershkovich was not known at the time of the making of the original motion for summary judgment. Therefore, the court grants Miller's motion to renew its prior summary judgment motion.

Upon renewal of Miller's motion for summary judgment, the court further finds that Miller has established entitlement to judgment dismissing plaintiffs' complaint.

At his deposition, Dr. Gershkovich testified that the contract of sale for the subject units was negotiated solely by Mr. Welsher. Tr. at 31. According to plaintiff, Mr. Welsher told him that the units could be rented out like a commercial unit. Id. Plaintiff did not speak to anyone other than Mr. Welsher prior to the signing of the contract of sale. Id. at 48.

At the closing, plaintiffs were represented by Mr. Rosado. Id. at 59. According to Dr. [*3]

Gershkovich, he spoke to Mr. Rosado one week prior to the closing. Id. at 60. During the conversation, he asked Mr. Rosado if he reviewed all of the documents needed for closing on the units and whether there would be any problems during the closing. Id. Significantly, however, Dr. Gershkovich acknowledged that he did not mention any particular problems that he may have had in mind. Id. "

Plaintiff must always prove that departures from good and accepted practice by the defendant were a proximate cause of the injury.  Note that there need be no proof that the departure was the proximate cause.  In Arbor Realty Funding, LLC v Herrick, Feinstein LLP   2013 NY Slip Op 01216
Decided on February 26, 2013   Appellate Division, First Department  we see such an application. 
"Defendant argues that even if, but for its allegedly erroneous legal advice as to zoning issues, plaintiff would not have made bridge loans to the developer of a residential tower at 303 East 51st Street in Manhattan, plaintiff cannot establish legal malpractice or negligent representation because it cannot demonstrate that the zoning advice proximately caused its loss on the defaulted loans. Plaintiff made the loans in mid-2007. Defendant contends that the crane collapse at the project site in March 2008, which killed seven people, the market collapse beginning in late 2007 and continuing through 2008, and plaintiff's insufficient response to the Department of Buildings letter notifying plaintiff of its intent to revoke the project's building permits, constituted intervening events that severed the causal link between defendant's zoning advice and plaintiff's loss (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]).

There is, however, evidence in the record that raises an issue of fact as to causation (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). It appears [*2]that potential takeout lenders had concerns about the zoning issues even before March 2008. To the extent later events contributed to plaintiff's loss, they are properly considered by a fact-finder (see e.g. Schauer v Joyce, 54 NY2d 1 [1981]). "

Complaints might be compared to a precision rifled single shot or to a shotgun, in which an ever-widening pattern of scatter shot is fired.  Complaints patterned on either might be successful, but Iwachiw v Bahr  2013 NY Slip Op 30283(U)  January 11, 2013  Supreme Court, New York County
Docket Number: 401546/2011  Judge: Lucy Billings chose the shotgun approach and was wholly unsuccessful.

"The thrust of the complaint's allegations against Adorno Denker and Scheiner is that they  participated with other defendants in fraudulently or negligently denying plaintiff Workers'  compensation and insurance coverage for property loss. The complaint simply alleges that
Metazur Restaurant was negligent and also claims wrongful death, malpractice, and defamation against all defendants.

The complaint provides no detail as to what actions by any defendants were fraudulent or what insurance claims they fraudulently or negligently canceled, failed to file, or otherwise denied to plaintiff. His unsworn opposition to Scheiner's motion indicates that defendant Tower Group's
misdescription of his mother's house caused the denial of insurance coverage for the house, but he nowhere pleads the source of any duty on defendants' part to provide insurance coverage to him.

A fraud claim requires plaintiff to allege that defendants misrepresented or omitted a material fact, knowing the misstatement or omission was false, to induce plaintiff to rely on it, and that plaintiff justifiably relied on the misrepresentation or omission and incurred damages from that reliance. Mandarin Tradinq Ltd. v. Wildenstein, 16 N.Y.3d 173, 178 (2011); Gosmile, Inc. v. Levine, 81 A.D.3d 7 7 , 81 (1st Dep't 2011); Nicosia v. Board of Mqrs. of the Weber House Condominium, 77 A.D.3d 455, 456 (1st Dep't 2010); Zanett Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 496 (1st Dep't 2006). Plaintiff must plead the circumstances of any claimed fraud in detail, such as the contents of any misrepresentation and when and to whom it was stated. C.P.L.R. § 3016(b); Pludeman v. Northern Leasing SysInc., 10 N.Y.3d 486, 492 (2008); El Entertainment U . S . LP v. Real Talk Entertainment, Inc., 85 A.D.3d 561, 562 (1st Dep't 2011); Waggoner v. Carum, 68 A.D.3d 1, 6 (1st Dep't 2009); Caldwell v. Gumley-Haft L.L.C., 55 A.D.3d 408 (1st Dep't 2008). Since plaintiff pleads none of these elements, let alone in detail, the complaint, even when supplemented by his affidavits in opposition to the motions and cross-motion, fails to support a claim of fraud perpetrated by any defendants against him. Therefore the court grants the motions and cross-motion to
dismiss the fraud claim against defendants Adorno Denker, Metazur Restaurant, and Scheiner. C.P.L.R. §§ 3016(b), 3211(a) (7)."

So many of these cases start over a fee.  Here, relatives try to push relatives out of a house (we guess it was bequeathed to both), and clients end up spending about $ 50,000 to avoid being put in the street.  Then, it comes time to pay the attorneys.  This leads to an attorney fee case and a legal malpractice counterclaim.  In the end, clients lose all around.

Davis v Siskopoulos  2013 NY Slip Op 30353(U)  February 11, 2013  Supreme Court, New York County  Docket Number: 111965/04  Judge: Barbara Jaffe.

"In 2000, defendants hired plaintiff law firm to defend them in a partition action commenced by the brother of decedent Angelo Siskopoulos seeking to evict them from their residence. A referee held a hearing and issued a report finding that defendants had not ousted the brother from the residence, and awarded defendants certain damages, including reimbursement of half of the mortgage payments paid by them and for repairs and maintenance of the property. (Affidavit of Bonnie Reid Berkow, Esq., dated Feb. 13,2012 [Berkow Affid.], E)(h. GG). Between August 1,2000 and December 21,2003, plaintiff rendered legal services to them. As of January 31,2004, defendants had paid plaintiff $8,559.68 for its services, leaving a balance of$45,577.92. (Affirmation of Alexandra Siskopoulos, Esq., dated Feb. 12,2012 [Siskopoulos Aff.], Exh. A).
On or about August 16, 2004, plaintiff commenced the instant action against defendants, asserting causes of action for an account stated and quantum meruit.

Defendants' failure to plead the specific allegations in their affirmative defenses is not fatal here as plaintiff opposes them on the merits and defendants asked questions relating to them in discovery. (See Drago v Spadafora, 94 AD3d 1041 [2d Dept 2012] [no showing made that plaintiffs were taken by surprise or prejudiced by defendant's use of unpleaded affirmative defense in support of his motion for summary judgment]; Sullivan v Am. Airlines, Inc., 80 AD3d 600 [2d Dept 2011] [unpleaded defense may serve as basis for granting summary judgment in absence of surprise or prejudice to opposing party]; Joan Hansen & Co., Inc. v Everlast World's Boxing Headquarters Corp., 2 AD3d 266 [1 st Dept 2003], Iv denied 2 NY3d 702 [2004] [summary judgment may be granted on unpleaded defense where opponent of motion has not been surprised and fully opposed motion]).

Here, defendants have failed to establish, prima facie, that plaintiff is not an expert in the real estate field or had no experience dealing with partition actions as plaintiff s discovery response that it could not recall working on partition actions before 2000 does not constitute an admission that it had no experience working on such actions, and they cite nothing in Wagner's deposition testimony that is relevant to this claim. Thus, to the extent that plaintiff made certain representations to defendants, defendants have not shown that they were false misrepresentations. In any event, as defendants fail to submit an affidavit from someone with personal knowledge of the circumstances underlying their retention of plaintiff, they cannot establish that plaintiff made the representations to them on which they relied, and the printout of plaintiffs website is not probative. (See eg Dombroski v Samaritan Hasp., 47 AD3d 80 [3d Dept 2007] [general accusation of deception not based on personal knowledge insufficient to establish estoppel]; Cohen v Houseconnect Realty Corp., 289 AD2d 277 [2d Dept 2001] [complaint contained no allegations setting forth alleged misrepresentations, and no such allegations were contained in plaintiffs affidavit submitted on motion]; Urquhart v Philbor Motors, Inc., 9 AD3d 458 [2d Dept 2004] [affidavit submitted by defendant insufficient to establish prima facie entitlement to summary judgment as it was not by person with first-hand knowledge of alleged misrepresentations]; see also Nissan Motor Acceptance Corp. v Scialpi, 83 AD3d 1020 [2d Dept 2011] [conclusory and unsubstantiated allegations of fraud and misrepresentation insufficient]; cf Silber v Muschel, 190 AD2d 727 [2d Dept 1993] [defendant submitted fact-specific affidavit evincing first-hand knowledge of  misrepresentations made by plaintiff during parties' negotiations]; Slavin v Victor, 168 AD2d 399 [1 st Dept 1990] [in alleging fraud, party appropriately offered affidavit of person with first-hand  knowledge as to nature of misrepresentations). For the same reasons, defendants have not established their claim that plaintiff breached ethical rules by holding itself out as an expert in real estate.

Not only did the defendants obtain dismissal, but the non-answering defendant obtained dismissal too.  Unfortunately the 2d Department decision in Siwiec v Rawlins 2013 NY Slip Op 00903 Decided on February 13, 2013  Appellate Division, Second Department did not explain its reasoning. The most that can be gleaned from this slender record is "Here, the complaint fails to allege facts sufficient to establish that the underlying action would have been successful or that the defendants proximately caused the plaintiff to sustain damages (see Hallman v Kantor, 72 AD3d 895, 897; Wald v Berwitz, 62 AD3d at 787; Simmons v Edelstein, 32 AD3d 464, 465-466). Accordingly, the Supreme Court properly granted the motion of the defendants Gary N. Rawlins and The Rawlins Law Firm, PLLC, and the cross motion of the defendant Craig F. Wilson, pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

Further, the Supreme Court providently exercised its discretion in denying the plaintiff's cross motion pursuant to CPLR 3215(a) for leave to enter a default judgment against the defendant Craig F. Wilson (see Feder v Eline Capital Corp., 80 AD3d 554; Giha v Giannos Enters., Inc., 69 AD3d 564, 565). "

Plaintiff loses in Supreme Court, and dismissal is affirmed in the Appellate Division in this legal malpractice case.  Voutsas v Hochberg   2013 NY Slip Op 00803   Decided on February 7, 2013
Appellate Division, First Department  discusses the limits of the fraud discovery rule, as well as continuous representation.
 

"The fraud and breach of contract claims alleging that plaintiff's former attorneys had misrepresented to the Bankruptcy Court that plaintiff was insolvent accrued no later than the December 26, 2001 entry of the bankruptcy decree. Accrual of the portion of the fraud claim alleging that payment of part of plaintiff's legal fees by a third party was concealed from him was not deferred by the discovery rule, since the documentary evidence, even without the affidavits submitted, clearly showed that plaintiff had been aware of such payment more than two years before he commenced this action. The continuous representation doctrine did not apply to the malpractice claim, as the legal services relied upon were unrelated to the specific legal matter as to which malpractice was alleged (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]), and was not pursuant to a retainer agreement in which the attorney and client anticipated continued representation (id. at 170).

Moreover, the fraud, breach of fiduciary duty and breach of contract causes of action all arose from the same facts as the malpractice claim and alleged similar damages, and were therefore properly dismissed as duplicative of the deficient malpractice claim (see e.g. Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669 [1st Dept 2012]; Bernard v [*2]Proskauer Rose, LLP, 87 AD3d 412, 416 [1st Dept 2011]). "

Justice Ritholtz of Supreme Court, Queens County lays the issue out in the first sentence of the decision in 150 Centreville, LLC v Lin Assoc. Architects, PC   2013 NY Slip Op 23038 Decided on February 6, 2013  Supreme Court, Queens County Ritholtz, J.    "The questions involved in this action are whether there should be any consequences to plaintiffs who commenced a litigation, waged for several years, but failed to preserve and safeguard the documents necessary to provide responses to defendants during discovery, and what ramifications and/or sanctions should flow from [*2]the failure. This opinion also raises novel issues regarding the issuance of attorney's fees under Part 130 of the Rules of the Chief Administrator, governing the award of costs and the imposition of financial sanctions for frivolous conduct in civil litigation."
 

"The Appellate Division, Second Department, has repeatedly stated that it will not tolerate a pattern of willful default and neglect in court-ordered discovery obligations. See, Bazoyah v Herschitz, 79 AD3d 1081, 1081-1082; Brownfield v Ferris, 49 AD3d 790, 791; Diamond v Vitucci, 36 AD3d 650; Rodriguez v New York Methodist Hosp., 3 AD3d 526; Clarke v UPS, Inc., 300 AD2d 614, 615; Piacentini v Mineola Union Free School Dist., 267 AD2d 290; Wynne v Wagner, 262 AD2d 556, 556, appeal dismissed, 94 NY2d 796; Williams v New Style Limousine, Inc., 1 Misc 3d 502, 506; Fujah v V-M Auto Refinishing Corp., 192 Misc 2d 170, 175; accord, Williams v Shiva Ambulette Serv., Inc.,AD3d, 2013 WL 322588 .

Five separate orders have been issued concerning plaintiffs' failure to engage in discovery: the Preliminary Conference Order of April 22, 2009, the Compliance Conference Order of September 8, 2009 that specifically referenced the defendants' set of [*8]interrogatories and demand for documents dated June 15, 2009, the Short Form Order of Dec. 14, 2009, the Short Form Order of March 18, 2011, and, finally, the So-Ordered Stipulation of Oct. 6, 2011. "

"The order of this Court dated December 14, 2009, dismissing the complaint without opposition, cited the New York Court of Appeals' decision in Kihl v. Pfeffer, 94 NY2d 118, where the Court unanimously affirmed the trial court's dismissal of a complaint for a plaintiff's failure to respond to a set of interrogatories. There, in Kihl, Chief Judge Kaye, writing for the Court, stated:

Regrettably, it is not only the law but also the scenario that is all too familiar [citations omitted]. If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a "court may make such orders . . . as are just," including dismissal of an action (CPLR 3126). Finally, we underscore that compliance with a disclosure order requires both a timely response and one that evinces a good-faith effort to address the requests meaningfully.94 NY2d at 122-123.

Despite the admonition of the Court of Appeals in Kihl, in 1999, the Court, even a decade later, was still warning the Bar and litigants with the message that discovery orders needed to be obeyed. Specifically, in Gibbs v St. Barnabas Hospital, 16 NY3d 74, the Court of Appeals asserted that "there is also a compelling need for courts to require compliance with enforcement orders if the authority of the courts is to be respected by the bar, litigants and the public." Gibbs, 16 NY3d at 81. The Court, in language certainly applicable to the facts of the case at bar, maintained: "Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution." Id.

That message still has not penetrated, requiring appellate courts to repeat it. Most recently, Justice Leonard B. Austin, writing for a unanimous panel of the Appellate Division, Second Department, in Arpino v F.J.F. & Sons Elec. Co., Inc.,AD3d, 2012 WL 6028883, 2012 NY Slip Op. 08271, articulated the applicable law:

As the Court of Appeals has noted, the failure of attorneys to comply with court-ordered deadlines has increasingly become a problem in our court system [citations omitted]. Compliance requires not only a timely response, but a good-faith effort to provide a meaningful response [citations omitted]. The failure to comply with deadlines and provide good-faith responses to discovery demands "impairs the efficient functioning of the courts and the adjudication of claims" (see, Gibbs v. St. Barnabas Hosp., 16 NY3d at 81; Kihl v. Pfeffer, 94 NY2d 118, at 123). The Court of Appeals has also pointed out that "[c]hronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules" (Gibbs v. St. Barnabas Hosp., 16 NY3d at 81), and has declared that "[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity" (Kihl v. Pfeffer, 94 NY2d at 123; see generally, Cadichon v. Facelle, 18 NY3d 230). "

"A party has a duty to preserve, protect, and safeguard evidence when it has notice that the evidence is relevant to litigation or should have known that the evidence might be relevant to future litigation. See, e.g., VOOM HD Holdings LLC v EchoStar Satellite, L.L.C., 93 AD3d 33 [appellate court found that the destruction of emails for a four-month period, when a "litigation hold" should have been placed on electronically stored information, was, at a minimum, "grossly negligent"], aff'g 2010 WL 8400073, 2010 NY Slip Op 33759(U) & 2010 WL 8435623, 2010 NY Slip Op. 33764(U); S.B. v U.B.,Misc 3d, 953 NYS2d 831, 2012 NY Slip Op. 22313 ["(A) party is responsible for preserving evidence when they are on notice that it may be needed for litigation. [citation omitted]. This responsibility to preserve evidence may extend to items that are not in the possession of a party when that party negligently fails to take steps to assure its preservation."].

It's medical malpractice which is something we don't usually write about, but Justice Schlesinger's opinion in this medical malpractice summary judgment opinion is well worth reading.  Balzola v Giese  2013 NY Slip Op 30324(U)  February 5, 2013  Supreme Court, New York County  Docket Number: 114205/2009  Judge: Alice Schlesinger slowly and thoroughly works it way through a medical malpractice - hearsay - summary judgment problem.

"The plaintiff, her widower and Administrator of the estate, is Pablo Balzola. It is his account of Ms. Porras’ last days which forms the critical part of this action, one sounding in wrongful death and medical malpractice, It is also the critical part of the motion now before me by the defendants, a motion to dismiss the action in its entirety. His account is so critical because Mr. Balzola, at his deposition, testified about the symptoms his wife was having as she reported them to him. Those symptoms, which included chest pains and shortness of breath, form a good part of the predicate
for the opinions provided by Dr. Mark Taff, a Pathologist and Chief Medical Examiner of Rockland County and expert for plaintiff on the issue of causation, as well as for the opinions provided by a board certified plastic surgeon and expert for the plaintiff on the issue of departures. The moving defendants are her doctor, Sharon Giese, who performed this elective surgery on June 25, her P.C., and Sarah Lazarus, her Physician’s Assistant. Pursuant to CPLR 53212, they are all moving for summary judgment.

In other words, counsel for defendants argues that, even if there had been malpractice, there is no merit to the plaintiff‘s contention that the embolism which killed Ms. Porras could have been treated, in other words, that there was time to treat it. This is from a pathology perspective. 

After reviewing pathology slides, Dr. Factor states that he is able to ascertain the timing of the decedent’s fatal pulmonary embolism, In his affirmation he opines that “the fatal pulmonary embolism was acute, fresh, and traveled to the decedent’s lung only 20 to 30 seconds prior to the decedent’s acute cardiopulmonary failure.” (79, emphasis in the original). Dr. Factor further opines, also with a reasonable degree of medical certainty, that “after forming, the thrombus broke off from a vein in decedent’s lower extremity and traveled to (her) pulmonary artery only moments before it caused the acute cardiopulmonary failure and her ultimate death.” (71 0, emphasis in the original).
Finally, and this is of great significance, Dr. Factor states that ‘“he decedent would not have experienced any symptoms related to the fatal pulmonary embolism at any time prior to the moments immediately before she lost consciousness in the late evening of Saturday, June1 27, 2009”. (71 1, emphasis in the original). Thus, Dr. Factor concludes that there would have been no time for Ms. Porras to seek medical assistance. In other words, he either challenges the veracity of Mr. Balzola’s testimony regarding the reported symptoms, or he feels the symptoms are not related to the embolism.Plaintiff confronts these opinions and submits two of his own expert affirmations to refute them.

However, as alluded to earlier, what is largely determinative of this motion and action is the issue of causation. For as we all know, the defendant doctor might have been grossly negligent or terribly uncaring or worse, but if such I behavior would not have made any difference in the ultimate outcome, the tragic death of Adriana Porras, then the action must fail. Dr. Taff tells us that in his role as Chief Medical Examiner of Rockland County, he was present at the June 29, 2009 autopsy of the decedent.’ He then states that his opinions rely not only on the medical records, litigation documents and affirmations of the defense experts, but also on his own observations during the autopsy. He then recites the cause of death as was reported in the Autopsy Report. Immediately
thereafter, he gives his opinion “within a reasonable degree of medical certainty that based upon the results of the autopsy, there was sufficient time to intervene to treat her pulmonary emboli and the failure of the defendants ... to take any action deprived her of a substantial chance of cure and was the proximate cause of her death.” (Exh A to Opposition, 76).
 

However, Dr. Taff relies on more than “the results of the autopsy” to arrive at this conclusion. Later on in his affirmation, he discusses the testimony of Mr. Balzola as to the complaints made to him by his wife in the post-operative days, Friday and Saturday, June 26 and June 27, 2009. He relates those symptoms to his observations and explains how the latter were responsible for the former.  Specifically in this regard, Dr. Taff states that during the autopsy “we found” that rather than seeing one massive clot to the lung, in fact “both of her lungs contained multiple small clots obstructing both lungs as well as one large clot lodged in the pulmonary artery and branches.” (VI 3). This physician then agrees with the report’s conclusion that it was the larger clot that caused Ms. Porras’ death, as it broke off and traveled to her lung.

However, Dr. Taff then goes on to opine, within a reasonable degree of medical certainty, that these smaller clots or “bits and pieces of the thrombosed right popliteal vein” were the cause of the “shortness of breath and chest pains” which Ms. Porras complained of to her husband on the Friday and Saturday after the surgery.In other words, the smaller clots were not enough to “completely obstruct her lung function” but were enough to diminish that function to the extent of causing her to ‘experience shortness of breath and chest pain. "

We suggest that you read the balance of the opinion, which goes on to discuss hearsay, the present sense exception and summary judgment as well as the balancing of expert opinions and fact observations.

Hsu v Liu & Shields LLP  2013 NY Slip Op 30291(U)  February 7, 2013  Sup Ct, New York County
Docket Number: 400781/12  Judge: Richard F. Braun is the story of how one set of plaintiffs lost this case twice, in fact three times.  Plaintiff is pro-se, and complains that he and other plaintiffs were the defendants in a NASD action. "In 2006 the National Association of Securities Dealers issued a decision against plaintiffs and their brokerage firm.  Plaintiffs' position is that the NASD made a mistake in charging them with violations.  Plaintiffs appealed the NASD decision with the SEC."  They hired defendants to handle the case.  After that it was all downhill.  Plaintiffs allege that defendants "allegedly represented that they would e-file the appeal with the court. Defendants represented the papers were timely filed. Upon plaintiffs’ request, defendants provided plaintiffs with a copy of the allegedly filed notice of appeal. Plaintiffs continued to make inquiry regarding the progress of the appeal, but eventually defendants refused to respond to plaintiffs’ inquiries. Plaintiffs filed a complaint against defendants with the Grievance Committee. Plaintiffs alleged that in responding to the Grievance Committee defendants falsified a letter that defendants had withdrawn as counsel from plaintiffs’ case. Plaintiffs deny receiving any letter, phone call, or email from defendants after February 14, 2008. Other alleged deceptions by defendants were that the SEC decision had never been served on defendants, that the time to appeal had not yet begun to run, and that plaintiffs could still hire another attorney to do the appeal. The Grievance Committee dismissed the plaintiffs’ complaint against defendants. From 2009 to 2011, plaintiffs attempted to appeal the NASD decision. In 201 1, plaintiffs’ action as to the NASD decision was dismissed by the judge because plaintiffs did not appeal the SEC decision, so the appellate remedy was waived. The New Jersey Bureau of Securities used the NASD decision as evidence to revoke plaintiffs’ registrations and assess monetary penal ties against plaintiffs."

"Plaintiffs argue that the legal malpractice claim occurred within the statute of limitations. However, plaintiffs fail to recognize that a legal malpractice claim accrues “when all the facts necessary to the cause of action have occurred” and the court can grant relief (McCoy v Feinman, 99 NY2d 295, 301 [2002]). Plaintiffs’ claim is based on the allegation that defendants failed to timely file an appeal, among other things. Relying on Glamm v Allen (57 NY2d 87, 95 [1982]), defendants note that a claim for malpractice related to a missed deadline accrues when the deadline is missed. The Court stated: “What is important is when the malpractice was committed, not when the client discovered it,” (id.) Plaintiffs also assert a purported fraud claim, forgery, deception, and a breach of agreement, all stemming from the alleged legal malpractice (cf. Melnitzky v Hollander, 16 AD3d 192 [ 1st Dept 20051 [where the fraud and collusion causes of action were dismissed under CPLR 32 1 1 (a) (71, due to their being grounded in the same allegations as the legal malpractice cause
of action]). CPLR 2 14 (6) provides for a three year statute of limitations for “an action to recover
damages for malpractice ..., regardless of whether the underlying theory is based in contract or tort.”  Plaintiffs’ action was not commenced within the three year statute of limitations. The continuous representation doctrine does not apply here. Further, defendants representation was limited to the terms of their agreement with plaintiffs. Therefore, the CPLR 321 1 (a) (5) branch of the motion should be granted."

In Balkheimer v Spanton   2013 NY Slip Op 00715   Decided on February 6, 2013   Appellate Division, Second Department   we see two law firms, and their stellar legal malpractice defense attorneys fighting over who is more responsible to plaintiff.  In a situation such as this, we see the unusual (but not unprecedented) comedy of legal malpractice insurance defense attorneys pointing the finger and claiming legal malpractice was committed.
 

In any event, the lesson to be learned from this case is that after a release there are no more contribution claims, and indemnity claims depend on a separate duty owed by the indemintor to the indemnitee, not based upon duties from the indemnitor to the injured party.

"Pursuant to General Obligations Law § 15-108(b), "[a] release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules." Here, the plaintiffs executed a general release in favor of the third-party defendants. There is no indication in the record that the release was not executed in good faith. Therefore, pursuant to General Obligations Law § 15-108(b), the third-party defendants are relieved from liability to the third-party plaintiffs for contribution (see Ziviello v O'Boyle, 90 AD3d 916, 917; Kagan v Jacobs, 260 AD2d 442). Accordingly, the Supreme Court should have granted that branch of the motion of the third-party defendants which was pursuant to CPLR 3211(a)(5) to dismiss the contribution cause of action in the third-party complaint as barred by the release.

In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the [pleading] 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" (Leon v Martinez, 84 NY2d 83, 87-88). "[T]he key element of a common-law cause of action for indemnification is not a duty running from the indemnitor to the injured party, but rather is a separate duty owed the indemnitee by the [*2]indemnitor'" (Raquet v Braun, 90 NY2d 177, 183, quoting Mas v Two Bridges Assocs., 75 NY2d 680, 690; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 909, 909-910). "

The New York Law Journal reports a Pryor Cashman legal malpractice and billing case today.  It's a very big fee, and Judge Schweitzer decides for the law firm today in Pryor Cashman LLP v. U.S. Coal Corporation, Supreme Court, New York County, Index No. 651908/2011.

"Plaintiff Pryor Cashman LLP moves, pursuant to CPLR 32 12, for summary judgment against defendant U.S. Coal Corporation in the principal amount of$2.455.478.86, with interest, dismissing the counterclaims and affirmative defenses, and awarding it costs and expenses incurred in this action.

US Coal cross-moves for summary judgment on its counterclaims for breach of fiduciary duty; ordering Pryor Cashman to forfeit any fees that US Coal would otherwise owe, and for restitution and disgorgement of all amounts paid for any work done during the relevant time period ; dismissing Pryor Cashman's claims in their entirety; and awarding US Coal the expenses incurred in defending this action, and in prosecuting its counterclaims, including pre- and post-judgment interest, costs, and attorneys' fees.
 

Pryor Cashman argues that there are no issues of fact relating to its account stated cause of action in that it is has demonstrated that it sent 117 invoices to US Coal using regular mailing procedures, none of which were ever returned. US Coal never objected to any of the invoices,
and even made partial payment. As for the breach of contract cause of action, it asserts that US
Coal cannot dispute the existence of the contract, and that both parties performed under the terms
of the contract. It also contends that the investments obtained were inconsequential in terms of
the amount of equity of the company that was outstanding. Moreover, the shares given to the law
firm were given in appreciation of its agreement to defer payment of the attorney's fees owed.

US Coal argues that there are substantial issues of fact concerning the reasonableness and accuracy of the invoices, that the claimed bills do not match US Coal's records, that the mere retention of invoices from a lawyer is not sufficient to prevail on a claim of account stated, and
that Pryor Cashman's violation of applicable ethical standards provides a complete defense. It
disputes that it ever entered into a contract with Pryor Cashman, and argues that New York
regulations require a signed contract or a final written retainer letter. Moreover, it contends that,
even if there were a contract, there are issues of fact and credibility regarding the law firm's
performance of its professional obligations.

For the reasons discussed below, the motion is granted as to both causes of action, and the
counterclaims and affirmative defenses are dismissed. Pryor Cashman establish shed a prima facie entitlement to judgment as a matter of law on the cause of action for an account stated, by demonstrating that it sent detailed invoices to US Coal on a regular basis in the course of its business (Geron v DeSantis, 89 AD3d 603, 604 [1st Dept 2011]), and documentary evidence shows that US Coal received and retained the invoices without objection (Miller v Nadler, 60 AD3d 499 [I Dept 2009]). As set forth in his affidavit, Hellige provided an engagement letter, dated July 17,2006, to Karl Douglas, the then managing director of US Coal. Although US Coal states that it has not found a formal retainer letter executed by Pryor Cashman or by US Coal, it concedes that it has a copy of the engagement letter. The engagement letter set forth the terms of the legal work that Pryor Cashman was to perform for US Coal, including: ( I) the general scope of services (corporate and securities.  For the reasons discussed below, the motion is granted as to both causes of action, and the counterclaims and affirmative defenses are dismissed.

Pryor Cashman established a prima facie entitlement to judgment as a matter of law on
the cause of action for an account stated, by demonstrating that it sent detailed invoices to
US Coal on a regular basis in the course of its business (Geron v DeSantis, 89 AD3d 603, 604
[1st Dept 2011]), and documentary evidence shows that US Coal received and retained the
invoices without objection (Miller v Nadler, 60 AD3d 499 [I Dept 2009]).

As set forth in his affidavit, Hellige provided an engagement letter, dated July 17,2006,
to Karl Douglas, the then managing director of US Coal. Although US Coal states that it has not
found a formal retainer letter executed by Pryor Cashman or by US Coal, it concedes that it has a
copy of the engagement letter. The engagement letter set forth the terms of the legal work that Pryor Cashman was to perform for US Coal, including: ( I) the general scope of services (corporate and securities matters); (2) an explanation of the basis of fees to be charged, and a range of billing rates for the attorneys, law clerks, and paralegals; (3) an explanation of the type of expenses likely to be incurred, and which a~e to be reimbursed by US Coal; (4) an explanation of billing practices,
including its practice of sending a monthly invoice setting forth the fees and expenses incurred
during the previous month, and Pryor Cashman's right to impose interest on balances outstanding
for more than 30 days; (5) an explanation that US Coal is free to terminate the attorney-client
relationship at any time, and that Pryor Cashman will withdraw in a manner that complies with
applicable law; and (6) a discussion about arbitration as the means to resolve disputes regarding
fees charged and services performed.

In challenging the substance of the invoices, US Coal submitted an affidavit it of Michael Brychel, a senior legal auditor in the firm of Stuart, Maue, Mitchell & James, Ltd., sworn to July 9, 20 12. He states that US Coal retained him to review the unpaid legal bills .that are the subject of this action. He concludes that the bills "fall below the prevailing standards of the industry, are consistent with likelihood that Pryor Cashman has overbilled US Coal, and demonstrate that there are substantial issues of fact as to whether those bills are reasonable on their face" (Brychel Affidavit, 20).

The total dollar value of the bills that Brychel reviewed was $4,670,345.23, including
$4,551,826.32 attributed to fees, and $136,547.13, to expenses, with $ 18,028.22 as write-offs
against fees or expenses. In reviewing Pryor Cashman's bills, he noted that it appeared to charge
US Coal in quarter-hour increments, which does not represent the industry standard (tenths of an
hour) that existed during the time covered by the bill s. He opines that large numbers of instances
of 14-hour-plus days represent questionable billing practices, and in the invoices, he noted
$92,970.00 billed in such a manner which constitute "a significant amount."
According to Brychel, another typical hallmark of questionable billing practices is the
presence of large numbers of entries that repeat virtually word for word over multiple days. In
his review, he identified an attorney who regularly committed such billing entries, and
$64,840.67 of the time billed for this attorney appeared to be only partial entries that were too
vague to enable one to accurately discern the task performed. Another $146,466.21 was
attributed to conferences in which no other party is noted, and $380,190.86 where no subject
matter is stated. Brychel noted that $85,437.83 of expenses were "unusually vague," and
$11 ,92 1.96 of those expenses appear to be billing for overhead, not for actual expenses allocatable to specific amounts expended for the client.
 

Regardless of the merits of these objections, US Coal has not met its burden of showing
that they objected to the invoices within a reasonable time

You want to sue your attorney, and the security guard downstairs won't let the process server up.  The process server goes there several times, and fails to get upstairs.  What is one to do?

Miller v Friedman  2013 NY Slip Op 30282(U)  January 29, 2013  Supreme Court, New York County Docket Number: 400833/12  Judge: Joan A. Madden gives one answer.  You should go to the judge, via motion, early on, and ask for expedient service or some other relief.

"In the affidavit of service, Tracy Harris states that on April 16, 17 and 18, 2012, she attempted to deliver the summons and complaint to defendants at their place of business at 217 Broadway, Suite 401, New York, New York, and on each day she spoke to the security officer at the building, Willie Bernard, who told her “defendants were not available,” and he “would not allow me access upstairs.” Ms. Harris further states that on April 18, 2011 ,“I served the parties listed below by mailing a true copy of the attached papers, enclosed and properly sealed in a prepaid envelope, via signature confirmation, next day, priority mail, which I then deposited in a official depository under the exclusive care and custody of the United States Postal Services within the State of New York addressed” to defendants at the 217 Broadway address.

Based on the affidavit of service, it is undisputed that defendants were served by mail alone, which is not sufficient to effectuate service on the individual defendant under CPLR 308 or the defendant law firm under CPLR 3 IO. The CPLR does not permit service by mail alone. Rather, mailing is just one component of personal service, which is required as a follow-up after the summons and complaint are either delivered to a person of suitable age and discretion at defendants’ actual place of business, or affixed to the door of defendants’ actual place of business. 

In opposing the motion, plaintiff requests that the court “use its discretion” pursuant to CPLR 308(5) to “permit service by mail or some other mode crafted by this Court, because there is no other mode of service available.” Plaintiff also requests that the court use its discretion to find that he “need not comply with the strict provisions of the CPLR,” due to his “physical and financial hardship” and the “impracticality of other modes of service.”

Under CPLR 308(5), the court is authorized to permit expedient service where a plaintiff demonstrates that it is “impracticable” to serve a defendant under existing statutory methods.
With respect to service on a natural person, a plaintiff need only establish that service cannot be
made under CPLR 308(1), (2) and (4).Dobkin v. Chapman, 21 NY2d 490,500 (1968)  Significantly, a showing of impracticability does not require plaintiff to establish actual prior attempts by each and every statutory method of service, or require proof of due diligence. Contimortgage Corp v. Isler, 48 AD3d 732,734 (2nd Dept 2008); Franklin v. Winard, 189 AD2d 717 (1” Dept 1993); Saulo v. Noumi, 119 AD2d 657 (2nd Dept 1986). The court is not persuaded that plaintiff has sufficiently shown that service is impracticable within the meaning of CPLR 308(5). Plaintiff states in his affidavit that defendant law firm is located in a office building “manned by a security guard that does not allow citizens access to the building if they do not have an appointment” and “if there is no response from the company after the security guard attempts to contact the company via telephone.”

Even though plaintiff has not established grounds for expedient service pursuant to CPLR 308(5), the court finds that plaintiff has made an adequate showing of good cause pursuant to CPLR 306-b for an extension of time to serve the summons and complaint on defendants. Henneberry v. Borstein, 91 AD3d 493 (1st Dept 2012). Plaintiff shall have 45 days from the date of this decision and order to properly effect service on defendants, and in the event he is unable to do so, the court will reconsider his request for expedient service."

Defendant attorney represented buyer in a real estate transaction, in which she obtained only a part of what she expected to get.  Who was at fault, the attorney or the title company?  The Court decided that the title company was not responsible and the attorney went to trial.  After trial, in which the buyer obtained a verdict, the attorney once again tried to sue the title company.  Result?  Dismissal upon a finding of collateral estoppel.

In Herrick v Statewide Abstract Corp.  2013 NY Slip Op 50152(U)   Decided on February 5, 2013
Supreme Court, Westchester County   Connolly, J.  we see that "Herrick, an attorney, represented Luis and Maria Rojas, who were the plaintiffs in the prior action, in all aspects of the purchase transaction of a parcel of property located at 16 Montana Place, White Plains, New York, from negotiation of the contract of sale through the closing of title. Along with the contract of sale, the purchasers were provided with a survey depicting the property to be purchased. The contract of sale included a legal description of the property attached as Schedule "A," which described the property as a "parcel of land, situate, lying and being in the Town of Greenburgh, County of Westchester, State of New York, known and designated as part of Lot No. 8 as shown on the certain Map . . . ."

In connection with the purchase, Herrick, on behalf of Rojas, ordered a title search and report of the subject property through Statewide and requested that Statewide certify title to Rojas' title insurer, Stewart Title Insurance Company. Herrick provided Statewide with the Schedule "A" legal description of the property and a survey that described the property as a "portion of Lot No.8." Statewide used these documents to conduct its title examination and prepare its title report of the property. This same legal description was included in the title insurance policy issued by Stewart Title, as well as a bargain and sale deed delivered to Rojas from the sellers at the closing held on June 6, 2005. Statewide's title report stated in several places, including in the Schedule B Title Exceptions and in copies of two deeds by which the sellers acquired the property in 2003, that the subject property to be conveyed was only a portion of Lot No. 8. The parcel conveyed to Rojas at closing consisted of approximately .45 acres of land improved by a residential home. The remaining parcel, which the sellers retained, consisted of approximately .34 acres of unimproved land that had been conveyed to the sellers by quitclaim deed in 2003.

Rojas resided at the property until 2007, when they decided to relocate for employment reasons. As part of the relocation process, Rojas' employer offered the services of a relocation [*3]company to purchase the property. The relocation company ordered a title search and report, wherein it was revealed that Rojas did not own the entirety of the parcel of land located at 16 Montana Place, in that only a "portion of Lot No. 8," referred to as the house parcel, was conveyed to Rojas, with the sellers retaining title to the remaining parcel containing unimproved land. Upon discovering that the property consisted of only a portion of Lot No. 8, the relocation company would not accept title to the property.

Rojas thereafter commenced a lawsuit against various defendants, including Statewide, Herrick, Stewart Title, the sellers, the sellers' attorney, and the real estate brokers and agents involved in the 2005 Rojas purchase transaction. The action was entitled, Luis X. Rojas and Maria Rojas v. Andrew Paine, et. al., Westchester County Supreme Court Index Number 27830/07. The Rojas complaint alleged that, despite the fact that the sellers owned two parcels comprising Lot No. 8, the contract of sale and deed purported to sell only a portion of the subject property, the house parcel. The complaint alleged the defendants failed to disclose that the subject property was illegally subdivided by deed into the house parcel and remaining parcel without the permission, consent, or authorization of the Town of Greenburgh, and that due to materially false representations about the true nature and condition of the title issues involving the subject property, Rojas only received the house parcel at the time of closing. Rojas alleged that the illegal subdivision of the parcel created an objection to title, rendering title unmarketable. As is relevant herein, Rojas asserted a cause of action against Herrick for legal malpractice, and asserted three causes of action against Statewide, sounding in breach of contract, negligence, and breach of insurance agreement.

Rojas claimed that Statewide breached its contract with them by failing to properly perform, investigate, and report upon title issues. Rojas also claimed that Statewide negligently, recklessly, and carelessly failed to properly perform, investigate, and report upon title issues and failed to raise an exception to title relative to the illegal subdivision and encroachments. In its answer to the Rojas complaint, Herrick asserted a cross-claim against Statewide for contribution and indemnification, alleging that if the plaintiffs were damaged, such damages were caused by the negligent, intentional, or reckless conduct, acts, or omissions of Statewide and therefore, Herrick would be entitled to judgment over against Statewide for any judgment plaintiff may recover against Herrick.

Following motions to dismiss by the various defendants, the only remaining defendant at the time of trial was Herrick. By decision and order entered on June 29, 2010, the Hon. William J. Giacomo, J.S.C., granted Statewide summary judgment dismissing Rojas' claims for negligence and breach of insurance contract. The court initially denied Statewide summary judgment on the breach of contract cause of action, stating "[i]n view of the fact that the tax lot issue was subsequently discovered . . . there is clearly a question of fact regarding whether Statewide breached its contract with plaintiffs to perform a proper title search which included a notation that the portion of Lot 8 being purchased by plaintiffs was part of a larger lot for which there was no filed subdivision in the Town of Greenburgh." It further held that "[u]nder the contract for searching titles the defendant may be liable for any damages which its negligence [*4]may have imposed upon the plaintiff," and that "liability can arise in the event the search is performed in a negligent manner."

Thereafter, Statewide moved to reargue Justice Giacomo's denial of summary judgment on Rojas' breach of contract claim. The motion was opposed by Rojas, who argued Statewide should be held liable for failing to properly conduct a title search and report title defects. Defendant Herrick also opposed Statewide's motion and moved for summary judgment against the plaintiffs. In Paul Herrick's affidavit dated December 22, 2010, he argued:

"The title report prepared by Statewide . . . was defective in several significant respects. First, the title report failed to disclose that the property plaintiffs had contracted to purchase did not conform with the legal description and was only a portion of the tax lot owned by sellers, Andrew and Karen Paine ("the Paines"). Second, the title report included an outdated tax map, which did not include current including their option to terminate the transaction upon receipt of the title report."

By decision and order dated September 30, 2011, the court granted reargument to Statewide, and upon reargument, dismissed Rojas' breach of contract claim against Statewide.Herrick now commences the instant action against Statewide, seeking contribution and indemnification. The complaint alleges that Statewide negligently performed a search of the public records, and due to Statewide's faulty title search, Herrick was not informed that the property upon which the house parcel was located constituted only a portion of the tax lot. Herrick alleges that had it been properly informed by Statewide that the property was located on only a portion of the tax map, Herrick would have advised Rojas to exercise their contractual rights to rescind the contract and refuse to purchase the property.

Statewide moves to dismiss the complaint pursuant to CPLR § 3211 (a) (1) and (5) on grounds that a defense is based upon documentary evidence and the cause of action may not be maintained because of collateral estoppel and res judicata. Herrick opposes the motion, arguing that it relied upon Statewide's faulty title report in counseling Rojas to purchase the property, which resulted in the damages sustained by Rojas. Herrick claims it was forced to concede liability and accept responsibility for the acts of its agent, Statewide, in preparing a defective title report, and that the issue of Statewide's liability to Herrick was never determined in the prior action.

"The party seeking the benefit of the doctrine of collateral estoppel must establish that the identical issue was necessarily decided in the prior action and is determinative in the present action" Mahler v Campagna, 60 AD3d 1009, 1011 [2d Dept 2009]). "Once the party invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (id.).

Here, Statewide has demonstrated that the identical issue was decided in the prior action and is determinative of the present action, while Herrick has failed to sustain its burden to establish that it lacked a full and fair opportunity to litigate the issue as a party defendant in the prior action. Herrick's recourse, to which it is availing itself, is to appeal from the orders and judgment in the prior action— not to commence a new action with the hope of relitigating the issue in its favor. Because the identical issue was already litigated and decided, and Herrick had a full and fair opportunity to litigate the issue in the prior action, the action against Statewide is dismissed on the ground of collateral estoppel. "

This case appears to be a fee dispute with a healthy counterclaim.  We glean that defendants waited until (and perhaps only because) they were sued for legal fees.  They responded with a legal malpractice counterclaim.  In Debevoise & Plimpton LLP v Candlewood Timber Group LLC
2013 NY Slip Op 00408   Decided on January 29, 2013   Appellate Division, First Department defendants are permitted a legal malpractice counterclaim only as a monetary offset to plaintiff's claims.  They are precluded from a positive award above the claims of plaintiff because of the statute of limitations.

Plaintiffs were permitted only one motion for summary judgment, which they had used for a statute of limitations argument. 

"The court properly found that defendants' legal malpractice counterclaim was time-barred to the extent defendants seek monetary damages (see CPLR 214[6]). The most recent allegation of negligence occurred in May 2006 — more than three years before this action was commenced in November 2009 — and defendants failed to show that the continuous representation doctrine applies. "There were no clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney" (Matter of Merker, 18 AD3d 332, 332-333 [1st Dept 2005] [internal quotation marks omitted]), nor was there "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 [2002]). Defendants did not submit affidavits showing "that facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]). As both sides agree, defendants' malpractice counterclaim is not time-barred insofar as defendants seek to set off their malpractice damages against any recovery plaintiff might obtain (see CPLR 203[d]).

Plaintiff is correct that its second summary judgment motion was not duplicative of its first: Its first motion dealt only with the statute of limitations, whereas its second dealt with the merits of defendants' malpractice counterclaim. However, "[a]s a general rule, parties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment" (NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427 [1st Dept 2011] [internal quotation marks and brackets omitted]). Plaintiff has not demonstrated that any of the exceptions to this rule apply (see e.g. Jones v 636 Holding Corp., 73 AD3d 409 [1st Dept 2010]; Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39 [1st Dept 2002]). "

Attorney is hired to represent funeral home for a disinterment.  In the retainer agreement, it is specifically set forth that the attorney will also be representing the person requesting the disinterment.  A $10,000 retainer is given, and the work begun.  It ends successfully.  When the bill is sent, the funeral home refuses to pay.  We presume that there was some problem between the person and the funeral home.  In any event attorney does not get paid.  McKeon v SCI New Jersey Funeral Serv., Inc.  2013 NY Slip Op 30218(U)  January 29, 2013  Sup Ct, New York County
Docket Number: 112504/11  Judge: Donna M. Mills turns into an account stated case with defendant interposing 17 defenses.  We reproduce Judge Mills' decision, which works through the affirmative defenses.

"Turning to the other relief sought, the court shall considered the merit of the seventeen affirmative defenses which are as follows: ( I ) failure to state a cause of action; (2) unclean hands; (3) waiver; (4) statute of limitations and/or laches; (5) estoppel; (6) breach of contract; (7) violation of the notice provisions; (8) violation of the statute of frauds; (9) churning; (10) unconscionability; (11) violation of the Code of Professional Responsibility; (12) legal malpractice; (13) failure to name a necessary party; (14) third-party liability; (15) failure to mitigate; (1 6) attorneys’s lees unrecoverable; and (1 7) reservation of right to assert additional defenses.

Plaintiff seeks dismissal on the grounds that failure to state a cause of action, lack of
specificity, and/or documentary evidence. In response, defendant argues that the motion to
dismiss is premature, where no discovery has yet been conducted. Specifically, defendant asserts
that the first affirmative defense is not subject to dismissal. Plaintiff acknowledges that said
defense is defined as meaningless surplusage by the Appellate Division, First Department. See
Riland v Todman & Co., 56 AD2d 350, 352 ( 1st Dept, I977), but states that it can be dismissed if
all of the other defenses arc subject to dismissal;See. See Raine v. Allied Artists Prods. v Artists Prods., Inc., 63 AD2d 914 (1st Dept, 1978)

The court shall examine the other defenses.The second affirmative defense seeks relief under the unclean hands doctrine. The partyalleging unclean hands must establish that the party charged committed immoral or unconscionable conduct directly related to the subject matter. See Citibank, N.A. v American Banana Co, Inc.., 50 AD3d 593, 594 (1st Dept 2008). This defense is connected to plaintiff‘sequitable claims in the complaint. The court finds that defendant has not made out a defense that plaintiff’s conduct is so immoral and depraved as to warrant a defense of unclean hands. The second affirmative defense is dismissed.

The third affirmative defense, waiver, alleges that plaintiff had intentionally waived a legal right she had. Defendant does not specify in the answer what legal right had been relinquished by her. The court shall dismiss this defense as lacking in specificity, thus, failing to state a proper defense‘ensue.

The fourth affirmative defense, statute of limitations and laches, alleges that this complaint is untimely. ‘J’he statute of limitations for breach of contract claims is six years from the breach. CPLR 2 13 (2). The retainer agreement was executed on September 30,2009, and this action was commenced in 2011, so there is no statute violation. Defendant’s laches defense is deficient where it fails to alleges some evidence of prejudice in addition to delay. See Steele v Motor Vehicle Acc. Indemnification. Gorp., 39 AD3cl 78, 82 (1st Dept 2007). The fourth affirmative defense is dismissed.

The fifth affirmative defense is estoppel. The doctrine of estoppel would preclude plaintiff from asserting a legal right alter leading defendant to reasonably believe that she did not intend to assert-t this right. ’I’his defense is insufficient‘.. There is no indication that plaintiff  misled defendant into relying on some inconsistent conduct on her part, resulting in prejudice. See BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853 (1st Dept 1985). The allegation that defendant was somehow misled into believing that it would not pay any amount beyond the initial $10,000 is belied by the explicit terms of the retainer agreement. The fifth affirmative defense is dismissed.

The sixth affirmative defense alleges that plaintiff breached the retainer agreement by failing to provide regular communications, and by billing excessive charges. The seventh affirmative defense alleges that plaintiff failed to provide regular notice to defendant while providing legal services. Since the account stated claim has been granted, the allegation of excessive fees is moot as defendant’s demonstrated failure to express timely objection to the fees constitutes acquiescence to the reasonableness of‘the fees. ‘The failure to provide notice is also moot. These defenses are dismissed.

The eighth affirmative defense, violation of the statute of frauds, is not relevant, since the suit involves a written agreement. The eighth affirm alive defense is dismissed. ‘The ninth affirmative defense apparently alleges that plaintiff should be barred from recovering fees because she worked beyond the terms provided by the retainer agreement and overcharged defendant for work outside of that stipulated by said agreement. This defense lacks specificity as to what constituted work beyond the terms of the retainer agreement. The ninth affirmative defense is dismissed.

The tenth affirm alive defense alleges that the retainer agreement is unconscionable and unduly burdensome to defendant. This defense is not specific, and no evidence is submitted to show that this agreement is unconscionable. Moreover, plaintiff has provided evidence that prior to the execution of this agreement, the parties had extensive communications as to specific
provisions related to the payment of fees. Defendant has not provided any proof that he objected
or criticized the provisions prior to execution, or at any other time. The tenth affirmative defense
is dismissed.

The eleventh affirmative defense alleges that plaintiff’s conduct violated the Code of Professional Responsibility. Here, there is no reference to any specific code provision. Also, the claim that plaintiff charged excessive fees unreasonable fees beyond the initial retainer fee is belied by the documentary evidence submitted by plaintiff. ’The eleventh affirmative defense is dismissed.

The twelfth affirmative defense is similar to the ninth one, alleging plaintiffs conduct as
going beyond the scope of her employment, Although it is based on tort, rather than contract. The
court shall dismiss this defense as lacking in specificity.

The thirteenth affirmative defense alleges that the failure to name a necessary party to this action precludes plaintiffs claims. This party is supposedly Philip, the deceased’s son. The court does not find him to be a necessary party, as this retainer agreement was only executed by plaintiff and defendant€defendant, Philip Philip was not intended to be a third-party beneficiary. This affirmative defense is dismissed.

The fourteenth affirmative defense alleges that plaintiffs claims are barred because a third-party is liable for money owed. Defendant has not specified the third-party. Plaintiff has provided documentary evidence, a copy or defendant's’s agreement with Philip, which  provides
that defendant agreed to be responsible for the payment of legal fees concerning the disinterment
and other matters. The fourteenth affirmative defense is dismissed.

The fifteenth affirmative defense alleges h a t plaintiff failed to mitigate her damages. There is no specificity to this defense and it is dismissed.

The sixteenth affirmative defense alleges that plaintiff is not entitled to attorney’s fees. ‘This defense is lacking in specificity. Defendant's’ s previous explanations as to why plaintiff is not entitled to any fees (breach of contract, malpractice) have been rejected by this court. Thus, this defense is dismissed.

The seventeenth affirmative defense alleges defendant’s entitlement to allege additional
affirmative defenses during the course of this action. This is not a proper affirmative defense and
is dismissed.

The court will dismiss all but the first affirmative defense, as it may relate to the remaining causes of action. The other defenses are either deficient in merit or are disproved by documentary evidence.

Millennium Imports LLC marketed a huge success in the vodka world, "Belvedere."  Millennium was itself a golden child of the Louis Vuitton, Moet and Hennessy (LVMH) companies, so when a California winery that already had a wine called Belvedere claimed trade infringement, a small licensing fee of $ 30,000 per year was nothing to worry about.

Later, the winery wrote that it was intending to be associated with a gin to be called Belvedere.  Millennium and LVMH went into high gear, and had multiple law firms look at the situation.  Their solution was to write a strong letter and threaten. The Winery claimed breach of contract and eventually won $ 38 Million.  Who's to blame, and how will the resulting legal malpractice litigation shake out?

"It is well settled that an attorney sued for malpractice may assert a third party claim against another lawyer who advised the plaintiff on the same matter. The leading case on this point is Schauer v Joyce (54 NY2d 1 [1981]). In Schauer, an attorney was sued by his client for malpractice, due to his failure to obtain alimony for his client. He, in turn, asserted a third-party claim for contribution under CPLR 1401 against the lawyer who succeeded him in representing the plaintiff, claiming that the successor lawyer's negligence in failing to properly reapply for alimony contributed to the loss. The Appellate Division upheld the dismissal of the third-party claim, reasoning that the third-party defendant could not be liable for the injury caused to the plaintiff by the third-party plaintiff; in the Court's view, "[t]he extent to which plaintiff either personally or through her agent [third-party defendant] failed to mitigate damages is a matter of defense" (79 AD2d 826, 826 [3d Dept 1980]). But the Court of Appeals reinstated the contribution claim, explaining that:

"CPLR 1401, which codified this court's decision in Dole v Dow Chem. Co. (30 NY2d 143), provides that two or more persons who are subject to [*4]liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.' The section applies not only to joint tortfeasors, but also to concurrent, successive, independent, alternative, and even intentional tortfeasors'" (Schauer, 54 NY2d at 5, quoting Siegel, New York Practice, § 172, p 213; and citing McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1401, pp 362-363).

Not only do we find this reasoning applicable to the third-party claim against the law firm that served directly as plaintiff's counsel, but we also see no basis to find this reasoning inapplicable to the law firms whose allegedly negligent advice was supplied to plaintiff via plaintiff's parent company. It is well settled that attorneys may be liable for their negligence both to those with whom they have actual privity of contract and to those with whom the relationship is "so close as to approach that of privity" (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382 [1992]). Since here the allegations support a finding that the advice of the two firms acting as counsel to plaintiff's parent company was given "for the very purpose of inducing action" on plaintiff's part, the third-party claim against those firms for contribution is actionable (id. at 383).

Even if we agreed that the affirmative defense of comparative negligence precludes a claim for contribution against an agent of plaintiff's, that would only warrant dismissal of the third-party claim against the Berry firm, as counsel to (and agent for) plaintiff. The claim for contribution against the other two third-party defendants could not be viewed as duplicative, since the affirmative defenses did not specifically name them as plaintiff's agents whose alleged negligence defendants sought to impute to plaintiff for comparative negligence purposes. Consequently, the third-party claims would be viable against third-party defendants the Barack firm and the Fross firm in any event.

With respect to the application to dismiss the third-party action without prejudice under CPLR 1010, there is no indication that the third-party complaint will delay the main action. On the contrary, there clearly are efficiencies to be gained from having the claims proceed together.

Accordingly, the judgments of the Supreme Court, New York County (Milton A. Tingling, J.), entered November 15, 2011, July 6, 2011 and July 18, 2011, dismissing the third-party complaint as against third-party defendants James H. Berry, Jr. and Berry & Perkins, Barack, Ferrazzano, Kirschbaum & Nagelberg LLP and Fross, Zelnick, Lehman & Zissu, P.C., respectively, should be reversed, on the law, without costs, the judgments vacated, and the third-party complaint reinstated. Appeals from the orders, same court and Justice, entered March 30, [*6]2011, July 6, 2011 and July 18, 2011, which granted third-party defendants' motions to dismiss the third-party complaint, should be dismissed, without costs, as subsumed in the appeals from the judgments."
 

Often, insurance companies seem opaque and distant.  Their decision making is hidden, individuals seem to have significant power over settlement decisions, and the rules that permit denials of coverage are Byzantine.  Here is a rare look into how the defense bar and the insurance companies interact. Insurance Corp. of N.Y. v Smith, Mazure, Director, Wilkens, Young & Yagerman, P.C.   2013 NY Slip Op 30115(U)   January 23, 2013   Supreme Court, NY County
Docket Number: 102485/08  Judge: Saliann Scarpulla.

"In this legal malpractice action, plaintiff The Insurance Corporation of New York ("Inscorp")alleges that, while representing Inscorp, Joel Simon, Esq. ("Simon"), a member of Smith Mazure, negligently rendered legal advice regarding insurance coverage during telephone conversations in late 2004 and early 2005. Inscorp alleges that Simon negligently counseled Michael Weiss (“Weiss”), a claims adjuster employed by Inscorp’s third-party administrator, Ward North America (“Ward”), that Inscorp was contractually obligated to provide a defense and indemnification to West Perry, LLC (“West Perry”) and G.B, Construction, LLC (“G,B. Construction”) in an underlying Labor Law action.

Specifically, Inscorp alleges that Simon improperly advised Weiss that West Perry, the construction site owner, was an additional insured under an Inscorp general liability policy issued to G.B. Construction, a subcontractor at the site, and that the Inscorp late disclaimers of coverage issued by Ward were improper and untimely, and therefore, invalid. Inscorp alleges that the disclaimers were enforceable on the grounds that West Perry was not an additional insured under the Inscorp policy, and that neither G.B. Construction nor West Perry had satisfied the policy’s notice of claim requirements.

Inscorp also alleges that Simon negligently failed to disclose to Weiss that United National Insurance Group (‘UNG’’) had retained Smith Mazure to secure additional coverage for West Perry under the Inscorp policy, following Inscorp’s failure to respond to UNG’s October 15,2004 tender of West Perry’s defense and indemnity. Inscorp further alleges that UNG’s retention of Smith Mazure created a conflict of interest, inasmuch as Smith Mazure had represented UNG and its insureds over a period of years.

Inscorp alleges that, based on Smith Mazure‘s negligent legal advice, it rescinded ts valid disclaimers to West Perry and G.B. Construction, and expended approximately $73,000 in legal fees in defending G.B. Construction and West Perry, and $490,000 in settling the Soto action on behalf of both companies. In the answer, Smith Mazure denies all allegations of wrongdoing. In this motion, Smith Mazure alleges that, at the time that the alleged misconduct occurred, it had not
been retained by Inscorp or Ward to render an insurance coverage legal opinion for either West Perry or G.B. Construction, and had clearly advised Weiss that it was acting on behalf of UNG when Simon contacted Weiss in 2004 and 2005. Smith Mazure explains that, in November or December 2004, Simon had received a request from Cheryl Mawby (“Mawby”), a UNG senior claims examiner, to commence a declaratory judgment action to compel Inscorp to provide a defense to UNG‘s insured, West Perry, in the Soto action, and Simon had contacted Inscorp to verbally request coverage on behalf of West Perry.

An attorney's simultaneous representation of two adverse parties in a matter, or the failure to disclose such a conflict, may form the basis of a valid claim for legal malpractice. See Hearst v. Hearst, 50 A.D.3d 959, 963 (2d Dept 2008). In determining whether such an attorney- client relationship exists, the court may consider the following factors, among others: whether the parties entered into a fee arrangement; whether a written retainer agreement or other contract exists; whether there was an informal relationship in which the attorney performed legal services gratuitously; whether the attorney actually represented the purported client in an aspect of the matter; whether the attorney excluded the purported client from some aspect of the litigation to protect another client's interests; and whether the purported client reasonably believed that the
attorney represented him or her. Catizone v. WON 71 F. Supp. 2d 365, 368 (S.D.N.Y.
1999) (applying New York law).

Here, the record consists primarily of deposition testimony and affidavits by Weiss and Simon, which establish triable issues of fact regarding whether an attorney-client relationship regarding coverage issues existed between Inscorp and Smith Mazure at the time Weiss and Simon spoke in 2004 and 2005, See Terio v. Spodek, 63 A.D.3d 719,721. (2d Dept 2009).

Contrary to Smith Mazure's contention, the lack of a written retainer agreement for a coverage opinion does not conclusively demonstrate that no attorney-client relationship existed, particularly where, as here, such a relationship previously existed between the parties. See Terio, 63 A.D.3d at 721; Moran, 32 A.D.3d at 91 1. Weiss testified that Inscorp and Ward would not disclaim coverage without a legal opinion, and that Ward's coverage counsel often rendered opinions without retainer agreements and would, on occasion, provide verbal and gratuitous coverage opinions. Similarly, Smith Mazure's failure to bill Inscorp for a coverage opinion is not dispositive, given that Smith Mazure also failed to bill UNG for Simon's conversation with Weiss on December 30, 2004, although Smith Mazure contends that it was representing UNG on that date. It is well settled that an attorney owes his continuous clients a fiduciary duty, even in matters for which the attorney is not specifically retained, and that the breach of this duty can also constitute attorney malpractice. See Cavaliere v. Plaza Apts., Inc., 84 A.D.3d 712,713-714 (2d Dept 201 1). The parties here have raised
triable issues regarding whether Smith Mazure simultaneously represented Inscorp and
UNG, expressly disclosed its representation of UNG, and if so, whether Smith Mazure
obtained Inscorp's consent to the simultaneous representation. Tabnsr v. Drake, 9 A.D.3d
606, 610 (3d Dept 2004). Contrary to Smith Mazure's contention that Inscorp did not retain Smith Mazure to represent West Perry until after the alleged legal advice was given, Weiss' statement that
he would consider extending coverage and accepting the tender, if UNG waived its right to recover the attorneys' fees already expended, is not dispositive. It is not clear from the record whether Weiss believed that he was negotiating with counsel for an adversary, or instructing Inscorp's counsel regarding negotiations with the adversary. "

Straw buyer and fake seller.  Not unheard of terms in real estate transactions.  They are bad enough, but then the escrow monies on their way to pay off the earlier mortgage go missing.  Who's to blame?

In Khadidiatou Bah v Stuart   2013 NY Slip Op 30171(U)   January 17, 2013  Supreme Court, New York County  Docket Number: 113354/06  Judge: Joan M. Kenney we see that  "Briefly, on August 22,2005, plaintiff Bah purchased real property located at 721 Commonwealth Ave., Bronx, NY (the property), from Karamoko Diabi (seller). The price of the property was $360,000.00 and in connection with the purchase, Bah obtained a mortgage from WaMu in the amount of $328,000.00.
The seller had a prior mortgage on the property in the amount of $305,733.54, to be satisfied with the proceeds of the sale of the property. Plaintiffs allege that at the closing, on August 22,2005, CILMI & Associates (CILMI), on behalf of WaMu, issued a check to satisfy the prior mortgage to Beneficial. Allegedly, those funds were stolen and converted by co-defendants Stuart, Beneficial, and Dalley, and not used to satisfy the prior mortgage; all of this after Stuart told CILMI, and plaintiffs that the money was needed in escrow to secure the title insurance from Commonwealth. The escrow account was created by Union National Abstract, LLC (Union), Commonwealth's policy-issuing agent. CILMI believes that because Union is an agent of Commonwealth then Cal Stuart is an agent of commonwealth, because he pushed for the money to be placed into the escrow account. Commonwealth issued the title insurance policy to WaMu for the closing of the property. Third-party-plaintiff alleges that not only is Commonwealth responsible for insuring this loss, but that Cal Stuart was an agent working for Commonwealth, making Commonwealth  culpable for some of the loss. (see also, The third-party summons and complaint, annexed as Exhibit B to the moving papers). The third-party summons and complaint filed against Commonwealth by CILMI alleges that Commonwealth should be responsible for contribution should WaMu prevail against CILMI."

"“Contribution is generally available as a remedy ‘when two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owe to the injured person,’ (Garrett v Holiday Inns, 58 NY2d 253 ..., quoting Smith v Sapienza, 52 NY2d 82 ...). ‘A contribution claim can be made even when the contributor has no duty to the injured plaintiff..’(Raquet v Braun, 90 NY2d at 182). In such situations, a claim of contribution may be asserted if there has been a breach of duty that runs from the contributor to the defendant who has been held liable. The ‘critical requirement’ for apportionment by contribution under CPLR Article 14 is that ‘the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought.’(Trump Vill. Section 3, Inc. v New York State Hous. Fin. Agency, 307 AD2d 891 [ 1 st Dept. 2003). CPLR 1401 states that “two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.” A right to indemnity, as distinguished from contribution, is not dependent upon legislative will, but springs from contract, express or implied, and full, not partial reimbursement is sought. (McDerrnott v City of New York, 50 NY2d 211[1980). Pursuant to CPLR 1007, “After the service of his answer, a defendant may proceed against a person not a party who is or may be liable to that defendant for all or part of the plaintiffs claim against that defendant ...” Further, 1007 also states that “suits against a third party can only be maintained for contribution or indemnification claims.” (Phoenix Erectors, LLC v Fogarty, 90 AD3d 468 [1st Dept. 2011]). Commonwealth’s self-serving statement that they had no privity with CILMI is unsupported by admissible evidence and is insufficient, at this juncture, to grant the application to dismiss the third-party complaint. It is noted that Commonwealth may still be liable for all or part of the claims asserted by p1aintiff Whether it be contributory or full indemnification, Commonwealth may be liable as the principal to Cal Stuart, the principal to Union, or as the insurer of WaMu. However, the exact nature of the relationships between Commonwealth and the parties to this action during the course of the transaction and sale of the property has not been conclusively established by admissible documentary evidence, no doubt due to the fact that discovery on this 2006 matter is not complete. In fact, it is asserted that discovery on this matter has yet to begin."

Gallet Dreyer & Berkey, LLP v Basile  2013 NY Slip Op 30101(U)  January 16, 2013  Supreme Court, New York County  Docket Number: 109687/11  Judge: Donna M. Mills is a recently decided case that touches on three themes.  The first is legal malpractice cases after settlement, the second is privity and the third is hindsight.  Plaintiffs move forward with many but not all of their claims still alive.

"H&P was retained in 2006 to represent Ms. Holm in an existing Surrogate’s Court  action seeking to revoke an irrevocable trust into which the bulk of Ms. Holm’s assets had been transferred. That action was commenced two months after Ms. Holm married the significantly younger Mr. Basile, and her sons, as trustees, fought the revocation. Gallet was initially retained by Mr. Basile to defend him at a deposition in the Surrogate’s Court Case.

The Surrogate’s Court matter was concluded with all parties entering into a Stipulation of Settlement while a motion for summary judgment by Holm’s sons was pending. The Stipulation provided for the payment of costs associated with Ms. Holm’s living expenses on a monthly basis as well as a cash allowance per month to be paid from the Trust. With respect to a farm property located in New Jersey (the “Farm”) that was transferred to her sons by Ms. Holm in 2002 and 2003, the Stipulation specifically acknowledged the validity of that transfer and specified that Trust funds were not to be used for the upkeep of the Farm, and discontinued an action commenced by summons with notice relating to the transfer of the Farm. A complaint was never filed in that matter
and Ms. Holm never retained H&P to perform any services with respect to that matter. The stipulation also addressed various loans made by Ms. Holm to her sons, setting forth the rates of interest, and that the loans were forgiven upon her death. The Stipulation further provided for the distribution of Ms. Holm’s estate upon her death, one-third to each son and one-third to Mr. Basile with applicable reductions for each. Also pursuant to the settlement, the Trust was to be funded by a refinance of Ms. Holm’s apartment. The crux 6f the allegations in the third-party complaint is that in hindsight, the settlement of the underlying Surrogate’s Court action, allegedly constituted malpractice.

As is set forth in the third-party complaint, Gallet was initially retained by Mr. Basile to defend him at a deposition in the Surrogate’s Court Case. Mr. Basile executed a retainer agreement for the legal service of his own separate and independent, in connection with the lawsuit commenced by his wife, Ms. Holm in the Surrogate’s Court. The third-party complaint admits that while Ms. Holm retained HBP, Basile retained Gallet as his attorneys. The complaint further admits that while Ms. Holm was invoiced for legal services by H&P, Mr. Basile was invoiced for legal services by Gallet.
In opposition to the motion to dismiss, Mr. Basile argues, inter alia, that H&P was his counsel by virtue of a “joint representation” of Ms. Holm and Mr. Basile by both H&P and Gallet. Mr. Basile argues that H&P communicated nearly exclusively with him regarding litigation of the Surrogate Court Case, the State Court Case and related matters. Mr. Basile annexes e mails purporting to show that H&P established a relationship in privity, or sufficiently near privity, to support his malpractice cause of action against it.

“[A] relationship of near privity may ... be sufficient to sustain a legal malpractice claim” only in cases where there is negligent misrepresentation ( Federal Ins. Co. v North American Specialty Insurance Co., 47 A.D.3d at 60, 847 N.Y.S.2d 7) and, here, although the third-party complaint alleges that Gallet and H&P made negligent misrepresentations upon which the third-party plaintiffs relied, in light of the fact that the third-party plaintiffs were separately represented by counsel, any justifiable reliance on the purported negligent misrepresentation can only be directed at their own retained counsel. Moreover, contrary to the contention of third-party plaintiffs, their unilateral belief that they had an attorney client relationship with each others counsel, in addition to their own, does not by itself confer upon them the status of clients of their spouses’ counsel.
Since Ms. Holm and Mr. Basile clearly had separate representation in the underlying litigations, they cannot now argue that they were in privity or near-privity with each others lawyers, notwithstanding the fact that both law firms worked closely together and engaged in discussions and decisions jointly. As such, the documentary evidence submitted in support of the third-party defendants’ motion to dismiss, clearly proves that Gallet solely represented Mr. Basile in the underlying actions, and that H&P solely represented Ms. Holm.

According to the third-party complaint, H&P and Gallet’s purported malpractice arises from three instances of alleged negligence: (I) the purported failure to conduct due diligence relating to the ownership of the apartment; (2) the failure to prosecute the Supreme Court Action; and (3) that they were forced to enter into the Stipulation of Settlement which caused them to lose access to certain assets. “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., 160A.D.2d 428,430,554 N.Y.S.2d 487 [I 9901 [citation omitted] ). The third-party complaint alleges that, but for third-party defendants’ negligence in failing to conduct due diligence and the consequential erroneous advice based on this failure, third-party plaintiffs would not have executed the stipulation in the Surrogates Court action, and would have received either a higher settlement or trial verdict. These allegations are sufficient to withstand a CPLR 321 I (a)(7) motion."

Wadsworth Condos LLC sought to develop a condominium building, and took on others as kind-of partners, but really as tenants in common.  What developed thereafter led to problems with municipal entities, a lot of money spent and  a legal malpractice case, Wadsworth Condos LLC v Dollinger Gonski & Grossman   2013 NY Slip Op 30149(U)   January 22, 2013   Sup Ct, New York County   Docket Number: 600899/2009  Judge: Louis B. York discusses both legal malpractice and associated professional negligence.

"Summary judgment is a drastic remedy which is granted only when the party seeking summary judgment has established that there are no triable issues of fact.  Andre v Pomeroy, 35 NY2d 361, 364 (1974). The burden then shifts to the motion's opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1 st Dept 2006). "In considering a summary judgment motion, evidence should be analyzed in the light most favorable to the party opposing the motion." Martin v Briggs, 235 AD2d 192, 196 (1st Dept 1997). "On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact.'' S .I. Capelin Assocs., Inc.. v Globe Mfg.. Corp., 34 NY2d 338, 341 (1974); see Psihogios v Stavropolis, 269 AD2d 295,296 (1st Dept 2000) (holding that issues of credibility should be left for resolution by the trier of fact). Here, there is a clear dispute raised by the testimony of Joe Bobker and Dollinger. While Dollinger slates that the litigation against Fischer was authorized, Joe Bobker disagrees, and states that this litigation was not authorized, and that Dollinger was specifically told not to commence the litigation against Fischer.

There also remains questions of fact as to whether Dollinger's work for 43 Park
conflicted with the interests of the tenancy in common and the management agreement, and
whether Dollinger did or did not contribute to delays in the litigation which resulted in damages.
Therefore, because here are issues regrading the credibility of the witnesses, as well as issues of
fact regarding Dollinger's work, Dollinger and the Dollinger law firm's motion for summary
.judgment must be denied."

The Appellate Division avoided rubber stamping a summary judgment decision, and took a longer and closer look at the underlying case.  In this particular instance it affirmed, but did not simply say that settlement of the underlying case ended the discussion.  In Bellinson Law, LLC v Iannucci
2013 NY Slip Op 00395   Decided on January 24, 2013   Appellate Division, First Department it decided that : "In this action by plaintiff law firm seeking legal fees owed by defendant pursuant to a retainer agreement, plaintiff made a prima facie showing of entitlement to judgment as a matter of law. In opposition, defendant failed to raise triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). With respect to his counterclaim for legal malpractice, defendant failed to raise a triable issue as to whether plaintiff's alleged negligence proximately caused his damages and whether the claimed damages were actual and ascertainable (see Wo Yee Hing Realty, Corp. v Stern, 99 AD3d 58, 62-63 [1st Dept 2012]; see also Reibman v Senie, 302 AD2d 290, 290 [1st Dept 2003]). The record does not support defendant's contention that he was forced to settle the underlying action because plaintiff was incompetent and unprepared on the eve of trial. Indeed, even if plaintiff was negligent, there is evidence in the record indicating that defendant had other options besides settling the case (see Fusco v Fauci, 299 AD2d 263 [1st Dept 2002]). Further, defendant's claimed damages could not be construed as actual and ascertainable, given that the bulk of the claimed damages in the underlying action were, at the time of settlement, subject to potential dismissal (see generally Markard v Bloom, 4 AD3d 128, 129 [1st Dept 2004], lv denied 2 NY3d 706 [2004]).

With respect to defendant's fraud-based counterclaim, defendant failed to offer proof of [*2]injury arising from plaintiff's allegedly misleading claims of federal court trial experience (see generally Small v Lorillard Tobacco Co., 94 NY2d 43, 57 [1999]). "

 

Accusing an attorney of legal malpractice may have dangerous consequences, but, as in all things, the details matter.  To whom you make the accusation is very important.  Make it to just anyone, and there might be a good defamation law suit; make it to another concerned attorney and it could be permissible.

In Sklover v Sack  2013 NY Slip Op 00323  Decided on January 23, 2013  Appellate Division, Second Department, plaintiff's defamation claim fails because the words were communicated to another concerned party.   "Even if the offending statements are actionable assertions of fact rather than nonactionable expressions of opinion (see generally Mann v Abel, 10 NY3d 271, 276, cert denied 555 US 1170), the statements are protected by the absolute privilege for statements made in a judicial proceeding. A statement made by counsel in the course of a judicial proceeding, even if made with malice or bad faith, "is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation" (Martirano v Frost, 25 NY2d 505, 507; see Rabiea v Stein, 69 AD3d 700, 700; Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163, 171). The statements at issue were made among counsel in a pending judicial proceeding, and were pertinent to a dispute over the proceeds of the settlement in the federal action (see Rabiea v Stein, 69 AD3d at 701; Sexter & Warmflash, P.C. v Margrabe, 38 AD3d at 175-176; Impallomeni v Meiselman, Farber, Packman & Eberz, 272 AD2d 579, 580; cf. Ingber v Mallilo, 52 AD3d 569, 570). Furthermore, the statements were pertinent to the settlement of a prospective legal malpractice litigation (see Vodopia v Ziff-Davis Publ. Co., 243 AD2d 368; Lieberman v Hoffman, 239 AD2d 273). Accordingly, the statements are protected by an absolute privilege, and the Supreme Court should have denied the plaintiff's motion and granted the defendants' cross motion for summary judgment dismissing the complaint. "

Often enough, Courts have applied res judicata broadly to the question of attorney fee disputes and a later legal malpractice issue.  As a blackletter rule, if an attorney asks the court to set a fee, and it does, that act bars plaintiff from bringing the legal malpractice case on the theory that fees may not be awarded if there has been legal malpractice, and so the award of the fee disposes of the question of whether there was legal malpractice.

In Soni v Pryor   2013 NY Slip Op 00324   Decided on January 23, 2013  Appellate Division,   Second Department a more nuanced approach was taken.  "plaintiffs retained the defendants to represent them in an action commenced against the plaintiffs alleging that the plaintiffs had engaged in certain wrongful acts as directors and officers of several corporations. The parties subsequently had a fee dispute, which was resolved in an arbitration proceeding conducted pursuant to part 137 of the Rules of the Chief Administrator of the Courts (22 NYCRR 137.0-137.12; hereinafter part 137). The panel of arbitrators awarded the defendants the sum of $48,103.75, the full amount in dispute, and the arbitration award was confirmed by the Supreme Court in a proceeding commenced pursuant to CPLR article 75. The plaintiffs subsequently commenced this action alleging that the defendants had committed legal malpractice and breach of contract by failing to investigate whether there were insurance policies issued to the corporations that would have covered the attorney's fees, defense costs, and loss incurred by the plaintiffs in the underlying action.

The Supreme Court should have denied that branch of the defendants' motion which was to dismiss the complaint on the ground that the complaint is barred by the doctrines of collateral estoppel and res judicata. Part 137 expressly provides that it does not apply to "claims involving substantial legal questions, including professional malpractice or misconduct" (22 NYCRR 137.1[b][3]). As such, the defendants failed to sustain their burden of demonstrating that all of the issues raised in the instant action which are or may be determinative thereof were necessarily decided in the arbitration proceeding, or in the proceeding to confirm the arbitration award (see Mahler v Campagna, 60 AD3d 1009, 1011-1012). Moreover, in opposition to the motion, the plaintiffs [*2]submitted an affidavit of the plaintiff Om P. Soni, in which he stated that the arbitration panel refused to consider issues regarding the quality of the legal services performed by the defendants, and this evidence was sufficient to demonstrate that, in any event, the plaintiffs lacked a full and fair opportunity to litigate the issues raised in the instant complaint (see id. at 1012). "

Yesterday we looked at Chibcha Rest., Inc. v David A. Kaminsky & Assoc., P.C. 2013 NY Slip Op 00281   Decided on January 22, 2013 Appellate Division, First Department  for the question of how much a plaintiff must show, and the difference between missing a deadline and almost all other claims.
 

Today, we look at the same case for a lesson in Judiciary Law 487.  For reasons, mostly unexplained, the JL 487 claim was dismissed, because it was brought in a plenary action, after arising in a fee dispute.  The AD affirmed Supreme Court's dismissal and held that plaintiff's remedy was to move to vacate the fee dispute result, rather than bring this plenary claim.

"The motion court properly dismissed the cause of action alleging a violation of Judiciary Law § 487. Plaintiffs' allegations stem from defendants' alleged misconduct in connection with a fee dispute in Civil Court. Accordingly, "plaintiff's remedy lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the civil judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action" (Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215 [1st Dept 1995]). "

Although a demonstrated lack of skill and a failure to prepare for litigation might, on its face, seem proper fodder for a legal malpractice case, in Chibcha Rest., Inc. v David A. Kaminsky & Assoc., P.C.   2013 NY Slip Op 00281   Decided on January 22, 2013   Appellate Division, First Department the court held:  "Plaintiffs' allegations that defendants made "no useful attempt" to argue against a TRO sought and obtained by the landlord, and that defendants were both unprepared and unskilled in defending them, do not suffice. As the motion court observed, plaintiffs do not allege, for example, that defendants missed any deadlines or otherwise failed to protect or preserve plaintiffs' rights (see Mortenson v Shea, 62 AD3d 414, 414-415 [1st Dept 2009]). "

This case demonstrates the bold difference between a failure to file within a deadline, and almost all other shortcomings.  Presentation of a certain witness, selection of an expert, questions put in cross-exam.  All very important, but none of them a failure to file within a deadline or a failure to preserve a client's rights.

The Court explains further: "Contrary to plaintiffs' assertions, the record supports the motion court's conclusion that plaintiffs' damages, sustained from the closing of the subject premises after issuance of the TRO, were not caused by defendants' conduct, but rather by plaintiffs' failure to obtain the necessary insurance before the landlord brought its motion for a temporary restraining order. Plaintiffs concede that the insurance coverage required by the lease initially was not in place, and that the TRO against them was lifted only after the requisite insurance was obtained. As the premises were closed due to the lack of insurance, it cannot be said that plaintiffs would not have incurred any damages, but for defendants' purported negligence (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007])."

In our article on Matrimonial Legal Malpractice and settlements in to days New York Law Journal we discuss the recent line of cases which disturb the well settled principal that a legal malpractice case after settlement is permitted where the settlement was "effectively compelled" by the mistakes of counsel.

This new line of cases, starting with Katebi v. Fink has upended a well understood principal of legal malpractice and created much uncertainty.  The rest can be seen in today's New York Law Journal Outside Counsel Column.

We were recently asked whether an Expert, testifying in a legal malpractice case can commit legal malpractice during testimony in the case. We discussed whether there was an attorney-client relationship, and whether "absolute immunity" for in-court testimony applied. Now, Levine v Harriton & Furrer, LLP ; 2012 NY Slip Op 01401 ; Appellate Division, Third Department discusses the same subject, this time for an engineer.
 

"Plaintiff, a licensed professional engineer, was retained to provide services in connection with a personal injury claim in the Court of Claims against the State of New York arising from an alleged highway defect. The claim was subsequently transferred to defendant, a law firm in the Village of Round Lake, Saratoga County, and plaintiff was again retained. The parties initially proceeded upon an oral agreement. In February 2006, plaintiff submitted a written retainer agreement to defendant setting forth a retainer fee and establishing hourly charges and fees, among other things. Defendant paid the retainer fee and, on the claimant's behalf, returned the agreement to plaintiff, without signature. Plaintiff subsequently provided services and submitted bills periodically to defendant. Defendant made payments through December 2007, when the trial was completed; thereafter, defendant made no further payments but did request continuing services, which plaintiff provided. In May 2008, the Court of Claims rendered a determination dismissing the claim upon the ground that negligence had not been proven. Plaintiff allegedly continued to submit invoices for payment of the outstanding balance due through October 2008, but received no response. After plaintiff's counsel contacted [*2]defendant, defendant responded in writing in November 2008, refusing to pay and alleging that the unfavorable determination of the claim had resulted from plaintiff's professional malpractice. "

"Defendant's objections were not primarily grounded in the particulars of the invoices; instead, the central contention is that the failure to pay for plaintiff's services was justified by his alleged malfeasance. However, this claim was not supported by an expert affidavit opining that plaintiff's services "deviated from accepted industry standards" and that this failure proximately caused the loss of the claimant's case (Columbus v Smith & Mahoney, 259 AD2d 857, 858 [1999]; see Travelers Indem. Co. v Zeff Design, 60 AD3d 453, 455 [2009]). Contrary to defendant's claim, the decision of the Court of Claims does not replace such an expert opinion. Although that court criticized some of plaintiff's methods, it made no finding as to his competence beyond the requisite assessment of the credibility of the conflicting expert opinions. The mere fact that the Court of Claims found plaintiff's opinions less credible than those of the opposing experts is insufficient to present a factual issue as to whether his performance was substandard; such determinations are necessarily made whenever the opinions of experts are in conflict. Further, the court explicitly stated that its determination was not based solely on credibility, but also on its factual conclusion that the subject accident was proximately caused by driver error, and not by a highway defect.
 

State Court cases may be removed to Federal Court in two instances.  One is where there is complete diversity of citizenship and the requisite dollar-damage amounts; the second is where the claim "arises" under federal law.  One such instance may be questions of legal malpractice in the patents area.  We are certainly aware of case law in the SDNY in which such arguments were decided with mixed results.  Today, we read of a US Supreme Court case that may clear up the dispute.  In Gunn v. Minton, No. 11-1118, U.S. Sup Ct. the question is simply whether the legal malpractice case should be heard in state or federal court.

"The central question is whether legal malpractice claims against attorneys representing the inventors, for failing to raise an “experimental use” defense to the “on-sale bar” doctrine, constituted a question of exclusive state law, or one of exclusive federal jurisdiction and law – like traditionally all Patent Law issues. The issue turns on whether such a state court claim can create or affect Federal patent rights."

Lexis-Nexis writes: "At oral argument, Webre said the Federal Circuit's rulings "improperly conflate the question of necessity of a federal issue with the question of whether that issue is substantial," representing a "total disregard [of] a proper balance of the state and federal interests."

"The Federal Circuit announced that there's an interest in - federal interest in uniformity of patent law, and then that was that. That was the end of the inquiry. There is no balance if you don't look at the state interest on the other side. And in legal malpractice cases in general and in Mr. Minton's claim in particular, there are substantial state interests. There is the general interest, the right of a state to develop its own state claims, its own state law and its own state courts. But there is also a state interest in governing the relationship between attorney and client that happens through the legal malpractice process," Webre added.

When asked by Justice Sonia Sotomayor whether an allegation of malpractice involving the PTO would qualify for "arising under" jurisdiction, Webre answered in the negative. Though such a scenario would "be a more substantial federal question than the one presented here," Webre nonetheless said no "arising under" jurisdiction exists because "it involves only a hypothetical actual set of patent rights."

"No judgment that can happen in a state legal malpractice case actually impacts any patent rights," Webre replied.

Disputed, Substantial Issues

By contrast, Thomas M. Michel, representing Minton, urged the Supreme Court to affirm. The state district court "made holdings about . . . whether . . . the experimental use exception is a question of law or a question of fact," as well as a determination that "knowledge of the buyer is conclusive, rather than a factor" to be considered, Michel argued.

"Those are all . . . disputed, substantial issues of federal patent law," he added.

To reverse the Texas Supreme Court could also burden the PTO, Michel warned, because the agency "will have to take . . . as guidance" the state district court's injection of a "brand-new requirement" that an expert witness must testify to establish an experimental use testing exception. In addition, Michel said a reversal would free state courts to choose whether they will interpret and apply Federal Circuit precedent; should they choose not to, it could subject patent attorneys to varying standards and regulations on a state-by-state basis. Justice Antonin Scalia was not persuaded by the argument, however, asking Michel, "Why is that worse than the fact that if it goes to federal court, all of the lawyers in the state in all malpractice cases are going to be supposedly bound by the federal court's holding as to state issues of malpractice?"

"I mean, it seems to me it's Twiddle Dum or Twiddle Dee, whichever court system you go to, you are going to terrorize the lawyers of that state on the basis of an opinion of a court that is not dispositive on those issues," Scalia added.

Minton is represented by Michel and Robley E. Sicard of Griffith, Jay & Michel in Fort Worth, Texas; Coyt Randal Johnston, Robert L. Tobey and Coyt Randal Johnston Jr. of Johnston Tobey in Dallas; Theodore F. Shiells of Shiells Law Firm in Dallas; Gregory W. Carr of Carr in Frisco, Texas; and Daniel R. Ortiz of Charlottesville, Va. The petitioners are represented by Webre of Scott, Douglass & McConnico of Austin, Texas."
 

Melcher v Greenberg Traurig, LLP   2013 NY Slip Op 00256   Decided on January 17, 2013
Appellate Division, First Department  is extraordinary.  It's special for the facts, and for two holdings and the re-statement of a much overlooked principal all seriously affecting calculation of the statute of limitations. Now settled is the correct S/L statute for Judiciary Law 487, and whether there is a discovery statute applied.   Note the names of the appellate players.
 

First:  An "action to recover upon a liability, penalty or forfeiture created or imposed by statute . . ." must be commenced within three years (CPLR 214[2]). A cause of action under Judiciary Law § 487 is purely statutory in nature and therefore subject to the three-year statute of limitations. Judiciary Law § 487 "is a unique statute of ancient origin in the criminal law of England" (Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]).  

From the dissent:  While we previously held that a cause of action pursuant to Judiciary Law § 487 did not give rise to "a unique form of liability unknown at common law," and was thus governed by a six-year statute of limitations (Guardian Life Ins. Co. of Am. v Handel, 190 AD2d 57, 62-63 [1st Dept 1993]), it is now well settled that Judiciary Law § 487 "is not a codification of a common-law cause of action for fraud. Rather, section 487 is a unique statute of ancient origin in the criminal law of England" (Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Accordingly, pursuant to CPLR § 214(2), a cause of action pursuant to Judiciary Law § 487 is "an action to recover upon liability, penalty or forfeiture created or imposed by statute," and is thus governed by a three-year statute of limitations.
 

Second: An action seeking damages under Judiciary Law § 487 must be commenced within the longer of three years from the time of the underlying deceit or collusion or within two years from the time the deceit or collusion was discovered, or with reasonable diligence, could have been discovered (CPLR 214[2]; see CPLR 203[g]; cf. Sargiss v Magarelli, 12 NY3d 527, 532 [2009]).

Third:  Causes of action do not necessarily accrue at the time of occurrence;  they may accrue later when all facts necessary have occurred including damage.  "A cause of action accrues, for the purpose of measuring the period of limitations, 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" (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 221 [1996] [internal quotation marks omitted]).

In the past several years we've been given unprecedented access to court records.  No more is it necessary to travel to the courthouse to review a file, nor must we wait for the clerk to mail (or not mail) a decision.  However, access to written decisions is not universal.  in Bullfrog, LLC v Nolan
2013 NY Slip Op 00168  Decided on January 16, 2013  Appellate Division, Second Department
we are able to read the AD decision, but the Supreme Court decision is not on-line.  While we can look and see the date it was decided, and the type of motion which was decided, no scan of the decision is available, so we cannot say what the Supreme Court judge saw that the Appellate Division differed with.

"An action to recover damages for legal malpractice must be commenced within three years after the accrual of the cause of action (see CPLR 214[6]). Here, the defendant Kevin Barry (hereinafter the appellant) sustained his initial burden on that branch of his motion which was to dismiss the cause of action to recover damages for legal malpractice by demonstrating that the applicable limitations period had expired with respect to the alleged acts of legal malpractice. Contrary to the Supreme Court's determination, the evidence submitted by the plaintiff in opposition was insufficient to raise a triable issue of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations (see Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel & Conway, LLP, 52 AD3d 566, 567-568; Melendez v Bernstein, 29 AD3d 872, 873; Dignelli v Berman, 293 AD2d 565, 566; Muller v Sturman, 79 AD2d 482, 486-487). Accordingly, the cause of action to recover damages for legal malpractice should have been dismissed as time-barred. [*2]

The appellant was also entitled to summary judgment dismissing the plaintiff's cause of action for replevin insofar as asserted against him. The appellant established, prima facie, that he did not unreasonably refuse to return the documents requested by the plaintiff (see Khoury v Khoury, 78 AD3d 903, 904; Wiel v Curtis, Mallet-Prevost, Colt & Mosle, 66 Misc 2d 466, 469, affd 36 AD2d 1027, affd 30 NY2d 500). In opposition to the motion, the plaintiff failed to raise a triable issue of fact. The Supreme Court, therefore, should have granted that branch of the appellant's motion which was for summary judgment dismissing the cause of action for replevin insofar as asserted against him. "

Plaintiffs in legal malpractice suits are often in financial distress, and bankruptcy filings loom.  When a petition in bankruptcy is filed, significant changes to the debtors' estate may take place.  There are differences when the filing takes place, and each of the three major chapters have different results, whether Chapter 7,11 or 13.  Here, in a decision written by Justice Whelan is a well presented discussion.  West v Young   2013 NY Slip Op 23011   Decided on January 15, 2013   Supreme Court, Suffolk County   Whelan, J.
 

"The object of a bankruptcy proceeding commenced under Chapter 7 of the Bankruptcy Code is to provide the debtor with a "fresh start" upon discharge by the liquidation of all non-exempt property in the bankruptcy estate for the benefit of creditors. Pursuant to 11 USC §541(a)(1), the bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case" including, contingent civil claims for damages possessed by the debtor (11 USC §541[a][1]). It also includes "any interest in property that the estate acquires after the commencement of the case" (11 USC §541[a][7]). Referred to as a catchall provision, §541(a)(7) embodies the principle that the estate, having a separate legal identity from the debtor, is an active entity comprised of not only property interests the debtor held at the commencement of the case, but of property the estate itself generates while operating under the aegis of the Bankruptcy Code (see Wade v Bailey, 287 B.R. 874, 880—881 [S.D.Miss.2001]). It does not, however, serve as an independent basis for the creation of estate property. By its express terms, §541(a)(7) only operates when property is encompassed within the estate in the first instance, after which time any property generated by that estate property becomes, itself, included in the estate (see In re Doemling, 116 B.R. 48, 50 [Bankr.W.D.Pa.1991]).

Once an asset is deemed to belong to the bankruptcy estate, the asset may no longer be controlled by the debtor (see Matter of Educators Group Health Trust, 25 F.3d 1281, 1284 [C.A 5 1994]). It is thus clear that a bankruptcy trustee appointed in a Chapter 7 proceeding has the exclusive authority to prosecute a non-bankruptcy cause of action belonging to the estate (see Matter of New Era, Inc., 135 F.3d 1206 [C.A. 7 1998]; Matter of Educators Group Health Trust, 25 F.3d 128, supra; Matter of S.I. Acquisition, Inc., 817 F.2d 1142, 1153—54 [C.A. 5 1987]; Long Is. Forum for Tech. v New York State, 85 AD3d 791, 925 NYS2d 535 [2d Dept 2011]). It is equally clear that a debtor is required to schedule such causes of action as assets on the bankruptcy petition so that the trustee can determine whether the claims should be abandoned or administered by the bankruptcy court for the benefit of the creditors (see Dynamics Corp. of Am. v Marine Midland Bank—New York, 69 NY2d 191, 195—196, 513 NYS2d 91 [1987]; Tri-State Sol-Aire Corp. v Martin Assoc., Inc., 7 AD3d 514, 776 NYS2d 99 [2d Dept 2004]; Mehlenbacher v Swartout, 289 AD2d 651, 734 NYS2d 290 [3d Dept 2001]). If an estate cause of action is not listed in the schedule of [*3]assets, it cannot be deemed to have been abandoned by the trustee (see 11 USC §554), and such cause of action remains the property of the estate (see 11 USC §554[d]; First Natl. Bank of Jacksboro v Lasater, 196 U.S. 115, 25 S.Ct. 206 [1905]). A debtor has thus been held to lack the legal capacity to sue on all such undisclosed claims during or subsequent to the close of a Chapter 7 bankruptcy proceeding (see Dynamics Corp. of Am. v Marine Midland Bank—New York, 69 NY2d at 195—196, supra; Whelan v Longo, 23 AD3d 459, 808 NYS2d 95 [2d Dept 2005], affirmed 7 NY3d 821, 822 NYS2d 751 [2006]; Santori v Met Life, 11 AD3d 597, 599, 784 NYS2d 117 [2004]; Coogan v Ed's Bargain Buggy Corp., 279 AD2d 445, 719 NYS2d 260 [2d Dept 2001]).

In contrast to Chapter 7 proceedings, the object of a Chapter 13 filing is the rehabilitation of the debtor under a plan that adjusts debts owed to creditors by the debtor's regular periodic payments derived principally from income (see 11 USC §1301, et. seq.; First Capital Asset Mgt., Inc. v Satinwood, 385 F.3d 159 [C.A. 2 2004]). The bankruptcy estate under Chapter 13 is broader than the estate in Chapter 7 proceedings since a Chapter 13 estate continues to accumulate property following the filing of the petition. Under USC §1306, all property specified in §541 that the debtor acquires after the commencement of the action, but before the case is closed, dismissed or converted is the property of the estate. Inclusion of both pre-petition assets and post-petition assets in a Chapter 13 estate is due to the following: 1) that distribution of the estate assets administered by the trustee, principally income, must be made only in accordance with a plan that has been confirmed by the court; 2) except as to income and assets controlled by the trustee under the terms of the plan, the debtor is deemed to remain in possession of all property of the estate (see 11 USC §1306[b]; 1327[b]); and 3) the confirmation of the plan "vests all the property of the estate in the debtor" (see 11 USC §1327[b]). Assets acquired post-confirmation are not included as property of the estate, unless they are necessary to maintain the plan (see 11 USC §1306[a]; §1326]).
 

Unlike Chapter 7 cases, there is no real disconnect of the estate property from the debtor under a Chapter 13 filing, except to the extent that the plan, as confirmed by order of the court, places control over an asset in the hands of the trustee.

A filing under Chapter 13 thus changes the calculus in determining the issue of standing or the capacity to prosecute civil causes of action from that applied to Chapter 7 cases. "While Chapter 7 and Chapter 11 debtors lose standing to maintain civil suits - which must be brought and/or maintained by their bankruptcy trustees - it is clear that Chapter 13 debtors like plaintiffs are not subject to this restriction" (Murray v Board of Educ. of City of New York, 248 B.R. 484, 486 [S.D.N.Y.2000], citing Olick v Parker & Parsley Petroleum Co., 145 F.3d 513 [2d Cir.1998]). In Olick, the Second Circuit addressed for the first time the differences between Chapter 7 and Chapter 11 cases and found "that a Chapter 13 debtor, unlike a Chapter 7 debtor, has standing to litigate causes of action that are not part of a case under title 11" (id. 45 F3d at 515). This holding was premised, in part, upon the fact that the focus of a Chapter 13 bankruptcy is the repayment of debts, regularly, through future earnings rather than from a liquidation of assets owned by the debtor at the time of filing. The Olick court also relied upon the legislative history of §1303 of Chapter 13 as drawn from remarks in the Congressional Record: "[C]ertainly it is intended that the [Chapter 13] debtor has the power to sue and be sued" (id. at 516 quoting 124 Cong. Rec. H. 11,106; S. 17,423).

Numerous other federal cases have also held that Chapter 13 debtors are not deprived of [*4]standing to assert pre-petition causes of action and others accruing post-petition (see Ponton v AFSCME, 395 Fed.Appx. 867 [C.A.3 2010]; Smith v Rockett, 522 F.3d 1080 [C.A.10 2008]; Autos Inc. v Gowin, 244 Fed.Appx, 2007 WL 2269443 [C.A.10 2007]; Crosby v Monroe County, 394 F.3d 1328 [C.A. 11 2004]; Cable v Ivy Tech., 200 F.3d 467, 472-74 [C.A. 7 1999]; Bennett v Flagstar Bank, 2011 WL 6152940 [S.D. Ga. 2011]; M & T Mtge. Corp. v White, 736 F.Supp.2d 538 [E.D.N.Y 2010]; In re Stewart, 373 B.R. 801 [Bankr. S.D. Ga. 2007]; Snowden v Fred's Stores of Tennessee, 419 F.Supp2d 1367 [M.D Al. 2006]; In re Bowker, 245 B.R. 192 [D.N.J. 2000]). While it is unclear from these case authorities whether a Chapter 13 debtor has an exclusive right to sue (see In re Bowker, 245 B.R. 192, supra) or possesses such right concurrently with the trustee (see In re Stewart, 373 B.R. 801, supra), that which is clear is that the debtor has standing to prosecute non-bankruptcy causes of action (see Looney v Hyundai Motor Mfg. LLC., 330 F.Supp.2d 1289 [M.D. Al. 2004]).

This court's review of state case authorities that have addressed the capacity of a Chapter 13 debtor to sue reveals that the issue is less than settled. In Gray v City of New York, 958 AD3d 448, 449, 872 NYS2d 7 (1st Dept 2009), which was a breach of contract action prosecuted by a Chapter 13 debtor, the First Department unequivocally held that the "plaintiff's failure to include his notice of claim in his bankruptcy petition deprived him of his capacity to sue (Whelan v Longo, 7 NY3d 821, 822 NYS2d 751[2006]), even if the omission was innocent (Dynamics Corp. of Am. v Marine Midland Bank - NY, 69 NY2d 191, 513 NYS2d 91 [1987])". In Quiros v Polow, 135 AD2d 697, 522 596 (2d Dept 1987), a legal malpractice action decided prior to Olick, the Second Department also held that a Chapter 13 debtor lacked capacity to sue citing Dynamics Corp. of Am. v Marine Midland Bank - NY, (69 NY2d 191, supra). However, neither Whelan nor Dynamics, involved a Chapter 13 debtor.

In contrast, the Second Department held in Giovinco v Goldman, 276 AD2d 469, 713 NYS2d 700 (2d Dept 2000), that a Chapter 13 debtor has capacity to sue on medical malpractice claims. As authority for its holding, the Giovinco court relied upon Olick v Parker & Parsley Petroleum Co., (145 F.3d 513, supra) and no fewer than ten other federal case authorities. Two cases emanating out of the Fourth Department also followed the Second Circuit's holding in Olick v Parker & Parsley Petroleum Co., (145 F.3d 513, supra ) and found that a Chapter 13 debtor has capacity to sue on legal claims (see Kenney v National Fuel Gas Distrib. Corp., 8 AD3d 989, 778 NYS2d 352 [4th Dept 2004]; In re Miller, 1 AD3d 885, 767 NYS2d 729 [4th Dept 2003]).

There are a plethora of cases that fail to identify which Chapter of the Bankruptcy Code the plaintiff filed under (see Mathus v Bouton's Bus. Mach., Inc., 78 AD3d 476, 910 NYS2d 633 [1st Dept 2010]; R. Della Realty Corp. v Block 6222 Constr. Corp., 65 AD3d 1323, 88 NYS2d 157 [2d Dept 2009]; Wright v Meyers & Spencer, LLP, 46 AD3d 805, 849 NYS2d 274 [2d Dept.2007]; Quinn v Guerra, 26 AD3d 872, 811 NYS2d 238 [4th Dept 2006]; Monson v Israeli, 35 AD3d 680, 828 NYS2d 424 [2d Dept 2006]; Santori v Met Life, 11 AD3d 597, supra; Whelan v Longo, 23 AD3d 459, supra; Martinez v Desai, 273 AD2d 447, 710 NYS2d 372 [2d Dept 2000]). While cited frequently by defendants desirous of non-suiting a plaintiff on lack of capacity grounds, these cases offer no authority that Chapter 13 debtors may likewise be non-suited. [*5]"

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). "

For a well written decision on one of the most complicated factual settings we can remember, read Oikonomos, Inc. v Bahrenberg   2013 NY Slip Op 50017(U)   Decided on January 5, 2013   Supreme Court, Suffolk County   Pines, J.   This legal malpractice-breach of fiduciary duty-breach of contract-fraud-promissory estoppel- equitable estoppel case has even more to it.  The facts of a vastly intertwined series of commercial / loan / guarantee / lease issues are so opaque that there is little sense to trying to describe it.  Justice Pines does a much better job in her decision,
 

"Applying these general principles to the case at bar, the Court finds that there are so many disputed issues of fact surrounding the legal malpractice claim of the Plaintiffs against Bahrenburg, that a trial is necessary. While Bahrenburg asserts he either did not represent or was released from any conflicts by certain Plaintiffs, the Plaintiffs state the opposite. While Bahrenburg offers different reasons for the Plaintiff's economic losses, the Plaintiffs set forth that each and every breach, whether of a lease, promissory note or guarantee, was caused by Bahrenburg's disloyalty, misrepresentations and improper acts. There are also issues of fact raised by the Third Party Defendants, the Braysons, with regard to the allegations that Bahrenburg's actions of collusion and malicious behavior are sufficient to permit them to sue Bahrenburg both as former clients and as third parties to the various transactions, for legal malpractice under the authority set forth above.

In this action, based upon a careful reading of all the papers, the Court is convinced that the allegations in this case of breach of fiduciary duty against Defendant Bahrenburg, while extremely serious , are subsumed under the claims for legal malpractice as they all arise from the same sets of alleged facts and actions. For this reason, although the Court believes that the multitude of claims by the various Plaintiffs against Bahrenburg for breach of his fiduciary duties will be the subject of much of the trial of this action, they are not the basis for a separate cause of action. Accordingly, the motions for Summary Judgment dismissing the twenty seventh claim by the corporate Plaintiffs and the third , fourth, and ninth cross claims by the Braysons against Bahrenburg for legal malpractice are denied. The motion for Summary Judgment, dismissing the fourth and seventeenth claims as well as the first and eighth cross claims against Bahrenburg for breach of fiduciary duties is granted, with the understanding that all of the factual allegations made under such claims may be presented as the basis for legal malpractice.

As with the breach of fiduciary duty claims, the Plaintiffs and third party Cross Claimants have set forth allegations of facts, which if demonstrated at trial, constitute fraud. However, to the extent that such allegations are made against Bahrenburg, they are again, subsumed within the legal malpractice claims and indeed seek the same damages for the loss of the lease, note and guarantee payments on the various underlying agreements that give rise to this lawsuit. Therefore, while Plaintiffs will be free to demonstrate the acts complained of, they are again not separate causes of action. The same is not true with regard to Defendants Clark and Dryfoos, who are essentially accused, through the various affidavits and discovery presented to the Court, of aiding and abetting Bahrenburg in his various alleged concealments, disloyalties to his former clients, and wrongful acts in jeopardizing their contractual rights. Accordingly, the Summary Judgment motions to dismiss the fraud claims against Bahrenburg (fifth, eighteenth and thirtieth) are granted. On the other hand, the allegations set forth by Plaintiffs against Clark and Dryfoos are sufficient to allow the twenty first and thirtieth claims against them, in which they are accused essentially of aiding and abetting Bahrenburg in acts of misrepresentation and concealment, to proceed to trial and are not dismissed on the Summary Judgment motion.

There are numerous contracts at issue in this case, which the Defendants all claim to be barred and the Plaintiffs all assert are enforceable. In this Court's view each presents ambiguities, when viewing the agreements as a whole, as well their purpose when entered (which is disputed in certain instances). Whether discussing the Oikonomos restructuring agreement, which the Defendants claim void based upon the advice of a non party and Plaintiff claims valid based upon the alleged advice of Windwood and Bahrenburg; the Stonegate lease amendment, which the Foundation asserts relieved it of its obligations and which Stonegate sets forth stands in view of obligations to the initial lending institution; the lease and services agreements between 3390, Educare and Windwood; or the guarantees of the Foundation and Windwood of Maple Valley's obligations to WDR on its note (which the Defendants claim was expunged and the Plaintiff states is still in effect, either in law or equity under Massachusetts cases), questions of fact have been raised and require the issues to be tried. In this vein, Plaintiffs point to the case relied upon by movants, Awed v Marisco, 538 NE 2d 43 (Mass Ct. App. 1989), which held that even where a co-guarantor pays off a debt, thereby extinguishing the guarantee, such party still has a claim against the co-maker in equity and under the Uniform Commercial Code, for contribution. "

We were unable to select the best of Gerard M. Tanella's transgressions, and invite you to read the entire list prepared by the Appellate Division in Matter of Tanella   2013 NY Slip Op 00099
Decided on January 9, 2013   Appellate Division, Second Department  Per Curiam.  which determined his "complete abdication by the respondent of his fiduciary duties over client funds and his escrow account; serial neglect by the respondent of legal matters entrusted to him; giving of false testimony to the Grievance Committee; deceiving his clients into believing claims had settled when the respondent had not even commenced actions on their behalf; deceiving third parties into believing the settlement status of claims in order to procure funds; fabrication of court orders by the respondent; issuance of checks which the respondent knew would be returned for insufficient funds; financial injury caused to clients and third parties as a result of the respondent's misconduct; and participation by the respondent in a criminal enterprise and the failure to extricate himself from such enterprise whose objective was to defraud insurance companies".
 

What we don't understand is where the money actually sent to clients came from.  However, we will predict that there are as many as 25 former clients that are now considering legal malpractice litigation. 

Battling over the "but for" portion of the legal malpractice requirements is generally where commercial cases such as Garten v Shearman & Sterling LLP  2013 NY Slip Op 00035
Decided on January 8, 2013  Appellate Division, First Department  end up.  Here, in a surprisingly clear recitation, the AD tells us why this case was doomed.
 

"On an appeal from a denial of a dismissal motion, this Court found that plaintiff "has stated a cause of action for malpractice by alleging that but for' defendant's failure to prepare and procure documents necessary to provide him with a first-priority security interest, he would have been able to recover the amounts owed to him by the defaulting borrower" (52 AD3d 207 [1st Dept 2008]).

Now, after discovery, it is clear that plaintiff cannot establish either a breach of duty or causation, both of which are necessary to proceed with the claim (see Wo Yee Hing Realty Corp v Stern, 99 AD3d 58, 62-63 [1st Dept 2012]).

Plaintiff's own deposition testimony establishes that he understood that at the time he was advancing a loan to Pacific Jet, there was a superior lien on the accounts receivable, which were also being used to collateralize his loan. He knew the identity of the senior creditor and fully understood that his position would be junior when his loan was first made and would remain so, unless and until the first lien was paid off. He was, however, under a mistaken impression about the amounts owed to the senior creditors because his friend, Tim Prero, Pacific Jet's principal, misled him by significantly understating those amounts. Plaintiff's assumptions about his business risk in getting repaid were based upon false factual information about the financial health of Pacific Jet and how quickly the senior creditors would be paid off. Defendant established a prima facie case warranting dismissal of the complaint by showing that plaintiff's losses were caused by Pacific Jet's poor financial condition and plaintiff's misjudgment of risk based upon the false factual information provided to him by Prero. (see A & R Kalimian v Berger, Gorin & Leuzzi, 307 AD2d 813 [1st Dept 2003]).

Plaintiff failed to raise any factual disputes in opposition. There is no evidence that defendant was retained to review Pacific Jet's private corporate records. The undisputed evidence reveals that plaintiff alone reviewed Pacific Jet's private financial records and negotiated the material terms of the transaction. The public UCC records, which defendant searched, revealed a prior security interest, a fact known to all, but no lien amount was recorded. [*2]Although plaintiff asked defendant to "document" his first priority interest, he did not have a first priority interest at the time he advanced the loan and had no expectation of a first priority interest before the senior creditor was paid. Subordination agreements or releases from the senior creditor at the time the loan was made, therefore, were not in order. Plaintiff has not elucidated what other documents defendant could have procured or prepared that would have altered the outcome of what was in hindsight a bad business deal.

Plaintiff no longer claims that defendant could have taken actions that would have allowed him to recover the amounts owed. He currently argues that he would not have entered into the transaction had he known his friend was misleading him about the amounts owed to prior creditors. This position is different from the position he prevailed upon on the motion to dismiss. It is also contrary to his deposition testimony, when in answer to a direct question about whether he considered not making any loans because his friend had failed to show him any documentation, plaintiff could not "speak to his mindset" at the time. Plaintiff's new claim does not create an issue of fact that would defeat summary judgment (see Madtes v Bovis Lend Lease LMB, Inc., 54 AD3d 630 [1st Dept 2008]). Finally, the undisputed evidence reveals that plaintiff was aware that there were risks associated with having a junior security position at the time he advanced the loan proceeds and negotiated his own remedy of enhanced interest. "

Plaintiff is injured on a cruise ship, and comes back to NY looking for an attorney. Right now we should be thinking, venue, long-arm jurisdiction, state or federal court.  However, in Palmer v Mulvehill  2012 NY Slip Op 33046(U)  December 19, 2012  Sup Ct, Suffolk County  Docket Number: 11-17748  Judge: Daniel Martin  things take off in a totally different direction.  Here, the problem is a contractual one year statute of limitations, delay in bringing the case, and eventual bankruptcy. 

"A CPLR 3211(a) (1) motion to dismiss a complaint on the ground that a defense is founded on
documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff's allegations, conclusively establishing a defense as a matter of law (see Peter Williams Enterprises, Inc.. v New York State Urban Dev. Corp., 90 AD3d 1007, 935 NYS2d 624 [2d Dept 2011); Turkat v Lalezarian Developers, Inc.., 52 AD3d 595, 506, 860 NYS2d 153 [2d Dept 2008). In order to sustain a claim for legal malpractice, the 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 which results in actual damages to her (McCoy v Feinman, 99 NY2d 295, 301, 302, 755 NYS2d 693 [2002). A cause of action sounding in legal malpractice accrues on the date the alleged malpractice was committed, not on the date it was discovered (St. Stephens Baptist Church v Salzman, 37 AD3d 589, 830 NYS2d 248 [2d Dept 2007). Here, the time to file a complaint as a result of damages plaintiff allegedly sustained in the cruise ship accident expired on December 21, 2007, thus the plaintiffs claim for legal malpractice accrued on December 22, 2007 Since the retainer agreement with defendant Mulvehill was not signed until December 5, 2008, after the statute of limitations had expired with regard to plaintiffs underlying claim against the cruise ship, he cannot be liable for malpractice in failing to file the claim in a timely manner. Consequently, defendant Mulvehill has established a defense to plaintiffs claim of legal malpractice as a matter of law in allegedly failing to bring a timely action against the cruise liner..

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) ( 3 ) , the defendant must show that the plaintiff does not have legal capacity to sue. Where a party fails to schedule an asset in a bankruptcy proceeding, she is thereafter deprived of standing to raise it in a subsequent legal proceeding as the asset becomes the property of the bankrupt plaintiffs estate, and, thus if her claim accrued while her bankruptcy proceeding was still pending, she would not be permitted to institute a proceeding involving the said asset (Barranco v Cabrini Med. Ctr., 50 AD3d 281, 855 NYS2d 431 [lst Dept 2008). A lawsuit that is initiated prior to the bankruptcy petition or that could have been initiated by the debtor prior to the bankruptcy petition, “becomes[s] part of the bankruptcy estate subject to the sole direction and control of the trustee, unless exempted or abandoned or otherwise revested in the debtor” (Dennis v Bank United, , 2011 U.S. Dist Lexis 102292 [Dist of MD 2011 ). Thus, the question to be determined is whether the plaintiffs claims accrued before she filed her bankruptcy petition.

Plaintiff alleges in her opposition, and annexes portions of her bankruptcy petition (the original petition was filed on December 22, 2008) which indicate, that the underlying action against the cruise line was added to the bankruptcy petition, in or about October 2010. (Therefore, the issue with regard to standing as it relates the cruise line action must be denied as moot. It should be noted that the bankruptcy trustee was authorized to retain defendants Richard E. Miller, Esq. and John H. Mulvehill, Esq. as co-counsel to prosecute and conclude the cruise line lawsuit.) Insofar as defendants maintain that the within action for legal malpractice must have been alleged in the bankruptcy petition, plaintiff was not aware that she possessed that cause of action until on or after October 2, 2010, when her cruise ship action was dismissed by the Federal District Court as the result of a statute of limitations violation.

The bankruptcy case was closed and a final decree issued on October 12,2010. Thus, the legal
malpractice action could not have been included in the bankruptcy petition as originally filed, or thereafter amended to include the cruise line action. Accordingly, as plaintiffs legal malpractice lawsuit was not initiated, nor could it have been initiated, prior to her bankruptcy filing in December 2008, i:he motions by the co-defendants Panzini and Miller to dismiss plaintiffs complaint on the grounds that she lacked<s standing to sue are denied."

In this legal malpractice case, many of the causes of action are now weeded out after CPLR 3211 motions.  H.P.S. Mgt. Co., Inc. v St. Paul Surplus Lines Ins. Co.   2012 NY Slip Op 09028
Decided on December 26, 2012   Appellate Division, Second Department  
 

"In an action, inter alia, to recover damages for breach of contract, legal malpractice, and fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated May 12, 2011, as granted those branches of the motion of the defendants St. Paul Surplus Lines Insurance Company and Travelers Companies, Inc., which were pursuant to CPLR 3211(a) to dismiss the second, third, fourteenth, and fifteenth causes of action, all without leave to replead, granted that branch of the same motion which was pursuant to CPLR 3211(a) to dismiss so much of the tenth cause of action as sought an award of an attorney's fee against those defendants, granted that branch of the separate motion of the defendants Seabury & Smith, Inc., Marsh & McLennan Companies, Inc., and Marsh Affinity Group Services which was pursuant to CPLR 3211(a) to dismiss the eleventh cause of action, without leave to replead, granted those branches of the separate motion of the defendant Wilton Reassurance Life Company of New York which were pursuant to CPLR 3211(a) to dismiss the eighth, twelfth, and thirteenth causes of action, all without leave to replead, and granted that branch of the separate motion of the defendants Babchik & Young, LLP, and Jack Babchik which was pursuant to CPLR 3211(a) to dismiss, insofar as asserted against those defendants, the fourth cause of action.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants appearing separately and filing separate briefs. [*2]

Contrary to the plaintiffs' contention, the Supreme Court applied the proper standard in reviewing the defendants' motions to dismiss various causes of action in the amended complaint that were asserted against each of them (see generally Garner v China Natural Gas, Inc., 71 AD3d 825, 826; Davis v Davis, 71 AD3d 13, 19; Ruffino v New York City Tr. Auth., 55 AD3d 817, 818). The Supreme Court did not err in directing the dismissal of the causes of action that are the subject of this appeal, as they either failed to state a cause of action, were untimely interposed, or were duplicative of other causes of action that were asserted (see generally CPLR 214[4]; Chase Scientific Research v NIA Group, 96 NY2d 20, 30; Colasacco v Robert E. Lawrence Real Estate, 68 AD3d 706, 708; Kantrowitz v Allstate Indem. Co., 48 AD3d 753, 754; Paterra v Nationwide Mut. Fire Ins. Co., 38 AD3d 511, 512-513; LoPresti v Massachusetts Mut. Life Ins. Co., 30 AD3d 474, 476; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321, 322). The Supreme Court also properly denied the plaintiffs' requests for leave to replead that are raised on this appeal (see generally Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 27; Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d 809, 811). Accordingly, the order must be affirmed insofar as appealed from. "
.

A very familiar scenario in the legal malpractice world is the Attorney Fee Suit / Legal Malpractice Counterclaim.  Facially, this combo is completely predictable and logically there is no shame or second-class status to the legal malpractice counterclaim.  In practice, however, many courts think the counterclaim is a "last-ditch" or equivalent effort to avoid paying justified fees.  In any given instance, the counterclaim may well be both virtuous and justified.

Here, in Schlenker v Cascino  2012 NY Slip Op 33066(U)  December 31, 2012  Sup Ct, Albany County  Docket Number: 5650-11  Judge: Joseph C. Teresi we will never know, because the attorney's account stated claim is granted, and by virtue of collateral estoppel, the counterclaim will be dismissed. 

"Plaintiff commenced this breach of contract / account stated / quantum meruit action claiming that Defendants failed to pay their fee for the legal services he rendered, in the amount of $52,480.94. I Issue was joined by Defendants, who set forth a legal malpractice counterclaim. Discovery has been conducted, a note of issue was filed and a trial date certain has been set (April 8,2013).

Plaintiff now moves for summary judgement granting his account stated and breach of contract causes of action, while also dismissing Defendants' counterclaim. Defendants oppose the motion, and move to strike the note of issue. Plaintiff opposes Defendants' motion. Because Defendants' motion to strike is both procedurally defective and moot it is denied. Plaintiff, however, demonstrated his entitlement to summary judgment on his account stated cause of action, and no material issue of fact was raised. Such holding renders moot Plaintiffs motion for summary judgment on his breach of contract claim.2 Plaintiff additionally demonstrated his entitlement to summary judgment partially dismissing Defendants' malpractice claim.

In general, 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." (Levine v Harriton & Furrer, LLP, 92 AD3d 1176, 1178 [3d Dept 2012], quoting J.B.H., Inc. v Godinez, 34 AD3d 873 [3d Dept 2006] and Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868 [3d Dept 1993], Iv. denied 82 NY2d 660 [2000]). "An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account." (Am. Exp. Centurion Bank v Cutler, 81 AD3d 761, 762 [2d Dept 2011]; Morrison Cohen Singer and Weinstein, LLP v Waters, 13 AD3d 51 [1st Dept 2004]; Jaffe v Brown-Jaffe, 98 AD3d 898 [1st Dept 2012]; Shaw v Silver, 95 AD3d 416 [1st Dept 2012]).

As is specifically applicable here, "[a]n 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." (Antokol & Coffin v Myers, 86 AD3d 876,877 [3d Dept 2011], quoting O'Connell & Aronowitz v Gullo, 229 AD2d 637 [3d Dept 1996], Iv. denied 89 NY2d 803 [1996][internal quotation marks omitted]; Miller v Nadler, 60 AD3d 499 [1st Dept 2009]; Geron v DeSantis, 89 AD3d 603 [1st Dept 2011]; Ruskin, Moscou, Evans, & Faltischek, P.C. v FGH Realty Credit Corp., 228 AD2d 294 [1st Dept 1996]). On such claim "it is not necessary to establish the reasonableness of the fee since the client's act of holding the statement without objection will be construed as acquiescence as to its correctness." (Cohen Tauber Spievak & Wagner, LLP v Alnwick, 33 AD3d 562, 562-63 [1st Dept 2006], quoting O'Connell & Aronowitz v Gullo, supra [internal quotation marks omttted]). "Nor does [the attorney's] failure to provide a written retainer agreement bar its claim for an account stated." (Thelen LLP v Omni Contr. Co., Inc., 79 AD3d 605,606 [1st Dept 2010] Iv to appeal denied, 17 NY3d 713 [2011];Roth Law Firm, PLLC v Sands, 82 AD3d 675 [1st Dept 2011]; Kramer Levin Naftalis & Frankel LLP v. Canal Jean Co., Inc., 73 AD3d 604 [2010]; Roth Law Firm, PLLC v Sands, 82 AD3d 675 [1st Dept 2011]; Miller v Nadler, 60 AD3d 499 [1st Dept 2009]). Moreover, "the fact that an invoice is not itemized does not ... prevent an account stated from being created." (ERE LLP v
Spanierman Gallery, LLC, 94 AD3d 492, 493 [1st Dept 2012], quoting Zanani v. Schvimmer, 50
AD3d 445 [1st Dept 2008]).

With the burden shifted, Defendants raised no triable issue of fact. First, because Defendants' attorney's affirmation is not based upon "personal knowledge of the operative facts [of Plaintiffs account stated claim, it is of no] ... probative value." (2 North Street Corp. v. Getty Saugerties Corp., 68 AD3d 1392 [3d Dept. 2009]; Groboski v. Godfroy, 74 AD3d 1524 [3d Dept. 2010]). Defendants instead rely solely on the affidavit of Salvatore Cascino (hereinafter "Cascino"),4 which neither attaches nor references any supporting documentary evidence. Cascino's conclusory, undetailed, "[s]elf-serving, [and] bald allegations of oral protests are insufficient to raise a triable issue of fact as to the existence of an account stated." (1000 Northern of New York Co. v Great Neck Medical Associates, 7 AD3d 592, 593 [2nd Dept 2004]; Darby & Darby, P.C. v VSI Intern., Inc., 95 NY2d 308 [2000]). Moreover, Cascino neither denied receiving Plaintiffs invoices nor to partially paying them. With such submission, Defendants raised no triable issue of fact.

Turning to Plaintiffs motion for summary judgment dismissing Defendants' legal malpractice counterclaim, "[i]n order to recover damages in a legal malpractice action, [Defendants] must establish that [Plaintiff] failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that [Plaintiffs] breach of this duty proximately caused [Defendants] to sustain actual and ascertainable damages." (Dombrowski v Bulson, 19 NY3d 347,350 [2012], quoting Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007][internal quotation marks omitted]). As amplified by Defendants' bill of particulars, their malpractice claim is based, in part, upon three5 occurrences within Plaintiffs representation of them in criminal prosecutions.

Applicable to this portion of Defendants' malpractice claims, "[Defendants] must have at least a
colorable claim of actual innocence that the conviction would not have resulted absent the  attorney's negligent representation." (Id. at 350; Shields v Carbone, 78 AD3d 1440 [3d Dept 2010]). Defendants, however, resolved such criminal matter by a plea of guilty. Such plea conclusively negates any claim of actual innocence. Accordingly, Plaintiff established his entitlement to summary judgment dismissing Defendants' malpractice claim based on his alleged failure to accept an adjournment, his wrongfully seeking of a global settlement and his failure to move for joinder of duplicitous prosecutions. Because Defendants raised no triable issue of fact,this portion of Defendants' malpractice claim is dismissed."

In Rooney v Manzo   2012 NY Slip Op 32966(U)   December 5, 2012   Sup Ct, Queens County
Docket Number: 5865/2012  Judge: Robert J. McDonald we see an inspired attempt to get around the 3 year statue of limitations.  It does not succeed.

"In his first cause of action, plaintiff sets forth his claim that defendant breached her agreement  ith him by refusing his request to petition the Court for custody of his children; by unilaterally withdrawing from his case; by attempting to coerce him into conceding to his ex-wife’s demands; by failing to conduct adequate and appropriate discovery regarding his ex-wife’s financial circumstances; by failing to provide him with copies of all documents regarding the case; by refusing his request for a second copy of a bill; by failing to make application to enforce his so-ordered visitation; by failing to apply for court intervention regarding his daughter Shannon’s disabilities; by failing to file criminal charges against his ex-wife for custodial interference; by failing to petition the court to amend the child support provisions of a prior order; by failing to provide
receipts to the Quadro matter; by improperly co-mingling funds with the Tryon Company; and by failing to petition the Court for his share of his ex-wife’s IRA account. As a result of the alleged
misfeasance by the defendant, plaintiff contends that he has been damaged in the amount of two million dollars and caused to sustain mental anguish and anxiety.

In his second cause of action, the plaintiff states that he paid defendant the sum of $8,000 as a retainer for rendering legal services and that defendant failed to render said services and failed to provide regular billing statements. As a result the plaintiff seeks a return of the retainer amount.
The third cause of action sounds in legal malpractice and alleges that the defendant failed to represent the plaintiff in a skillful and proper manner in accordance with professional standards by abandoning his case before trial, failing to ascertain the ex-wife’s financial condition and failing to provide documents to the plaintiff so that he could make decisions affecting him and his minor children. Plaintiff seeks the sum of  $250,000 under this cause of action.”

In the instant motion, in addition to moving for leave to renew and reargue, plaintiff moves to  amend the complaint to add a cause of action for fraud stating that he first learned from
defendant’s prior motion papers that defendant never intended to represent him with respect to his custody and visitation issues but only to assist him in the finalization of his uncontested divorce documents. He states that he expected that Ms. Manzo was retained to be his general divorce counsel and he expected Ms. Manzo to give him guidance in all matters relating to his divorce.
He states that Ms. Manzo gave him her implied promise that she would address the problems relating to his visitation rights and related concerns for his two daughters. He states that he has
sufficient factual allegations to plead a cause of action for fraud in that he was misled into believing that Ms. Manzo would address all aspects of his divorce and not just act to finalize his divorce papers. Thus, plaintiff moves for leave to amend the  complaint to plead a cause of action for fraud.

With respect to the court’s decision dismissing the causes of action for malpractice, the plaintiff argues that the cause of action for legal malpractice did not begin to accrue until August 25, 2011 when Justice Raffaele reduced his child support on the ground that his ex-wife had caused parental alienation. A copy of that decision has not been provided to the Court. He states that
this finding confirmed his theory that Ms. Manzo was negligent in not proceeding against his ex-wife at that time for change of custody or modification of visitation. He states that in Florida a
cause of action for malpractice does not accrue until a final determination of the action which he contends is August 25, 2011.

Here, this court finds that the moving papers fail to establish that the court overlooked,  isapprehended either the facts or law or otherwise mistakenly arrived at its prior determination. Asstated previously, all of the plaintiff’s causes of action in including the proposed cause of action for fraud all sound in legal malpractice. As the defendant’s representation of the plaintiff ended on December 21, 2006, the complaint, which was served subsequent to the expiration of the three year statute of limitations for legal malpractice claims was time-barred.
Accordingly, for all of the above stated reasons, it is hereby, ORDERED, that the plaintiff’s motion pursuant to CPLR 2221 for leave to renew and reargue the defendant’s motion to dismiss
the complaint is granted, and upon reargument the decision of this court dated June 12, 2012 is adhered to in its entirety, and it is further,ORDERED, that the branch of the plaintiff’s motion for leave to amend the complaint to add a cause of action for fraud and to restore the action to the calendar of the court is denied."

In this legal malpractice case, defendant made motions in a seemingly out-of-order fashion, yet succeeded even though.  Here is the AD discussing a novel method of moving to dismiss in Shirzadnia v Lecci   2012 NY Slip Op 09043   Decided on December 26, 2012   Appellate Division, Second Department:
 

"The plaintiff commenced the instant action by the filing of a summons and complaint on December 28, 2004. By notice of motion dated February 15, 2005, the defendant moved for an order, inter alia, "pursuant to CPLR 3211 and 3212 dismissing the complaint upon the ground that there is documentary evidence which precludes plaintiff's complaint." In an order dated June 15, 2005, the Supreme Court denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211, without addressing that branch of the motion which was for summary judgment. Following discovery, the defendant, by notice of motion dated June 9, 2011, moved for an order "pursuant to CPLR Rule 3211(a)(1) through (7) and 3212 dismissing the action." The Supreme Court granted that branch of the defendant's motion which was pursuant to CPLR 3212 for summary judgment dismissing the complaint.

The plaintiff's sole argument on appeal is that the Supreme Court should have denied the defendant's motion as either an untimely motion for leave to reargue, or an improper successive motion for summary judgment. However, since the defendant's 2005 motion was made prior to the service of an answer, and the 2011 motion was made following the completion of discovery, the record supports the Supreme Court's determination that the 2005 motion was not properly characterized as one for summary judgment, and that, accordingly, the 2011 motion did not violate the rule against successive motions for summary judgment (see Sutter v Wakefern Food Corp., 69 AD3d 844, 845; see also Kimber Mfg., Inc. v Hanzus, 56 AD3d 615, 616; Williams v City of White Plains, 6 AD3d 609). For similar reasons, the defendant's 2011 motion was not an untimely motion for leave to reargue. "

We would like to take this opportunity today to wish all a Happy New Year, with health and blessings.  This past year has been tumultious and the odds are that 2013 will be exciting as well. We're looking forward to reporting on the Legal Malpractice news and cases as time and energy swirl around us.

Global Bus. Inst. v Rivkin Radler LLP   2012 NY Slip Op 09180   Decided on December 27, 2012
Appellate Division, First Department  is the exception to the rule, where Supreme Court declines to dismiss and the AD reverses. The AD's reasoning is fairly clear.  They hold that Plaintiff cannot prove that the poor commercial outcome is the attorney's fault.  Rather, it was plaintiff who agreed to the terms of the commercial deal, so...

"In this action for legal malpractice, defendant met its burden on summary judgment of "showing an absence of proximate cause" between the alleged negligence and plaintiff's losses (Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 151 [1st Dept 1998]). The documentary evidence establishes that plaintiff, and defendant, the firm that represented plaintiff in the negotiation and drafting of the lease, requested that the landlord agree to utilizing a later base year than 2004/05 for real estate tax escalation and the landlord refused. The documentary evidence also establishes that plaintiff knowingly accepted the landlord's terms on this issue. In addition, defendant demonstrated that the landlord would not have agreed to an additional penalty beyond deferment of rent for late completion of the construction required for plaintiff to use the premises for its business.

Plaintiff failed "to demonstrate a material issue of fact on the question of proximate cause" (Levine, 256 AD2d at 151). Notably, neither of plaintiff's experts contradicted defendant's expert's testimony that, at the time the subject lease was being negotiated, the real estate market strongly favored landlords. [*2]

Plaintiff's claim that it would have pursued alternative space is speculative and therefore insufficient to establish that defendant's malpractice, if any, was a proximate cause of plaintiff's loss (see Brooks, 21 AD3d at 734-735). "

In Green v Gross & Levin, LLP   2012 NY Slip Op 09027   Decided on December 26, 2012
Appellate Division, Second Department  which is a Pro-se legal malpractice complaint, all that can be discerned from the Appellate Division is that there were a lot of causes of action and that some of them survived.

The AD disagreed with Supreme Court's reason for dismissal, but nevertheless dismissed on alternate grounds.  "The Supreme Court correctly concluded that personal jurisdiction over Naidoo was never obtained, as the plaintiff failed to present prima facie proof that Naidoo was served with process in accordance with CPLR 308. Therefore, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Naidoo, based on lack of personal jurisdiction.

However, the Supreme Court should not have granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against G & L, based on lack of personal jurisdiction. The plaintiff presented prima facie proof that service was effected upon Gross, a partner in G & L, by personally delivering a copy of the summons with notice to a paralegal at the office of G & L, which was Gross's actual place of business, and then mailing a copy of it to Gross at G & L in an envelope marked personal and confidential and not [*2]indicating that the communication was from an attorney or concerned a legal action. Contrary to the conclusion of the Supreme Court, this service was sufficient to confer personal jurisdiction over G & L, which is a limited liability partnership, since service was properly effected upon one of G & L's partners (see CPLR 308[2]; 310-a; Maine v Jay St. Realty Assoc., 187 Misc 2d 376, 379; Atkinson v D.M.A. Enters., 159 Misc 2d 476, 479-480; see also Foy v 1120 Ave. of the Ams. Assoc., 223 AD2d 232, 236-238). Although G & L alleges that only one copy of the summons with notice was left with the paralegal, this was not a jurisdictional defect, since such notice was reasonably calculated, under all the circumstances, to apprise Gross and, hence, G & L, of the pendency of the action and afford G & L an opportunity to present its objections and defenses (see Raschel v Rish, 69 NY2d 694, 696; see also Brown v Sagamore Hotel, 184 AD2d 47; Matter of T.E.A. Mar. Automotive Corp. v Scaduto, 181 AD2d 776).

Although lack of personal jurisdiction was not a proper basis for dismissal of the complaint against G & L, and the Supreme Court incorrectly determined that the first, second, fourth, fifth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action did not state a cause of action against Gross, those defendants correctly contend that alternative grounds for affirmance exist with respect to certain of those causes of action.

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 704-704; see Leon v Martinez, 84 NY2d 83, 87). "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, thereby conclusively establishing a defense as a matter of law" (Mendelovitz v Cohen, 37 AD3d 670, 670; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "

"Here, the documentary evidence conclusively established a defense as a matter of law to the allegations of legal malpractice, as set forth in the first and fourth causes of action insofar as asserted against G & L and Gross, and the seventh cause of action, which was only asserted against G & L. In addition, the third cause of action fails to state a cause of action to recover damages for legal malpractice insofar as asserted against both G & L and Gross, and the sixth cause of action, which was only asserted against G & L, fails to state a cause of action to recover damages for legal malpractice against it. However, the documentary evidence did not conclusively establish a defense as a matter of law as to the remaining causes of action. Moreover, the allegations set forth in the eighth cause of action state a cognizable cause of action against G & L, and the allegations set forth in the remaining causes of action state cognizable causes of action against both G & L and Gross. "

Plaintiff seemingly made some bad procedural choices during the litigation, and even though defendants failed to appeal from all the issues, they ultimately win.

In Wright v Shapiro   2012 NY Slip Op 08964   Released on December 21, 2012   Appellate Division, Fourth Department  the Court writes:
 

"James J. Shapiro and James J. Shapiro, P.A. (defendants) appeal from an order denying their motion for summary judgment dismissing the second amended complaint against them and granting plaintiff's cross motion to compel the deposition of James Shapiro. We note at the outset that, although defendants' notice of appeal is from the order in its entirety, they do not address plaintiff's cross motion in their brief and thus, as limited by their brief, are deemed to have appealed only from the denial of their motion. We further note that the appeal taken by defendant Chikovsky & Associates, P.A. has been deemed abandoned and dismissed by its failure to perfect the appeal in a timely fashion (see 22 NYCRR 1000.12 [b]).

We agree with defendants that Supreme Court erred in denying their motion. By establishing that plaintiff could not have prevailed in his underlying personal injury action, defendants met their initial burden of establishing their entitlement to summary judgment with respect to the first cause of action against them, for legal malpractice (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442), and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). We note that the court erred in concluding, based on our decision in Wright v Shapiro (16 AD3d 1042), that the doctrine of law of the case precluded summary judgment following discovery. Furthermore, plaintiff's theory of liability premised on respondeat superior is barred by his discontinuation of that action on the merits against the employee, thus eliminating the triable issue of fact we discussed in our subsequent decision in Wright v Shapiro (35 AD3d 1253). Therefore, the court should have [*2]granted defendants' motion with respect to the first cause of action in that regard (see Town of Angelica v Smith, 89 AD3d 1547, 1549-1550).

Inasmuch as the second cause of action is premised upon the legal malpractice cause of action, which we are hereby dismissing against defendants, we further conclude that the court erred in denying defendants' motion with respect to the second cause of action against them. "

Husband suffers personal injury in a fall from a scaffold.  He resolves the case for $1M.  Even at that number, he and wife then succeed in a legal malpractice case for an additional $ 297,000.  What happens then?  Burnett v Burnett   2012 NY Slip Op 08850   Decided on December 20, 2012 Appellate Division, Third Department tells the sad but familiar story of everything unraveling.
 

"The parties were married in 1974 and raised six grown children. During the course of the marriage, plaintiff (hereinafter the wife) worked within the home and defendant (hereinafter the husband) was the primary wage earner, excluding a period during the marriage — described by Supreme Court as "significant" in duration — when the husband left the wife and children dependant upon public assistance benefits and charity from her family. In 2002, in the course of his employment, the husband suffered personal injuries in a fall from a scaffold. In 2006, the parties settled their claims for personal injury and loss of consortium in the combined net sum of $1 million and deposited the funds into a joint investment account managed by their son, with the stated intention of drawing $4,000 monthly from the account for their household expenses and support. In 2007, they jointly obtained a settlement payment upon a legal malpractice action (arising from the underlying personal injury and consortium claims) in the sum of roughly $297,000. The husband deposited this check into his separate account. Thereafter, the husband engaged in extensive and habitual gambling, depleting the accounts. After learning of an adulterous affair in 2009, the wife withdrew the remaining balance of just under $140,000 from the joint investment account. The husband has never accounted for the funds from the malpractice settlement and Supreme Court found, based upon this failure and upon his "less than forthcoming testimony," that the possibility remained that he had secreted or transferred assets.

Supreme Court awarded the wife title to the marital residence, the remaining balance of [*2]the investment account, and the household furnishings and farm equipment. The husband received his checking account, plumbing business and equipment, and a motor boat and trailer. The husband appeals.

We reject the husband's contention that Supreme Court erred in determining that the settlement funds were marital property. Although the governing statute provides that compensation for personal injury constitutes separate property (see Domestic Relations Law § 236 [B] [1] [d] [2]), here, Supreme Court noted the complete lack of any evidence upon which the funds might have been allocated as between the husband's personal injury claim and the wife's consortium claim, and the substantial evidence supporting the legal presumption that the parties wished to treat the proceeds as joint assets of the marriage (see Cameron v Cameron, 22 AD3d 911, 912 [2005]; Garner v Garner, 307 AD2d 510, 512 [2003], lv denied 100 NY2d 516 [2003])."
 

Both the underlying case and the legal malpractice case were resolved by summary judgment, except that the Appellate Division reversed dismissal of the legal malpractice case, and determined that the motion was so deficient that they did not need to read plaintiff's brief.

In Lever v Roesch   2012 NY Slip Op 08699  Decided on December 19, 2012  Appellate Division, Second Department We see the story of a trip and fall in a parking lot, and how it went sour.
 

"The plaintiff allegedly sustained personal injuries when she tripped and fell over a hole in the parking lot of a shopping center. She retained the defendants to commence a personal injury action on her behalf against Breslin Realty Development Corp. (hereinafter Breslin), the owner of the property where she allegedly fell. Thereafter, the Supreme Court granted Breslin's motion for summary judgment and dismissed the underlying action. Specifically, the Supreme Court found that, in opposition to Breslin's prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether Breslin either created or had actual or constructive notice of the alleged defect. The Supreme Court denied the plaintiff's motion for leave to renew and reargue her opposition to Breslin's motion.

The plaintiff subsequently commenced the instant action to recover damages for legal malpractice, alleging, inter alia, that the defendants failed to timely locate potential notice witnesses and to properly oppose Breslin's motion for summary judgment, which resulted in the dismissal of the underlying action. The defendants moved for summary judgment dismissing the complaint in the instant action, and the Supreme Court granted their motion.

"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 NY3d 438, 442 [internal quotation marks omitted]; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 910, 911-912; Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772). "To establish [*2]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 Barbieri v Fishoff, 98 AD3d 703; Board of Mgrs. of Bay Club v Borah, Goldstein, Schwartz, Altschuler & Nahins, P.C., 97 AD3d 612, 613). "To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements" (Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772 [internal quotation marks omitted]).

Here, the defendants did not establish, prima facie, that the plaintiff will be unable to prove at least one of the elements of legal malpractice, and thus failed to demonstrate their entitlement to judgment as a matter of law (see Affordable Community, Inc. v Simon, 95 AD3d 1047, 1048). Triable issues of fact exist, inter alia, as to whether the defendants were negligent in their representation of the plaintiff in the underlying action. In light of our determination, we need not address the sufficiency of the plaintiff's opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "

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; ;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."

Sometimes, the world of legal malpractice seems to be topsy-turvy 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 ;  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). "

Personal injury and legal malpractice cases have many strong bonds.  Because a sizable portion of the litigation world is devoted to personal injuries (on both the plaintiff's and defendant's side), one correctly expects significant legal malpractice litigation after-wards.  How the legal malpractice case proceeds along with or after the PI case is a not well understood procedure.  In Simoni v Costigan 2012 NY Slip Op 07882  Decided on November 20, 2012   Appellate Division, First Department and Simoni v Napoli   2012 NY Slip Op 08639   Decided on December 13, 2012
Appellate Division, First Department we see two sides of the same issue. 
 

Costigan:   Although the personal injury actions and the legal malpractice action involve "a common question of law or fact" (CPLR 602[a]), consolidation could engender jury confusion and [*2]prejudice the defendants in the malpractice action (see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269, [1st Dept 2008]; Brown v Brooklyn Union Gas Co., 137 AD2d 479 [2nd Dept 1988]).

Napoli: The motion court providently exercised its discretion in denying defendants' request for a stay of the legal malpractice action pending resolution of plaintiff's personal injury action (see CPLR 2201). The proceedings do not share complete identity of parties, claims and relief sought (see 952 Assoc., LLC v Palmer, 52 AD3d 236 [1st Dept 2008]; Esposit v Anderson Kill Olick & Oshinsky, P.C., 237 AD2d 246 [2d Dept 1997]).

The motion court also properly permitted plaintiff to amend the complaint (see CPLR 3025[b]). The amended complaint and the documents submitted in support of the cross motion allege facts from which it could reasonably be inferred that defendants' negligence caused plaintiff's loss (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435 [1st Dept 2011]). At this stage of the proceedings, plaintiff does not have to show that he actually sustained damages as a result of defendants' alleged malpractice (id. at 436).

Breytman v Schechter   2012 NY Slip Op 08475   Decided on December 12, 2012   Appellate Division, Second Department seems to be the culmination of a very contentions case.  Early on, Plaintiff earned the ire of Justice Schack in Supreme Court, Kings County.  The AD now has written a decision which in many ways mirrors the Supreme Court decision.
 

"The appeal from the intermediate order dated February 8, 2011, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the order dated February 8, 2011, are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

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 (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). Here, the defendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald Schechter, P.C. (hereinafter together the Schechter defendants), satisfied their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing the causes of action alleging legal malpractice. In opposition thereto, the plaintiff failed to raise a triable issue of fact (see Natale v Samel & Assoc., 308 AD2d 568, 569; Schadoff v Russ, 278 AD2d 222, 223).

As for the remaining causes of action, the Schechter defendants also made a prima facie showing of entitlement to judgment in their favor, in response to which the plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

The plaintiff failed to set forth any proof of the Supreme Court's bias or prejudice which would support recusal (see Walter v Walter, 62 AD3d 787, 788).

The Supreme Court properly imposed a sanction upon the plaintiff for his frivolous conduct in connection with his motion, inter alia, for leave to reargue his opposition to the Schechter defendants' motion, among other things, for summary judgment dismissing the complaint insofar as asserted against them, as the plaintiff's motion was completely without merit in law and was undertaken primarily to harass Roberta S. Schechter (see 22 NYCRR 130-1.1).

Finally, while public policy mandates free access to the courts, "when a litigant is abusing the judicial process by hagriding [sic] individuals solely out of ill will or spite, equity may enjoin such vexatious litigation'" (Matter of Simpson v Ptaszynska, 41 AD3d 607, 608, quoting Matter of Shreve v Shreve, 229 AD2d 1005, 1006 [internal quotation marks omitted]). Here, the Supreme Court properly directed the plaintiff to seek leave of the "appropriate Administrative Justice or Judge" before filing any additional actions against the Schechter defendants (see Matter of Simpson v Ptaszynska, 41 AD3d at 608; Matter of Pignataro v Davis, 8 AD3d 487, 489). "

The attorney has died, and the legal malpractice case continues.  In Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C.  2012 NY Slip Op 32913(U)  December 5, 2012  Supreme Court, Suffolk County  Docket Number: 08-36154  Judge: Daniel Martin the result turns on what an expert may say in a summary judgment affidavit.

Plaintiff successfully contracts to buy a large number of gas stations.  Prior to the contract NYS had condemned three of the stations, and an award was won, but not yet paid.  Who would get the award, buyer or seller?

"This action was commenced to recover damages allegedly sustained by the plaintiffs as the result of the failure of the defendant Carl S. Levine, Esq., Deceased (Levine) to properly draft a contract clause ensuring that the plaintiffs would receive the payment of monies due from the State of New York regarding the condemnation of portions of gas stations which the plaintiff was in the process of purchasing.

At his deposition, Leon testified that he is the managing member of LPL, which owns and leases
gas stations. that he oversees the company’s litigation, and that he oversaw the action  commenced by LPL against Tartan to recover the unpaid condemnation awards. He stated that LPL was formed to obtain Tartan’s assets. that he believed that LPL signed a written retainer with Levine in 1997 or 1998 in which Levine agreed to represent LPL in the purchase of Tartan’s assets, and that he had not seen the retainer for many years. In August 1999, LPL acquired the assets of Tartan, including three gas stations which had been previously condemned by New York State (the State). He was led to believe that the Contract of Sale between I,PL and Tartan protected LPL‘s right to acquire the unpaid awards due from the State after the closing under the contract. He indicated that, during the contract negotiations, he spoke with Levine in the late winter/early spring of 1998 about the unpaid awards.

Having established their entitlement to summary judgment dismissing the complaint against
them, it is incumbent upon the plaintiffs to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O’Neill v Fishkill. supra). In opposition to the motion, the plaintiffs submit, among other things, an affidavit from an expert witness, copies of three briefs submitted in an appeal filed by Tartan in the action brought against it by LPL, and the deposition testimony of Levine. It is well settled that the statements of a decedent are not rendered inadmissible under the “Dead Man’s Statute” (see CPLR 45 19) when offered in opposition to a motion for summary judgment (see Phillips v Kantor & Co., 3 1 NY2d 307, 338 NYS2d 882 [ 972); Miller v Lu-Whitney, 61 AD3d 1043,  [3d Dept 2009); Lauriello v Gallotta, 59 AD3d 497, 873 NYS2d 690 [2d Dept 2009); Rosado v Kulsakdinun, 32 AD3d 282,, 820 NYS2d 239 [1st Dept 2006); McEvoy v Garcia.114 AD2d 401,494 NYS2d 125 [2d Dept 1985) Friedman v. Sills. 112 AD2d 343. 491 NYS2d 794 [2d Dept 1985).

The plaintiffs submit an expert opinion indicating that Levine clearly departed from the minimum standards of care, skill, knowledge and diligence commonly possessed by the legal profession
when he relied on section 1.O1 of the Contract of Sale to ensure that the unpaid awards would be
conveyed to LPL. In his affidavit dated June 11, 2012, Joseph N. Campolo, Esq. (Campolo) swears that section 1.01 was ambiguous as to whether the parties to the Contract of Sale intended for LPL to receive the condemnation awards, that the Blumberg form “purports to address only a condemnation between point of contract signature and closing ...,” and that there should have been specific language regarding the pre-contract takings. He states that Levine’s failure left LPL vulnerable to Tartan’s arguments in the litigation between LPL and Tartan, resulting in the settlement of that action. Campolo concludes by stating “Accordingly, assuming that it was [Levine’s] intent to obtain those condemnation awards for his client (and both Mr. Levine’s and Mr. Leon [sic] depositions establish that it was) I do believe that Mr. Levine was negligent in relying on Section 1.01 and not insisting on specific language related to those awards.
It is well settled that the opinion testimony of an expert “must be based on facts in the record or
personally known to the witness” (see Hambsch v New York City Tr. Auth., 63 NY2d 723,480 NY S2d 195 [1984] citing Cassano v Hagstrom, 5 NY2d 643,646, 187 NYS2d 1 [1959]; Shi Pei Fang v Hang Sang Realty Cory., 38 AD3d 520, 835 NYS2d 194 [2d Dept 2007]; Santoni v Bertelsmann Property, Inc., 21 AD3d 712, 800 NYS2d 676 [1st Dept 2005]). An expert “may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion” (see Shi Pei Fang v Hang Sang Realty Corp, supra). Here, Campolo has failed to address the testimony of all of the witness, including Leon, which indicate that the issue of the condemnation awards was intentionally avoided by LPL and its counsel. Neither does Campolo address the impact on the negotiations between LPL and Tartan if specific language had been requested, and whether Levine’s alleged failure was the proximate cause of any damages suffered by LPL. A review of the plaintiffs’ submission in the light most favorable to them reveals that they have failed to raise an issue of fact requiring a trial in this action. Mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595 [1980]; Perez v Grace Episcopal Church, 6 AD3d 596. 774 NYS2d 785 (2d Dept 2004]; Rebecchi v Whitmore. supra)."

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) ;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."
 

The decision is somewhat short on facts, but we guess that this case arose froma settled landlord-tenant case in which tenant then died.  His estate sued his former attorneys, and the case continues.  Frankel v Vernon & Ginsburg, LLP   2012 NY Slip Op 08425   Decided on December 6, 2012   Appellate Division, First Department   tells us that the AD often scrutinizes the "but for" portion of the case very closely.

"The IAS court properly declined to dismiss the legal malpractice cause of action. Defendants failed to sustain their burden on summary judgment of demonstrating that plaintiff would be unable to prove one of the essential elements of his claim (see Sabalza v Salgado, 85 AD3d 436 [1st Dept 2011]). On the contrary, the record demonstrated that plaintiff's decedent had viable causes of action for breach of the warranty of habitability and nuisance against defendants in the underlying action (see 61 W. 62 Owners Corp. v CGM EMP LLC, 77 AD3d 330 [1st Dept 2010], affd in part, mod in part 16 NY3d 822 [2011]; Misra v Yedid, 37 AD3d 284, 285 [1st Dept 2007]). Furthermore, the record demonstrated that plaintiff's decedent might have recovered legal fees, which alone exceeded the amount of the settlement in this matter (Real Property Law § 234). "

It seems that in this particular legal malpractice case there have been three successive motions for summary judgment.  Supreme Court decided one way, then reversed itself, and re-reversed itself.  Finally, after more depositions, it granted summary judgment on the third or fourth try.  Is this permissible?

Coccia v Liotti   2012 NY Slip Op 08273   Decided on December 5, 2012   Appellate Division, Second Department   tells us that it is and isn't permissible.  Read on:
 

"The defendant, an attorney, represented the plaintiff in a matrimonial action that was resolved by stipulation of settlement pursuant to which the plaintiff received, inter alia, $1.6 million in equitable distribution and an additional amount of annual maintenance. Thereafter, the plaintiff commenced this action alleging, among other things, legal malpractice. Specifically, the plaintiff alleged that the defendant negligently advised her to settle the underlying matrimonial action despite the suggestion of a forensic accountant that the plaintiff's husband earned, or had the ability to earn, more money than he had disclosed. In an order entered September 13, 2007, the Supreme Court denied the defendant's cross motion for summary judgment. Subsequently, in an order entered May 5, 2008, upon renewal, the Supreme Court, among other things, granted that branch of the defendant's cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant's alleged negligent advice to settle. This Court modified the order entered May 5, 2008, inter alia, upon renewal, by adhering to so much of the original determination in the order entered September 13, 2007, as denied that branch of the cross motion (see Coccia v Liotti, 70 AD3d 747). Thereafter, depositions of the plaintiff's former husband and his accountant were conducted. The defendant again moved, inter alia, for summary judgment dismissing the complaint. In support, he annexed the deposition transcripts of the former husband and his accountant which, the defendant maintained, clarified any discrepancies between the former husband's claimed income and his business records, and which further demonstrated that the financial basis for the underlying matrimonial settlement was sound. The defendant also made arguments in support of those branches of his motion which were for summary judgment dismissing the other causes of action that were duplicative of arguments he made in his earlier cross motion for summary judgment. In the order appealed from, the Supreme Court, inter alia, denied that branch of the defendant's motion which was for summary judgment [*2]dismissing the complaint.

"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" (Sutter v Wakefern Food Corp., 69 AD3d 844, 845; see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615). Here, the only branch of the defendant's motion that did not violate the general proscription against successive summary judgment motions was that branch which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant's alleged negligence in advising the plaintiff to settle her matrimonial action. This was the only branch of the defendant's motion which was based on deposition testimony of nonparty witnesses not elicited until after the defendant's earlier cross motion for summary judgment was denied (see Alaimo v Mongelli, 93 AD3d 742, 743; Auffermann v Distl, 56 AD3d 502, 502; Staib v City of New York, 289 AD2d 560). Therefore, the remaining branches of the defendant's motion for summary judgment were properly denied as violative of the rule against successive motions for summary judgment.

As to that branch of the motion which did not violate the general proscription against successive motions for summary judgment, the defendant met his prima facie burden of establishing entitlement to judgment as a matter of law (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068; Boglia v Greenberg, 63 AD3d 973, 975). The plaintiff's opposition papers, in addressing the central issue of the cause of action, consisted merely of an affirmation of counsel that made conclusory and unsubstantiated assertions, and failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). "The defendant, an attorney, represented the plaintiff in a matrimonial action that was resolved by stipulation of settlement pursuant to which the plaintiff received, inter alia, $1.6 million in equitable distribution and an additional amount of annual maintenance. Thereafter, the plaintiff commenced this action alleging, among other things, legal malpractice. Specifically, the plaintiff alleged that the defendant negligently advised her to settle the underlying matrimonial action despite the suggestion of a forensic accountant that the plaintiff's husband earned, or had the ability to earn, more money than he had disclosed. In an order entered September 13, 2007, the Supreme Court denied the defendant's cross motion for summary judgment. Subsequently, in an order entered May 5, 2008, upon renewal, the Supreme Court, among other things, granted that branch of the defendant's cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant's alleged negligent advice to settle. This Court modified the order entered May 5, 2008, inter alia, upon renewal, by adhering to so much of the original determination in the order entered September 13, 2007, as denied that branch of the cross motion (see Coccia v Liotti, 70 AD3d 747). Thereafter, depositions of the plaintiff's former husband and his accountant were conducted. The defendant again moved, inter alia, for summary judgment dismissing the complaint. In support, he annexed the deposition transcripts of the former husband and his accountant which, the defendant maintained, clarified any discrepancies between the former husband's claimed income and his business records, and which further demonstrated that the financial basis for the underlying matrimonial settlement was sound. The defendant also made arguments in support of those branches of his motion which were for summary judgment dismissing the other causes of action that were duplicative of arguments he made in his earlier cross motion for summary judgment. In the order appealed from, the Supreme Court, inter alia, denied that branch of the defendant's motion which was for summary judgment [*2]dismissing the complaint.

"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" (Sutter v Wakefern Food Corp., 69 AD3d 844, 845; see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615). Here, the only branch of the defendant's motion that did not violate the general proscription against successive summary judgment motions was that branch which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant's alleged negligence in advising the plaintiff to settle her matrimonial action. This was the only branch of the defendant's motion which was based on deposition testimony of nonparty witnesses not elicited until after the defendant's earlier cross motion for summary judgment was denied (see Alaimo v Mongelli, 93 AD3d 742, 743; Auffermann v Distl, 56 AD3d 502, 502; Staib v City of New York, 289 AD2d 560). Therefore, the remaining branches of the defendant's motion for summary judgment were properly denied as violative of the rule against successive motions for summary judgment.

As to that branch of the motion which did not violate the general proscription against successive motions for summary judgment, the defendant met his prima facie burden of establishing entitlement to judgment as a matter of law (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068; Boglia v Greenberg, 63 AD3d 973, 975). The plaintiff's opposition papers, in addressing the central issue of the cause of action, consisted merely of an affirmation of counsel that made conclusory and unsubstantiated assertions, and failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The audacity shown in this case makes the head spin.  Two brothers battle over ownership of a Long Island Nissan dealership.  More (or less) shocking is the cavalier manner in which they worked so that a divorcing wife would not get any part of the dealership in the divorce.  Did the attorney help out?  We'll never know.

Rubio v Rubio   2012 NY Slip Op 32858(U)  November 26, 2012  Sup Ct, Suffolk County  Docket Number: 24515-2012  Judge: Emily Pines is not a divorce.  It's brother against brother. 

"In response to the documentary evidence, Gary Rubio submitted an Affidavit in which he
claimed that although he had contemplated this transfer in order to raise funds in 2009 since he was n the midst of a divorce, the transfer was never consummated. Plaintiff sets forth that Defendants were aware of this fact because co-Defendant, Theodore Richman, Esq, counsel to Thomas Rubio and Joseph Rubio, so stated in a letter dated November 22.201 1 with regard to a lawsuit brought by Gary Rubio‘s ex-wife, Jennifer Giannelli, against Gary Rubio, Joseph Rubio and SmithtownNissan, Inc, seeking to set aside the October 2009 transfer. In such letter, Thomas Richman Esq advises his client not to state that a transfer of Gary Rubio’s interest had in fact occurred, since such would constitute perjury. Based upon these writings, Gary Rubio seeks sanctions against Thomas Rubio as well as the Richman Defendants for filing a frivolous motion. Gary Rubio also refers to 2009 and 2010 corporate tax returns for Smithtown Nissan, Inc, which set forth that Gary Rubio is a 25% shareholder of the corporation. Gary Rubio also asks for sanctions against Fina based upon the fact that Fina has claimed that Gary Rubio is liable to Fina for alleged violations of New York Labor Law  198-a and that such could only be possible if Gary Rubio were a shareholder of Fina’s former employer, Smithtown Nissan."

"“The well recognized doctrine of judicial estoppel is designed to protect the integrity of the
court system as a whole by prohibiting deliberate alteration of a stated position before the same or
different courts in order to obtain favorable treatment. New Hampshire v. Maine, 532 US 742 (200 1);
Festinger 11 Edrich, 32 AD 3d 412 (2nd Dep’t 2006). The doctrine prohibits a party who, having
obtained a favorable ruling based upon an asserted position, seeks to alter the position simply
because the litigant’s interests have changed. Jones Lcrng Wooten USA v Leboeuf Lamb, Greene & Mac Rae 2 43 AD 2d 168 (1” Dep’t 1998) leave to appeal dismissed, 92 NY 2d 962 (1998)”.

‘There is no question that what occurred in Watkins, supra, is akin to the scenario set forth
before the Court in the case at bar. Faced with a litigation commenced by his ex spouse, that Gary
Rubio had transferred his stock in Smithtown Nissan, Inc in 2009, in violation of the Debtor and
Creditor law, in order to avoid his obligations under the settlement of his matrimonial action, Gary
Rubio, both in sworn testimony and in verified pleadings before this Court’s colleague, Justice
Gerald Asher, stated that he had, indeed, transferred all of his shares of such entity to his father,
Joseph Rubio, in exchange for $188,509.87, which sum he utilized to make mortgage payments on the marital residence. Gary Rubio appended, in the pleadings before that Court, both a copy of the canceled check demonstrating that he had received and utilized the funds and a copy of the 2009stock transfer agreement. Now the same party states under oath before this Court that the transfer never occurred.

Gary Rubio‘s assertions that his statements do not fall within the judicial estoppel purview,
since the litigation by his ex-wife terminated in settlement as opposed to judgment are misplaced.
First, the settlement was approved by Justice Asher on the record; second, it is clear from the total
record in that case, that there was no dispute and indeed that both parties before Justice Asher
submitted sworn statements in the action before that jurist that Gary Rubio had transferred all his
shares in the corporation that is the subject of this lawsuit and was not an owner of the corporation
at the time he (appeared before Justice Asher and settled his ex-wife‘s claim of over $568.761.11 for approximately $200,000.00. The combination of the sworn pleadings and the deposition testimony
by Gar) Rubio in connection with the Giannelli action, were part of the record before another court
of coordinate jurisdiction. With regard to the statements by Thomas Richman, Esq, to his client,
Joseph Rubio, they are irrelevant, as they were never brought before the Court in that action and
because they are directly contradicted by the person seeking approval of the settlement before Justice Asher and seeking relief before this Court, upon totally contradictory bases. Indeed, the settlement of that matter before Justice Asher, in June 2012, allows the discontinuance of Ms. Giannelli’s action against the corporation, Smithtown Nissan, Inc, which she sued. There is no rational basis on which such could have occurred if Gary Rubio was still a shareholder of that entity when the stipulation was presented to the Court. The court is not unmindful of the issue of the 2010 corporate tax return. However, as damaging as that may appear and, in this Court’s opinion it should be corrected, it was not presented to a court in order to avoid a specific action, i.e. the invasion of corporate assets by the ex spouse of Gary Rubio.

Since the doctrine of judicial estoppel clearly applies to the case and prevents the Plaintiff;
Gary Rubio, from asserting that he is a shareholder of Smithtown Nissan, Inc., he lacks standing to
bring an action, incorporating any of the causes of action set forth in his complaint as each and every one of them is brought both on behalf of the corporation and is premised upon Gary Rubio’s status as a shareholder of such entity. Accordingly, the motions of Thomas Rubio, Craig Fina as  well as the Richman Defendants to dismiss this action are granted. Based upon the above , there exists no cause of action against Defendants Greenbaum and Berman, Sosman & Rosenzweig LI,C as those causes of action are based solely upon alleged aiding and abbetting the other parties, against whom the action has been dismissed."

In Bernard v Proskauer Rose, LLP; 2011 NY Slip Op 06184 ;  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]). "
 

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);  ;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?)
 

in  MCCLUSKEY -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."
 

Real estate broker is asked to find a buyer.  Broker presents a buyer, but no deal ensues.  Broker papers the transaction and sits back.  Later transaction goes through and Broker eventually seeks commission.  Sellers attorney is sues.  Is he liable?

Land Man Realty, Inc. v Faraone   2012 NY Slip Op 08218   Decided on November 29, 2012
Appellate Division, Third Department tells us the following:  it's not enough to say " I did not commit malpractice," so please let me out of the case! 
 

"The facts of this case are more fully set forth in our prior decision of this matter (70 AD3d 1246 [2010]), as well as another related decision of this Court (Land Man Realty, Inc. v [*2]Weichert, Inc., 94 AD3d 1221 [2012]). Briefly, defendants owned a 54-acre parcel of land in the Town of Wilton, Saratoga County, and entered into an exclusive listing agreement with Weichert Realtors Northeast Group to sell the property. Shortly thereafter, plaintiff's counsel sent multiple letters to, among others, defendants, claiming that it had previously presented Capital District Property, LLC (hereinafter CDP) as purchaser of the property prior to the property being listed with Weichert. Therefore, in the event that CDP purchased the property, plaintiff would be entitled to a 10% commission pursuant to an alleged oral agreement with defendants. Weichert ultimately sold the property to CDP.

Thereafter, plaintiff commenced this action against defendants, claiming that it was the procuring cause of the sale of the property and is entitled to a 10% commission pursuant to an alleged agreement with defendants. As is relevant herein, defendants, in turn, commenced a third-party action against third-party defendant, Robert W. Pulsifer, an attorney who represented defendants in the real estate transaction. Defendants claim that Pulsifer (1) failed to respond or take any action regarding plaintiff's letters asserting a claim for a commission, and (2) negotiated the contract for the sale of property to CDP in a manner that did not sufficiently protect defendants against plaintiff's commission claim. Defendants moved for summary judgment dismissing the complaint and Pulsifer moved for summary judgment dismissing the amended third-party complaint. Supreme Court denied both motions. Pulsifer now appeals.

We affirm. A legal malpractice action requires a showing that an attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession [and] the attorney's breach of this professional duty caused the plaintiff's actual damages" (McCoy v Feinmann, 99 NY2d 295, 301-302 [2002] [internal quotation marks and citations omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; M & R Ginsberg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1208-1209 [2011]). Here, although Pulsifer himself avers that based upon his legal experience he was not negligent in the advice and representation he provided to defendants, he failed to submit adequate proof establishing the applicable standard of care and whether he breached that standard. As Pulsifer failed to meet his initial legal burden of establishing his entitlement to summary judgment as a matter of law (see Jack Hall Plumbing & Heating, Inc. v Duffy, AD3d , ___, 2012 NY Slip Op 07249, *2 [2012]), his summary judgment motion was properly denied.

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);  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).

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."

Plaintiff's husband was the victim of a really serious act of medical malpractice and hired defendant Buttafuoco to handle the case.  he was successful, and settled the case for $ 3.7 million.  What followed is a morass of claims, counterclaims and accusations.

Husband needed a guardian, and Wife was appointed.  In Urias v Daniel P. Buttafuoco & Assoc., PLLC  2012 NY Slip Op 32792(U)  November 14, 2012  Supreme Court, Suffolk County
Docket Number: 11-7186  Judge: Daniel Martin we see that  Buttafuoco app led for court approval of his fee, and obtained it.  The question is, does one apply the Med mal fee structure to the entire amount of recovery and then apportion to the various defendants, or does one apply the Med Mal fee structure individually to each defendant's settlement amount.  Choice between  these two methods yields a huge difference in the fee of almost $ 200,000.

"It is undisputed that Buttafuoco represented the plaintiff in prosecuting an underlying medical
malpractice action in Suffolk County Supreme Court for injuries to her husband, Manuel Urias. The
subject retainer agreement provided that Buttafuoco’s legal fees would be calculated pursuant to
Judiciary Law 474-a (2) and (4). Due to her husband’s physical condition, Buttafuoco successfully made application to the Supreme Court Nassau County (Guardianship Court) to have the plaintiff appointed as the guardian for her husband. The order and judgment of the Guardianship Court required the plaintiff to seek the approval of said court regarding the settlement and award of legal fees in the medical malpractice action. The malpractice action was settled in open court, with the plaintiff present, on April 2. 2009 in the sum of $3,700,000. In May 2009, the plaintiff retained Newman in place of Buttafuoco to seek the necessary approvals from the Guardianship Court. On July 20. 2009, counsel for the parties in the medical malpractice action appeared before the Hon. Paul J. Baisley to obtain a change in the settlement terms of that action not relevant herein. At that appearance, Buttafuocco submitted an exhibit (Exhibit 3 ) setting forth his calculation of the legal fees due to his firm by applying the statutory sliding scale of Judiciary Law 474-a (2) against the settlement amounts attributable to the four defendants in the medical malpractice action, and he indicated that “we followed the schedule.” On or about September 29.2009, Newman moved by order to show cause seeking. among other things. the necessary approvals from the Guardianship Court. By order dated October 27, 2009, the Guardianship Court (Phelan, J.) approved the transfer of assets from the plaintiffs husband to her pursuant to Mental Hygiene Law $8 1.2 1. and denied approval of the settlement of the medical malpractice action and the legal fees due “without prejudice to renewal after the Supreme Court, Suffolk County, has had an opportunity to revisit
the legal fees.” Said order noted that “There were several defendants, and the total sum was allocated among the various defendants. Section 474-a of the Judiciary Law was used to calculate the legal fees based upon each individual defendant’s settlement amount, which resulted in a greater legal fee than if the calculations had been based upon the total sum recovered.” On or about November 9,2009, Newman moved the Supreme Court, Suffolk County for an order “confirming the amount of legal fees awarded to Plaintiffs counsel and the manner in which such legal fees were calculated ...” By order dated March 24, 2010, the Court (Baisley, J.) confirmed “the amount of the legal fees awarded to plaintiffs counsel and the manner in which such legal fees were calculated ...” On or about May 20, 201 0, Newman moved the Guardianship Court for an order approving the settlement of the malpractice action, “including the amount of legal fees awarded to Plaintiffs counsel and the manner in which such legal fees were calculated ...” By order dated June 7,2010, the Guardianship Court (Phelan, J.) granted said motion citing the findings of the Hon. Paul J. Baisley, Jr. that “the legal fees approved by the court comport with the language and mandates of the statute .. .” In her complaint, the plaintiff alleges that, at the July 20, 2009 appearance, Buttafuoco misrepresented to the court that he was following the schedule set forth in Judiciary Law 474-a (2), and that the legal fees set forth in Exhibit 3 likewise were in accordance with that schedule. The plaintiff further alleges that Buttafuoco “intentionally materially misrepresented” to her that his legal fees and expenses as set forth in Exhibit 3 were in accordance with their written retainer agreement. that Buttafuoco illegally and improperly took the sum of $710,000 as a legal fee instead of the “lawful and proper legal fee in the amount of $5 16,226.40,” and that Buttafuoco deceived the plaintiff by using the Court’s approval of his legal fees in the amount of $864,552.37 to make her think that his taking a lee of only $71 0.000 benefit ted her and her husband. In addition, the plaintiff alleges that Buttafuoco disburscd a check payable directly to her husband prior to Newnian’s application to the Guardianship Court for an order permitting the transfer of all of his assets to her, which made her husband ineligible for Medicaid benefits from the Nassau County Department of Social Services, and resulted in an additional lien against the settlement proceeds in the medical malpractice action.

Here, a review of the complaint reveals that the plaintiff has plead a cognizable cause of action
for legal malpractice. In her complaint, the plaintiff alleges that Buttafuoco disbursed a check payable directly to her husband prior to Newman’s application to the Guardianship Court for an order permitting the transfer of all of his assets to her, which made her husband ineligible for Medicaid benefits from the Nassau County Department of Social Services, and resulted in an additional lien against the settlement proceeds in the medical malpractice action. Accordingly, that branch of the defendant’s motion which seeks to dismiss the plaintiffs Sixth Cause of Action for legal malpractice pursuant to CPLR 321 1 (a.) (7) is denied."

Reading the beginning of this case immediately brought us back to a Conflicts class at law school.  We were to to analyze an auto accident in which plaintiff resided in state A and the accident took place in state B and the insurer was from state C...well you get the picture.  Here in Cambridge Integrated Servs. Group, Inc. v Faber   2012 NY Slip Op 07880   Decided on November 20, 2012
Appellate Division, First Department   a NY resident was injured in a MVA in Connecticut while employed by a NJ company who had NJ workers' compensation.
 

"On September 14, 2000, defendant Donald Pressley, a New York City resident, was injured in a tractor-trailer accident in Connecticut during the course of his employment with nonparty Cobra Express Inc., which is located in New Jersey. Fremont Compensation Company (Fremont), the workers' compensation carrier for Cobra Express, paid Pressley New Jersey workers' compensation benefits, making the last payment to Pressley on May 9, 2002.

On or about September 19, 2000, Pressley retained nonparty Paul A. Shneyer, Esq., to bring a personal injury lawsuit for injuries he sustained in the accident. When Shneyer failed to timely commence an action, Pressley commenced a malpractice action against him. The Faber defendants represented Pressley in that action and settled the case against Shneyer in December 2008. On March 24, 2009, plaintiff, the administrator for Fremont (now in liquidation), commenced the instant action to enforce a lien against the settlement proceeds.

The Faber defendants maintain that under Matter of Shutter v Phillips Display Components Co. (90 NY2d 703 [1997]), New Jersey cases holding that workers' compensation liens attach to legal malpractice recoveries (see Frazier v New Jersey Mfrs. Ins. Co., 142 NJ 590, 667 A2d 670 [1995]; Utica Mut. Ins. Co. v Maran & Maran, 142 NJ 609, 667 A2d 680 [1995]) do not apply in this case because the malpractice recovery did not duplicate the medical payments and lost wages Pressley received under workers' compensation. This argument is unavailing. Pursuant to a June 2010 order from which the Faber defendants did not appeal, New Jersey law applies to the merits of plaintiff's claims and thus, New York law regarding double recoveries is inapplicable. [*2]

Under New Jersey law, a double recovery "occurs when the employee keeps any workers' compensation benefits that have been matched by recovery against the liable third person" (Frazier, 142 NJ at 602, 667 A2d at 676 [emphasis in original]), rendering irrelevant whether the settlement of the legal malpractice action included medical expenses and lost wages. We note, however, that even if New York law applied, the settlement did not specify what it was for and therefore, we cannot conclude that no part of it was for medical expenses and lost wages.

Defendants' argument that the application of New Jersey law in this case violates New York public policy because Pressley is a New York resident fails because although defendants have shown that New York and New Jersey law differ on this issue, they have not satisfied the stringent test for rejecting New Jersey law as against New York public policy (see 19A NY Jur 2d, Conflict of Laws § 17).

Contrary to defendants' argument, the instant action is not time-barred. As agreed to by the parties, New York's three year statute of limitations is applicable. We agree with the motion court that plaintiff's claim accrued when Pressley received the settlement payment from Shneyer (see Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175-176 [1986]). "

In Simoni v Costigan   2012 NY Slip Op 07882   Decided on November 20, 2012   Appellate Division, First Department  plaintiff tries to get the ongoing personal injury action consolidated with a legal malpractice action.  Plaintiff fails.  We cannot tell why, from the decision, and the underlying Supreme Court decision is not available to us.  In general, however, Courts do not like to mix the real personal injury outcome  with the hypothetical outcome of what would have happened if the attorney did not make a mistake. 

Consider a case where a crucial piece of evidence is precluded.  The case is not dismissed, just damaged.  Plaintiff fires attorney and hires new attorney, who slogs on.  Plaintiff then says, if I'm missing a vital piece of evidence, I will be injured.  Why not have one jury decide both issues?

The Courts usually (in the first instance) say that this will be confusing to the Jury.  Here, in Simoni we see: "Although the personal injury actions and the legal malpractice action involve "a common question of law or fact" (CPLR 602[a]), consolidation could engender jury confusion and [*2]prejudice the defendants in the malpractice action (see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269, [1st Dept 2008]; Brown v Brooklyn Union Gas Co., 137 AD2d 479 [2nd Dept 1988]). "

In legal malpractice litigation there is always the "prior" or "defendant" attorney and usually a "successor" attorney.  What discovery may entail between them, and what portion of the successor's file may be disclosed?  Ingram Yuzek Gainen Carroll & Bertolotti, LLP v
Coden   2012 NY Slip Op 32741(U)   October 23, 2012  Supreme Court, New York County  Docket Number: 105841/09  Judge: Paul Wooten discusses this issue, as well as non-party discovery rules.

"Before the Court is a motion by defendants to disqualify Lewis on the basis that it violated CPLR sections  3107 an 3120(b) with respect to issuance of subpoenas on non parties and  hereby improperly and covertly obtained privileged and/or confidential documents from
defendant’s previous counsel Marc Weingard, Esq. (Weingard) of Weinberg, Gross & Pergament,
LP in the underlying action.

Lewis maintains that after receiving the J. Coden Authorization, and before issuing any
subpoenas, it contacted Weingard on January 3, 2011 via telephone to discuss obtaining
documents pursuant to the J. Coden Authorization and to inquire about the costs and timing of
production (see Lewis Opposition 14). According to Lewis, Weingard said he would be
contacting Patrick McHugh (McHugh), counsel for The Canine Fence, Co. in the underlying
action to advise that he had been asked to release documents which were under seal. On or
about January 13, 201 1 McHugh sent an e mail to Ronald Alensten, Esq. (Alensten), a member
of plaintiff, regarding the document production issues relating to the J. Coden Authorization, in
which Lewis maintains he mistakenly objects to the production of the documents pursuant to a
subpoena as it would violate the Protective Order (Lewis Opposition  16, 17)

Defendants maintain that Lewis served the subject subpoenas on January 13, 2011 and
failed to notify defendants until February 3, 2011, thereby violating CPLR  3107 and 3120(b),
which require notice to all adverse parties when such discovery devices are served on
nonparties (Notice of Motion, Coden Affirmation 11, 12). The subpoenas requested
Weingard’s entire file which was to be provided to Lewis on February 28, 201 1 , and the
subpoena scheduled Weingard’s deposition for March 28, 201 1 at 1O:OO a.m. (id. at 13, 14).
On February 9, 201 1 , J. Coden advised Lewis by letter that Fido’s Fences and Coden was not
willing to waive the attorney client privilege with respect to the subpoenaed attorneys, and they
also object to production of any documentation containing such privileged information (see
Notice of Motion, exhibit D). Defendants contend that no communication of any kind occurred
between it and Lewis regarding the subpoenas after February 9, 201 1 , and that the document
production date and deposition dated passed without any documents or information from either
Weingard or Lewis. It was J. Coden’s alleged understanding that Tufariello’s motion to quash
the Lewis subpoena stayed discovery against all nonparties.

In such cases where attorneys are proceeding against a former client, “disqualification
has been directed on a showing of ‘reasonable probability of disclosure’ of confidential
information obtained in the prior representation” (Saftler v Government Empls. Ins. Co., 95
AD2d 54, 57 [1st Dept 1983), citing Greene v Greene, 47 NY2d 477, 453 [1979]). Generally, in
such cases, an attorney will be disqualified where the party seeking that relief meets his burden
by establishing a substantial relationship between the issues in the litigation and the subject
matter of the prior representation, or where counsel had access to confidential material
substantially related to the litigation (see Saftler, 95 AD2d at 57; see also District Counsel 37 v
Kiok, 71 AD2d 587 [1st Dept 1979). However, disqualification will not be granted “where there
is no substantial relationship or where the party seeking disqualification fails to identify any
the issues in the litigation and the subject specific confidential information imparted to the attorney” (Saftler, 95 AD2d at 57)."

Defendants' motion to disqualify Lewis as plaintiff's counsel is denied. Defendants
meet their burden of establishing that a substantial relationship exists between the issues in this
litigation and the subject matter of the prior representation, as defendants herein assert a
counterclaim of legal malpractice against plaintiff relating to plaintiff's representation of
defendants in the underlying action. Moreover it is undisputed that Lewis had access to
confidential material during its inspection of documents provided by Weingard. However,
defendants have failed to identify any specific confidential material imparted to Lewis (see
Saftler, 95 AD2d at 57) and how defendants are prejudiced by the production (see Ferolifo, 949
NYS2d at 363). Additionally, defendants' belief that all nonparty discovery was stayed when
Tufariello filed her motion to quash is not supported in the record by any Court order or
stipulation."

Regular practitioners get little enough guidance in the appellate process, and reasons for dismissals and other outcomes are not always apparent or even stated.  Here, in two cases a pro-se plaintiff has her case dismissed, but with almost no guidance.  In Cascardo v Snitow Kanfer Holtzer & Millus, LLP   2012 NY Slip Op 07615   Decided on November 14, 2012   Appellate Division, Second Department  and in Cascardo v Stacchini   2012 NY Slip Op 07616   Decided on November 14, 2012  Appellate Division, Second Department  we see practically the same delphic pronouncements.  In Stacchini  the Court writes: " Contrary to the plaintiff's contention, the Supreme Court properly granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord [the plaintiff] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). "Such a motion should be granted where, even viewing the allegations as true, the plaintiff cannot establish a cause of action" (Parekh v Cain, 96 AD3d 812, 815; see High Tides, LLC v DeMichele, 88 AD3d 954, 956-957; Schwartz v Schwartz, 55 AD3d 897). "

In Sniktow we see "Here, even viewing the factual allegations of the complaint as true, they failed to state a cause of action to recover damages for legal malpractice. In this regard, the plaintiff's allegations, inter alia, that the defendants failed to present alleged evidence that the plaintiff in the underlying constructive trust action was manipulated into commencing that action against her, were irrelevant [*2]to the presentation of a viable defense against the elements of that constructive trust claim (see generally Rowe v Kingston, 94 AD3d 852, 853; Marini v Lombardo, 79 AD3d 932, 933). Accordingly, the complaint did not allege sufficient facts to state a cause of action to recover damages for legal malpractice

Here, even viewing the factual allegations of the complaint as true, they failed to adequately state a legally cognizable cause of action. Indeed, in this action against the attorneys who represented her adversaries in unrelated litigation, the plaintiff cannot allege the existence of the requisite contractual, fiduciary, or attorney-client relationship between herself and the defendants to support her various claims sounding in breach of contract, breach of fiduciary duty, and legal malpractice (see generally Breen v Law Off. of Bruce A. Barket, P.C., 52 AD3d 635, 636-637). [*2]Likewise, the plaintiff cannot properly plead reasonable reliance on the representations of another party's counsel so as to support her claim of fraud (see Mann v Rusk, 14 AD3d 909, 909-910). "

Two losses.  Same appellate panel.

Attorneys skip from firm to firm, and take cases with them.  Some cases hold that the former law firm remains on the hook even though the attorney left.  Rosenbaum v Sheresky Aronson Mayefsky & Sloan, LLP   2012 NY Slip Op 07651   Decided on November 14, 2012   Appellate Division, Second Department does not.  While in the past, the Appellate Division has written: "The statute of limitations was tolled as to defendant because the attorneys who initially handled the matter continued to represent plaintiffs in the matter, albeit at different law firms, until 2005 (see Antoniu v Ahearn, 134 AD2d 151 [1987])", here the result is different.
 

From Rosenbaum:  "As alleged in the amended complaint, the plaintiff was represented by the defendant Alton L. Abramowitz and two other members of the defendant firm Sheresky, Aronson, Mayefsky & Sloan, LLP (hereinafter the Sheresky Firm), beginning in February 2006. When Abramowitz joined the defendant firm Mayerson, Stutman, Abramowitz, LLP (hereinafter together the Mayerson Firm defendants), in or around August 2006, he continued to represent the plaintiff pursuant to a retainer agreement with that firm, as did the Sheresky Firm. According to the allegations in the amended complaint, the Mayerson Firm defendants' representation of the plaintiff continued until August 25, 2008, while the Sheresky Firm's representation of the plaintiff continued until approximately February 23, 2009. "
 

"The Mayerson Firm defendants tendered evidentiary material conclusively and indisputably demonstrating that their relationship with the plaintiff ended in March 2007, which was 19 months before the separation agreement was executed. In the interim, successor counsel, the Sheresky Firm, negotiated the separation agreement, which the plaintiff executed in November 2008. Under these circumstances, the Mayerson Firm defendants could not have been a proximate cause of the allegedly "wholly inadequate" separation agreement (see Marshel v Hochberg, 37 AD3d 559; Perks v Lauto & Garabedian, 306 AD2d 261, 261-262; Albin v Pearson, 289 AD2d 272). The remaining allegations of legal malpractice against the Mayerson Firm defendants are conclusory, and the plaintiff's affidavit failed to remedy those defects (see Hashmi v Messiha, 65 AD3d 1193, 1195; Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1022; Hart v Scott, 8 AD3d 532). Therefore, the Supreme Court properly granted that branch of the Mayerson Firm defendants' motion which was to dismiss the cause of action alleging legal malpractice insofar as asserted against them. "
 

Pryor Cashman is no stranger to legal malpractice cases. In today's NYLJBrendan Pierson reports on one such case.  The lawsuit, Fitzsimmons v. Pryor Cashman, 651360/10, was filed in August 2010.

"The plaintiffs are the trustees of three benefit funds for the Construction Workers Local 147, better known as the Sandhogs. The plaintiffs allege Pryor Cashman's malpractice allowed Melissa King, former administrator of the funds, to embezzle $42 million before she was caught. King was arrested in December 2009 and sentenced in June 2012 to six years in prison."

Pryor Cashman had been counsel to the funds for over a decade when the embezzlement came to light. The trustees allege the law firm should have noticed that the administrative fees were unusually high, and counseled the trustees to investigate and to hire an independent auditor."
 

Now, they have been ordered to pay $ 21,000 in fees for making a new motion seeking leave to appeal to the Court of Appeals. "Pryor Cashman has been ordered to pay more than $21,000 in legal fees for filing a "frivolous" motion in a legal malpractice lawsuit filed by the trustees of employee benefit funds accusing the firm of failing to provide advice that would have prevented the funds' third-party administrator from embezzling $42 million."

Plaintiff buys a co-op in 2002.  She re-finances in 2008 using the same attorney.  In 2010 she hires the same attorney to sell the unit and  learns for the first time that the certificate of occupancy permits the unit to be used only as a professional office, not for residential use.  Is an action for legal malpractice commenced in 2010 timely or barred by the statute of limitations?

Attwood v Sokol   2012 NY Slip Op 32744(U)  October 25, 2012  Supreme Court, New York County
Docket Number: 112043/2010  Judge: Saliann Scarpulla, to our surprise, holds that the action is timely.  We had always thought of the continuing representation principal as an archepellego.  If the distance between the events (islands) was less than 3 years, then one could skip from island to island and still be within the statute.  Here, there was more than 3 years between events, yet the action is timely.

"The parties do not dispute that the applicable statute of limitations for legal malpractice is three (3) years. Waggoner v. Carum, 68 A.D.3d 1, 6 (1st Dep’t 2009) (citing CPLR 24 l(6); 203(a)). “A legal malpractice claim accrues when the malpractice is committed, not when the client discovers it. Under the ‘continuous representation’ doctrine, however, a client cannot reasonably be expected to assess the quality of the professional service while it is still in progress.” West Village Assocs. Ltd. Partnership v. Balber Pickard Battistoni Maldonado & Ver Dan Tuin, PC, 49 A.D.3d 270 ( l1st Dept’t 2008). “The doctrine is ‘generally limited to the course of representation concerning a specific legal matter,’ and this is ‘not applicable to a client’s . . . continuing general relationship with a lawyer . . . involving only routine contact for miscellaneous legal representation . . . unrelated to the matter upon which the allegations of malpractice are predicated.”’ Id., quoting Shumsky v. Eisenstein, 96 N.Y.2d 164, 168 (2001).

Here, Sokol continued to represent Attwood on various real estate matters involving the premises, including her refinance in 2008 and her attempt to sell the property in 2010.See Farrauto, Berman, Fontana & Selznick v. Vorasak Keowongwan, 166 Misc. 2d 804, 808 (Yonkers City Court 1995)  where attorneys continued to represent client “on various real estate matters” involving the property . . . “the Statute of Limitations would be tolled until [defendant’s] representation ceased”).
Sokol’s attempt to establish that he did not continuously represent Attwood is unavailing. Sokol did not represent Attwood in relation to any other properties, or in any other real estate transactions, or other non-real estate matters. Additionally, Sokol testified at his deposition that the issue of  whether the premises could be used as a residence arose during the 2002 closing, when he had to “educate” the mortgage lender because the premises was not a “classic” residential apartment.
Sokol further asserts that his representation of Attwood in 2008 for the refinance of her mortgage was unrelated to her purchase, and that Attwood could have hired any attorney to assist her.  However, Attwood submitted documents produced by Sokol in discovery in this action, which show the issue of whether the premises could be used as a residence was raised that during the course of the refinance. The issue of the certificate of occupancy, therefore, was something which Sokol had to deal with continuously, from the time of the purchase and closing, to the refinance,
and eventually when Attwood attempted to sell the premises in 201 0. Accordingly, because Sokol continuously represented Attwood, the statute of limitations was tolled, and Attwood’s action against him is timely."

Once upon a time, the universally known and understood standard of whether a settlement (as against a dismissal or a verdict) of the underlying case affected the right to sue the attorney could be stated as "Was the settlement effectively compelled my mistakes of the attorney?"  Now that bedrock principal seems to have been eroded, and perhaps completely washed away.  First came the "allocution" cases in which plaintiff is asked whether they are satisfied with their attorneys' work.  The expected "yes" doomed the case.  Now, in Schloss v Steinberg ,  2012 NY Slip Op 07599  Decided on November 13, 2012  Appellate Division, First Department we see the Court completely disregard the principal.
 

"Even if defendant's acts or omissions rose to the level of negligence, plaintiff's legal malpractice claims remain speculative. Indeed, nothing in the record shows that but for defendant's negligence, plaintiff would have been awarded a larger distribution of the marital estate or received a better settlement in the matrimonial action (see Katebi v Fink, 51 AD3d 424, 425 [1st Dept 2008]; Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [1st Dept 2002]). Plaintiff's speculative arguments are insufficient to raise triable issues of fact (see Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

We reject plaintiff's claim that she was not given a fair opportunity to voice objections or concerns during the allocution in the matrimonial action. During the allocution, plaintiff acknowledged on the record that she understood and agreed with the settlement terms, and understood that it was a final and binding agreement. Accordingly, plaintiff should not be heard to disavow the allocution (see e.g. Harvey v Greenberg, 82 AD3d 683 [1st Dept 2011]). "

Pro-se litigation in legal malpractice has a poor prognosis.  There are many idiosyncratic aspects to legal malpractice cases, and Pouncy v Solotaroff    2012 NY Slip Op 07381  Decided on November 8, 2012   Appellate Division, First Department is one example.  What is the line between reasonable and unreasonable strategic choice?
 

"The IAS court properly dismissed plaintiff's claim for legal malpractice, as the complaint failed to state a claim for that cause of action. Rather, plaintiff's complaint amounts "to no more than retrospective complaints about the outcome of defendant[s'] strategic choices and tactics," with no demonstration that those choices and tactics were unreasonable (Rodriguez v Fredericks, 213 AD2d 176, 178 [1st Dept 1995], lv denied 85 NY2d 812 [1995]). In any event, plaintiff's claims are barred by the doctrine of collateral estoppel (see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; Wray v Mallilo & Grossman, 54 AD3d 328, 329 [2d Dept 2008]). "

The field of potential legal malpractice damages is narrow, and the lines surrounding permissible damages has narrowed of late.  Here, in Kodsi v Gee   2012 NY Slip Op 07417   Decided on November 8, 2012   Appellate Division, First Department  we see the blanket principal that no non-pecuniary damages are permitted.
 

"Order, Supreme Court, New York County (Carol R. Edmead, J.), entered March 3, 2011, which, to the extent appealed from as limited by the briefs, denied so much of defendants' motion for summary judgment as sought to dismiss the first, second, third and sixth causes of action, granted the motion as to the claim for damages based on emotional suffering, and denied plaintiff's cross motion for summary judgment as to liability, unanimously modified, on the law, to grant defendants' motion as to the first and second causes of action, and otherwise affirmed, without costs."

"The first cause of action, which alleges legal malpractice based on negligent delay, must be dismissed because plaintiff failed to raise an issue of fact in opposition to defendants' prima facie showing that his alleged loss and injury were not proximately caused by any of their acts or omissions (see G & M Realty, L.P. v Masyr, 96 AD3d 689 [1st Dept 2012]; Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). The record shows that defendants assisted plaintiff and his then wife in effectuating an uncontested divorce and that any harmful delays in the prosecution of the divorce were caused by the couple's indecision and inconsistence and plaintiff's conduct. After the marital stipulation they executed was rejected by the court clerk, the wife volunteered to re-execute it but plaintiff instructed her not to do so. Several months later, she changed her mind about the stipulation, after learning that plaintiff allegedly was seeing another woman and was "manipulating" his income downward and secreting assets. Thus, the record demonstrates that it was not defendants' alleged negligence but plaintiff's own actions that caused his wife to abandon the original amicable agreement, whose terms plaintiff contends were more favorable to him than the terms of the settlement agreement on which the divorce judgment was entered.

The second cause of action alleges malpractice based on conflict of interest. The record [*2]contains no evidence that any conflict of interest proximately caused plaintiff to suffer any of the harm he alleges (see Schafrann v N.V. Famka, Inc., 14 AD3d 363 [1st Dept 2005]; Estate of Steinberg v Harmon, 259 AD2d 318 [1st Dept 1999]). "

"As to plaintiff's request for damages for emotional suffering, "nonpecuniary damages ... are not available in an action for attorney malpractice" (Dombroski v Bulson, 19 NY3d 347 [2012]). "

Statutes of limitation exist so that everyone may (someday) get on with their life.  Humans need to have a known parameter after which all claims from the past are null and void.  In legal malpractice, the statute of limitations is 3 years. The starting date of those three years is open to argument and analysis.  In transactional work, the date upon which malpractice occurred may be unclear.  Beyond trying to determine the date of the departure, there is the concept of continuous representation, which holds that a client is not required to sue his attorney while that attorney continues to represent the client, and may be trying to fix the mistake.

So, we look at Board of Mgrs. of 255 Hudson Condominium v Hudson St. Assoc., LLC  2012 NY Slip Op 32669(U)  October 22, 2012  Sup Ct, NY County  Docket Number: 101578/12  Judge:  Manuel J. Mendez, for guidance from another area of the law, albeit, professional negligence of another stripe.

"Plaintiff brought this action as the governing body of a condominium association, and seeks to recover damages caused to 255 Hudson Street Condominium by those individuals and entities responsible for its construction. The damages alleged include water leaks, malfunctioning heating and cooling units and missing sprinkler heads. This action was commenced on February 14, 2012, against Hudson Street Associates, LLC (hereinafter referred to as the "Sponsor"), Chistopher Matorella and Richard Mack (principals of the Sponsor); Gotham Greenwich Construction Co., LLC, (hereinafter referred to as "Gotham") as the contractor and construction manager; Ettinger Consulting Engineering (hereinafter referred to as "Ettinger") as an engineering consulting firm; Handel 'Architects, LLP (hereinafter referred to as "Handel"), as the architect and DeSimone Consulting Engineers, PLLC (hereinafter referred to as "DeSimone") as structural engineers. The complaint asserts causes of action for breach of contract against all defendants;
negligence in performance of services against the contractor, engineers and architect; and breach of express warranty only as against the Sponsor. The plaintiff entered into a contract with the Sponsor, it alleges incorporated the agreements with all the other parties. "

"The statute of limitations on a claim against an architect that is essentially stated as breach of the ordinary professional obligations, pursuant to CPLR §214[6), has a three year statute of limitations, regardless of whether it is asserted as breach of contract or negligence (R.M. Klimment & Frances Halsband, Architects v. McKinsey & Company, 3 N.Y. 3d 538, 821 N.E. 2d 952, 788 N.Y.S. 2d 648 [20041). The statute of limitations on a claim against a design professional pursuant to CPLR §214[61, has a three year statute of limitations, regardless of whether it is asserted as breach of contract or malpractice. The three year statute of limitations begins to run from the date of termination of the professional relationship between the parties and the  completion of, "performance of significant (i.e. non-ministerial) duties under the the parties contract"(Sendar Development Co., LLC v. CMA Design Studio, P.C., 68 A.D. 3d 500, 890 N.Y.S. 2d 534 [N.Y.A.D. 1" Dept., 20091 citing to Parsons Brinckerhoff Quade & Douglas v. EnergyPro Constr. Partners, 271 A.D. 2d 233, 707 N.Y.S. 2d 30 [N.Y.A.D. 1" Dept., 20001). The date of the final certificate of occupancy, is not controlling for statute of limitations purposes, where there is no contractual responsibility for its issuance. Additional billing or a minimal amount of subsequent
work does not alter the completion date for the project (State of New York v. Lundin, 60 N.Y. 2d 987, 459 N.E. 2d 486, 471 N.Y.S. 2d 261 [1983). "

Except for that small class of errors which are apparent, open and obvious to a lay jury, an expert is needed for either side in a legal malpractice case.  As an example, and although the case does not describe the expert's testimony, its apparent that defense needed this expert to win the case.  In SCG Architects v Smith, Buss & Jacobs, LLP   2012 NY Slip Op 07288  Decided on November 7, 2012  Appellate Division, Second Department  the AD decision leads off with:
 

"The Supreme Court providently exercised its discretion in denying the plaintiffs' motion to preclude the defendant's expert from testifying due to inadequate expert disclosure pursuant to CPLR 3101(d). CPLR 3101(d)(1)(i) does not mandate that a party be precluded from proffering expert testimony merely because of noncompliance, " unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party'" (Browne v Smith, 65 AD3d 996, 997, quoting Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 711; see Aversa v Taubes, 194 AD2d 580, 582). Here, the defendant's expert disclosure, although not detailed, was adequate under the circumstances, and the plaintiffs failed to show that they were prejudiced thereby (see Flores v New York Hosp.-Cornell Med. Ctr., 294 AD2d 263, 264). "

The rest of the appeal seems to have been more or less generic:  "The jury's finding was based on a fair interpretation of the evidence, and thus was not against the weight of the evidence (see Nicastro v Park, 113 AD2d 129, 134-135).

The plaintiffs' remaining contentions concerning the jury charge and certain comments made by the trial court are unpreserved for appellate review, and we decline to address them in the interest of justice (see CPLR 5501[a][4]; Schlecter v Abbondadello, 5 AD3d 582, 583)."
 

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 ;  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. "
 

There is nothing new in the case of Jack Hall Plumbing & Heating, Inc. v Duffy   2012 NY Slip Op 07249   Decided on November 1, 2012   Appellate Division, Third Department , merely a restatement of the long-standing and settled rule that expert opinion is required to show that there was / was not a departure from good and accepted practice.  Supreme Court got it wrong, and the Third Department corrected Supreme Court, not once but twice.
 

"Soon after entering into the agreement, the relationship between the Halls and Scudder [*2]deteriorated to the point that Hall became concerned that he and his sons were in danger of losing the business due to Scudder's mismanagement. Accordingly, Hall sought legal advice from defendant H. Wayne Judge concerning how to terminate Scudder in compliance with the employment agreement and in view of the urgency caused by the perceived danger to the business. After their meeting, Judge drafted a letter for Hall to give to Scudder. The letter outlined the reasons for Scudder's termination and informed him that it was effective immediately. Hall and his sons then unanimously voted to terminate Scudder without giving Scudder notice and an opportunity to respond, after which Hall gave Scudder the letter drafted by Judge. Scudder responded by commencing an action against plaintiff for breach of the employment agreement. Although plaintiff, represented by Judge, prevailed at the trial of that action, we reversed and found that plaintiff failed to comply with the unambiguous terms of the employment agreement by terminating Scudder without any notice or opportunity to respond (Scudder v Jack Hall Plumbing & Heating, 302 AD2d 848 [2003]). Plaintiff then commenced this action alleging that defendants committed legal malpractice by negligently advising plaintiff in connection with Scudder's termination. After joinder of issue and discovery, defendants moved for summary judgment dismissing plaintiff's complaint. Finding that plaintiff's opposing papers were inadequate to raise an issue of fact, Supreme Court granted the motion.

Plaintiff contends on appeal that defendants failed to meet their initial burden of presenting evidence in admissible form establishing that they had exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in discharging their obligations to plaintiff (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Adamski v Lama, 56 AD3d 1071, 1072 [2008]). This issue of the adequacy of the professional services provided here requires a professional or expert opinion to define the standard of professional care and skill owed to plaintiff and to establish whether the attorney's conduct complied with that standard (see Tabner v Drake, 9 AD3d 606, 610 [2004]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]). Plaintiff argues that the affirmation by Judge submitted in support of defendants' motion for summary judgment fails to establish his prima facie compliance with the standard of care. We must agree.

According to Judge, based on his reading of the contract and plaintiff's bylaws, he formed a legal opinion that the employment agreement was ambiguous and that immediate termination was consistent with its terms. Judge was motivated, however, by Hall's desire for urgency and his own view that engaging in the termination process provided for by the agreement would damage plaintiff's business. While Judge offers his legal conclusion and the business-related motivation behind it, his affirmation is insufficient to establish compliance with the applicable standard of care because he neither defines that standard nor explains that a reasonable attorney would reach the same conclusion that he did on the facts as they were presented to him. In short, Judge's explanation of the urgency of the business factors that he considered in formulating the advice that he gave fails to establish that his legal advice was within the standard of care.

Further, Judge's reliance on the fact that he initially prevailed at trial as proof that his interpretation of the employment agreement was reasonable is also misplaced as that order was reversed by this Court on the law (Scudder v Jack Hall Plumbing & Heating, 302 AD2d at 851). Accordingly, the argument that any error was one of judgment in selecting between reasonable alternatives must fail in light of the lack of a prima facie showing that the legal advice provided was a reasonable course of action. Inasmuch as defendants failed to shift the burden to plaintiff [*3]to demonstrate a departure from the standard of care, the motion for summary judgment should have been denied (see Suppiah v Kalish, 76 AD3d 829, 832 [2010]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d at 927; Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 284 [1999]). "

In times of emergency, it might be a bit nerdish to worry about filing dates, but...

It's obvious that the failure to file papers  on time can be a rich source of legal malpractice litigation, but for the period of October 26, 2012 until further notice, there is little that might arise in this area due to Executive Order No. 52:

It suspends CPLR 201, 5513, Court of Claims Act Section 25, a slew of Criminal Procedure Law section, and "any other statute, local law, ordinance, order, rule or regulation or part thereof, establishing limitations of time for the filing or service of any legal action, notice or other process or proceeding that the courts lack authority to extend through the exercise of discretion, where any limitation of time concludes during the period commending from the date that the disaster emergency was declared pursuant to Executive order Number 47, issued on October 28, 2012 until further notice."

Selection of an expert and the use of an expert at summary judgment has been fraught with uncertainty after Construction by Singletree Inc. v. Lowe in which Supreme Court declined to consider an expert affidavit, as no CPLR 3101 had been filed prior to the motion.  Now, in Rivers v Birnbaum   2012 NY Slip Op 06935   Decided on October 17, 2012   Appellate Division, Second Department   Belen, J. the uncertainty is over.
 

"BELEN, J.This case presents us with an opportunity to clarify the rule regarding a court's consideration of an expert's affirmation or affidavit submitted on a timely motion for summary judgment where the offering party did not disclose the expert during discovery pursuant to CPLR 3101(d)(1)(i) before the filing of a note of issue and certificate of readiness. We hold that a party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment. "

"Turning to the legislative history, as originally enacted in 1962, CPLR 3101 exempted expert witnesses from disclosure (see CPLR former 3101 [L 1962, ch 308]; Governor's Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 6). Through the 1985 amendment to CPLR 3101, of which subdivision (d)(1)(i) is a part, the Legislature intended to "expand disclosure" (David D. Siegel, 1986 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:9, at 5), by requiring, for the first time, that parties disclose their experts, but deliberately did so only in the limited context of requiring a party, upon request, to make a pretrial disclosure of expected expert witnesses at trial.

CPLR 3101(d)(1)(i) was originally conceived as part of a major overhaul of medical malpractice litigation procedures. The new requirement in this overhaul that parties disclose their expert trial witnesses was intended to reduce the delay between the "medical malpractice event and the ultimate disposition," which was a major contributor to increased medical malpractice insurance premiums (Governor's Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 9). Therefore, the amendment was conceived as part of a multi-pronged effort "to expedite litigation, to encourage prompt settlements and to deter parties from asserting frivolous claims and defenses" (id. at 9).

Thereafter, the provision was "plucked out" of its place in the original medical malpractice litigation reform bill and made applicable to all forms of litigation (see David D. Siegel, 1986 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:9, at 4; Rep No. 95 of Comm on State Legis, Bill Jacket, L 1985, ch 294 at 16). Modeled on Rule 26 of the Federal Rules of Civil Procedure, the proposed amendment marked a departure from the prohibition on expert disclosure in civil litigation by generally allowing parties "to conduct basic disclosure regarding experts without court order" (1985 Rep of the Advisory Comm on Civ Prac at 49). However, this expansion was relatively limited, as it only required, upon request, pretrial disclosure of the identity and qualifications of each person expected to be called at trial as an expert witness and the substance of their expected testimony, but did not require a party to disclose the experts it had retained but had not determined would be called at trial (see id.; Governor's Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 4 [noting that "(s)ection four (of the bill) would require the disclosure of the qualifications of experts and the substance of their testimony prior to trial in civil actions"]).

Moreover, although the Legislature recognized that "the testimony of expert witnesses is often the single most important element of proof in malpractice and other personal injury actions" (Governor's Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 9), the Legislature limited disclosure inasmuch as it did not provide for examinations before trial of expert witnesses (see Rep No. 95 of Comm on State Legis, Bill Jacket, L 1985, ch 294 at 16; compare id. with Fed Rules Civ Pro 26[b][4][A] ["A party may depose any person who has been identified as an expert whose opinions may be presented at trial"]).[FN6] [*6]

In its current form, CPLR 3101(d)(1)(i) requires a party, upon request, to disclose information regarding each person it expects to call as an expert witness prior to trial, without specifying that such disclosure must be made prior to the filing of the note of issue and certificate of readiness. Further, the language of CPLR 3101(d)(1)(i) anticipates that the disclosure of expert trial witnesses might not occur until near the commencement of trial. As such, the statute implicitly recognizes that parties often delay the retaining of an expert until it is apparent that settlement is unlikely and a trial will be necessary. Significantly, even if a party has retained an expert during discovery and is the recipient of a CPLR 3101(d)(1)(i) request for trial expert disclosure, it has no affirmative obligation to disclose that expert during discovery unless it "expects to call [that expert] as an expert witness at trial" (CPLR 3101[d][1][i]; see Vigilant Ins. Co. v Barnes, 199 AD2d 257).

Based on the plain language and intent of the statute, which do not automatically preclude experts disclosed near the commencement of trial from testifying at trial, there is no basis for concluding that a court must reject a party's submission of an expert's affidavit or affirmation in support of, or in opposition to, a timely motion for summary judgment solely because the expert was not disclosed pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness, or prior to the making of the motion [FN7]. We further note that a court has the discretion, under its general authority to supervise disclosure, to impose a specific deadline for expert disclosure under CPLR 3101(d)(1)(i), for example, prior to the filing of a note of issue and certificate of readiness or prior to a motion for summary judgment (see Mauro v Rosedale Enters., 60 AD3d 401). Moreover, where a trial court sets a specific deadline for expert disclosure, it has the discretion, pursuant to CPLR 3126, to impose appropriate sanctions if a party fails to comply with the deadline (see MacDonald v Leif, 89 AD3d 995; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654; Bomzer v Parke-Davis, 41 AD3d 522; Maiorino v City of New York, 39 AD3d 601) .

We recognize that certain decisions of this Court may have been interpreted as standing for the proposition that a party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness, by itself, requires preclusion of an expert's affirmation or affidavit submitted in support of a motion for summary judgment. For example, in Construction by Singletree, Inc. v Lowe (55 AD3d 861), a subcontractor hired in a home construction project commenced an action against the general contractor, J.C. Construction Management Corp. (hereinafter J.C.), and J.C.'s client, Sheldon Lowe, trustee under the Sheldon Lowe declaration of trust dated January 15, 1999 (hereinafter Lowe), to recover money it allegedly was owed in connection with the project. Lowe cross-claimed against J.C. seeking, inter alia, to recover damages for breach of warranty based on J.C.'s allegedly improper installation of the flooring and insulation systems in the home, and seeking payment pursuant to a liquidated damages clause that had been added to the contract between himself and J.C.

After the completion of discovery, J.C. moved for summary judgment dismissing, inter alia, the aforementioned cross claims. In opposition, Lowe submitted, among other things, affidavits from purported experts in the flooring and air conditioning industries, opining that the flooring and insulation systems in the home were faulty, and estimating the costs to repair each system. A majority of the panel of Justices affirmed the determination of the Supreme Court to grant J.C.'s motion for summary judgment, concluding that J.C. established its prima facie entitlement to judgment as a matter of law, and that Lowe failed to raise a triable issue of fact in opposition. As to Lowe's opposition, the majority stated that "[t]he Supreme Court did not improvidently exercise its discretion in declining to consider the affidavits of the purported experts proffered by Lowe, since Lowe failed to identify the experts in pretrial disclosure and served the affidavits after the note of [*7]issue and certificate of readiness attesting to the completion of discovery were filed in this matter" (id. at 863 [emphasis added]). The majority further explained:

"As it is undisputed that Lowe failed to identify any experts in pretrial disclosure whom he intended to call to testify at trial concerning whether the work was faulty or the extent of his alleged compensatory damages arising from that breach of warranty, and did not proffer any explanation for such failure, it was not an improvident exercise of discretion for the Supreme Court to have determined that the specific expert opinions set forth in the affidavits submitted in opposition to the motion for summary judgment could not be considered at trial" (id.).
Additionally, in addressing the dissent by Justice Carni, which concluded that CPLR "3101(d)(1)(i) applies only to an expert whom a party intends to call at trial," and not an expert used in a motion for summary judgment, the majority indicated that the affidavits of Lowe's experts were inadmissible at trial (id.). The majority arguably found the affidavits of Lowe's experts inadmissible in part because of Lowe's failure to disclose its experts prior to the filing of the note of issue and certificate of readiness. Such a conclusion suggests, first, that Lowe's failure to disclose the experts prior to the filing of the note of issue and certificate of readiness rendered the disclosure untimely pursuant to CPLR 3101(d)(1)(i), and, second, that such untimely disclosure rendered the experts' affidavits inadmissible. Indeed, some of our decisions may be interpreted as so holding and as setting forth a bright-line rule in which expert disclosure pursuant to CPLR 3101(d)(1)(i) is untimely if it is made after the filing of the note of issue and certificate and readiness and, thus, in the absence of a valid excuse for such a delay, a court must preclude an affidavit or affirmation from an expert whose identity is disclosed for the first time as part of a motion for summary judgment (see e.g., Stolarski v DeSimone, 83 AD3d 1042, 1044-1045; Ehrenberg v Starbucks Coffee Co., 82 AD3d 829; Pellechia v Partner Aviation Enters., Inc., 80 AD3d 740; Vailes v Nassau County Police Activity League, Inc., Roosevelt Unit, 72 AD3d 804; Gerardi v Verizon N.Y., Inc., 66 AD3d 960; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917; King v Gregruss Mgt. Corp., 57 AD3d 851, 852-853; Colon v Chelsea Piers Mgt., Inc., 50 AD3d 616; see also DeLeon v State of New York, 22 AD3d 786, 787; Herrera v Lever, 34 Misc 3d 1239[A], 2012 NY Slip Op 50477 [U], *2-4).

We now clarify that the fact that the disclosure of an expert pursuant to CPLR 3101(d)(1)(i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely. Rather, the fact that pretrial disclosure of an expert pursuant to CPLR 3101(d)(1)(i) has been made after the filing of the note of issue and certificate of readiness is but one factor in determining whether disclosure is untimely. If a court finds that the disclosure is untimely after considering all of the relevant circumstances in a particular case, it still may, in its discretion, consider an affidavit or affirmation from that expert submitted in the context of a motion for summary judgment, or it may impose an appropriate sanction.

We further reiterate that a trial court, under its general authority to supervise disclosure deadlines, and consistent with its discretion to supervise the substance of discovery, may impose a specific deadline (for example, prior to the filing of the note of issue and certificate of readiness or prior to the making of a motion for summary judgment), for the disclosure of experts to be used in support of a motion for summary judgment, or who are expected to testify at trial, or both. Moreover, where a trial court has set a specific deadline for expert disclosure, it has the discretion, pursuant to CPLR 3126, to impose appropriate sanctions if a party fails to comply with the deadline (see MacDonald v Leif, 89 AD3d 995; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654; Bomzer v Parke-Davis, 41 AD3d 522; Maiorino v City of New York, 39 AD3d 601) .

As clarified, this rule is consistent both with the statute and with the general purpose of summary judgment itself. Summary judgment is the procedural equivalent of a trial and "must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable" (Dykeman v Heht, 52 AD3d 767, 769). In considering a motion for summary judgment, the function of the court is not to determine issues of fact or credibility, but merely to determine whether such issues exist (see Gitlin v Chirinkin, 98 AD3d 561; Dykeman v Heht, 52 AD3d at 769; Tunison v D.J. Stapleton, Inc., 43 AD3d 910).

The preclusion of an expert's affirmation or affidavit submitted in the context of a motion for summary judgment based solely on a party's failure to disclose the expert pursuant to [*8]CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not necessarily advance the court's role of determining the existence of a triable issue of fact. In the context of a motion for summary judgment in a medical malpractice action, generally, a party must submit an affidavit or affirmation from an expert medical provider to meet its prima facie burden, or to raise a triable issue of fact in opposition (see Post v County of Suffolk, 80 AD3d 682, 685; Dunn v Khan, 62 AD3d 828, 829). Precluding an expert's affidavit solely on the ground that the offering party did not disclose the expert's identity pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness is not consistent with the purpose and procedural posture of a motion for summary judgment.

In the matter at bar, the Supreme Court providently exercised its discretion in considering the experts' affirmations submitted by the moving defendants, and the additional affidavits submitted by Bliss, in support of their respective motions for summary judgment, despite the fact that they did not disclose those experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness.[FN8] "

Reading this case produces an image of a train rolling through the countryside, without anyone at the controls.  It is the story of a car accident, an unjoined party, and mistake after mistake.  In the end plaintiffs are non-suited and all the efforts are for naught.

Di Giacomo v Michael S. Langella, P.C.  2012 NY Slip Op 32658(U)  October 11, 2012
Supreme Court, Suffolk County  Docket Number: 08-7307  Judge: John J.J. Jones J

This action for legal malpractice was commenced to recover damages allegedly sustained by the
plaintiffs as the result of the failure of the defendants to properly present a motion to vacate the dismissal of the plaintiffs’ underlying action for personal injuries. On May 23, 2000, the plaintiff Lisa Di Giacomo Frangione (Di Giacomo) was involved in a motor vehicle accident. In May 2000, the plaintiffs retained Ira Levine, Esq. (Levine), to commence an action against Barbara Daniels (Daniels), the owner and operator of the other vehicle involved in the underlying accident. On September 18, 2003, the plaintiff executed a Consent to Change Attorney substituting Hankin, Handwerker & Mazel, PLLC (HHM) as her attorneys in place of Levine. Depositions in the personal injury action were conducted on or about April 2,2004, and Daniels testified that at the time of the accident she had been operating her vehicle in the course of her employment with Weight Watchers. After the underlying action (or Daniels action) had been placed on the trial calendar, HHM moved for leave to withdraw as counsel for the plaintiffs. By order of the Court dated May 15, 2006 (Molia, J.), the motion was granted, counsel was directed to serve a copy of the order on the plaintiffs on or before May 19, 2006, and the discharge was to be effective ten days after filing proof of service. In addition, the order set down July 12,2006 as the date for jury selection. When the plaintiffs failed to appear for jury selection on July 12,2006, the matter was adjourned until July 19, 2006. The record before this Court reveals that the plaintiffs again failed to appear on July 19,2006, and upon oral application made on the record by defense counsel in the underlying action, the action was dismissed with prejudice by the Honorable Denise F. Molia. On or about August 9,2006, the plaintiff retained the defendants to represent them in the underlying action. The defendants prepared and submitted an order to show cause dated August 10, 2006, seeking to vacate the plaintiffs default and to restore the case to the trial calendar. By order dated November 16, 2006, the Court (Molia, J.) denied the plaintiffs’ motion to vacate their default ."

"On February 20, 2008, the plaintiffs commenced this action for legal malpractice against Levine,
HHM, Stacy Rinaldi Guzman, Esq. (Guzman), and the defendants. Among the allegations set forth in the complaint is a claim that the failure to timely join Weight Watchers ( Daniel’s employer) as a party in the underlying action constituted malpractice. In addition, it is asserted that after HHM was relieved as plaintiffs’ counsel, the plaintiffs were represented by Guzman, who had agreed to appear on the plaintiffs’ behalf to obtain an adjournment of the July 12,2006 court date, but failed to do so. It is further alleged that the defendants failed to include an affidavit of merits with the motion to vacate the dismissal of the plaintiffs’ underlying action resulting in its denial, and the loss of the plaintiffs’ ability to recover damages for their injuries.In early 2008, Levine, HHM, Guzman and the defendants separately moved to dismiss the plaintiffs’ complaint on the grounds, among other things, that it failed to state a cause of action. By order dated October 30,2008, the undersigned granted the motions of Levine, HHM and the defendants, dismissing the complaint against them. By order entered on January 12, 2009, the undersigned granted Guzman’s motion, dismissing the complaint against her. After the plaintiffs’ appealed from the judgments entered pursuant to those orders, the Decision and Order of the Appellate Division, Second Department, dated September 14, 20 10, affirmed the dismissal of the complaints against Levine, HHM and Guzman, and reversed that branch of the order dismissing the complaint against the defendants. In a stipulation dated June 15, 20 1 1, the parties agreed to amend the caption to reflect the dismissals in favor of Levine, HHM and Guzman. Said stipulation was so ordered on July 13, 201 1, and filed with the Clerk of the Supreme Court on July 18,2011. Thereafter, the action proceeded against the  defendants and, after all discovery was completed, a compliance order dated September 7,201 1, directed the plaintiffs to file a note of issue on or before October 7, 201 1. The computerized  records maintained by the Court reflect that the plaintiffs filed a note of issue on October 28, 201 1, resulting in the caption set forth above.’

"At his deposition, the defendant Michael S. Langella (Langella) testified that he was retained by
the plaintiffs on or about August 9,2006, to attempt to vacate the dismissal of the underlying action, to restore the action to the trial calendar, and to litigate that action. He decided to move by order to show cause as quickly as possible to avoid a claim by Daniels that she was prejudiced in the interim. Langella indicated that he was aware of the legal standard required to vacate a default,  and that his affirmation and the affidavit of Di Giacomo, submitted in support of the order to show cause, established that the plaintiffs had meritorious causes of action against Daniels. He acknowledged that the order to show cause did not state how the accident happened, and that the court order denying the motion stated that it was denied because it did not contain any proof regarding the merits of the plaintiffs’ action against Daniels. Langella further testified that he was aware of the facts surrounding the dismissal of the Daniels action, and that the case had been on the trial calendar and adjourned a number of times. He indicated that he spoke with Levine by telephone to corroborate the plaintiffs’ claim that Di Giacomo had spoken with Guzman to obtain an adjournment of the July 12, 2006 court date, that he did not advise the plaintiffs that they had a legal malpractice claim against Levine, and that he did not receive the plaintiffs’ file from HHM until October 10, 2006. He stated that he handled a subsequent motion to reargue the denial of the order to show cause differently, attaching a doctor’s affirmation and Levine’s affirmation. Langella testified that the written retainer signed by the plaintiffs provides that he and his firm were going to represent them to collect compensation for their injuries in the car accident, and to sue any persons or entities that may be liable to them for damages under the law. He indicated that the  retainer stated that the plaintiffs would be responsible for the costs of any appeals, but that he did not charge them for the costs of the two appeals that he prosecuted on their behalf in the Daniels action. He stated that “based on the circumstances here, I believed that it was my obligation to undertake those costs and responsibilities.” He believed that Di Giacomo should have been compensated for the injuries that she suffered in the car accident. Langella further testified that the plaintiffs’ actions did not contribute lo the denial of the motion to vacate their default, that he was not aware of any third party that would be responsible for the plaintiffs’ damages during his representation of them, that he was not aware of any issues regarding privity of contract regarding the subject retainer, and that he is not claiming that he made any errors in judgment in representing the plaintiffs. He further stated that he had no knowledge that would indicate that the plaintiffs are not the real parties in interest in this action, and that he did not have any facts that would support a claim that this action is barred by the statute of limitations, or that the plaintiffs lack standing to bring this action."

Our meme is that legal malpractice is ubiquitous and may arise in almost any setting.  Here, in a medical malpractice case we see what could have been a nasty legal malpractice had the AD no intervened.  In Westchester, cases go the the Trial Assignment Part which has broad discretion in the scheduling of trials.  There is great tension in the scheduling of trials.  On the one hand, attorneys need to fully book their time in order to make a living.  On the other hand, there are at least two and often more law firms all booking cases (plaintiff and defense) and trying to make a living.  In order to try a case, one needs witnesses, and experts each have their own schedules, with vacations and professional responsibilities and other trials.  Its a challenge to get a case tried. Cases get dismissed when the process gets too hard, and parties are injured.  Legal mal often follows.

In Vera v Soohoo 2012 NY Slip Op 07104  Decided on October 24, 2012  Appellate Division, Second Department  we see how one effort came apart. 
"On January 4, 2010, David Pierguidi of The Pagan Law Firm, P.C., appeared on behalf of the plaintiff, and notified the Supreme Court that the plaintiff's expert, who was of paramount importance to the plaintiff's case, was unavailable to testify. Counsel provided the Supreme Court with an affidavit from the expert, in which he stated that he would be away on vacation from January 5 through January 13, and that the vacation could not be canceled. Counsel informed the Supreme Court that the parties had conferred and would all be available to try the case in the middle of February. The Supreme Court, after noting that the case was eight years old, offered to adjourn the matter until January 14. Counsel for Malhotra inquired as to how long the plaintiff's case would last, noting that he had a case on January 25, in Rockland County, and a case in federal court scheduled for February 1. The plaintiff's counsel responded that his case alone would take three days to try, and alerted the court that his firm had a conflict with another case that was being tried in Kings County. In response, the Supreme Court directed the law clerk to read the procedural history of the case into the record. While she was still doing so, the Supreme Court cut her off, stating, "that's enough." Then, without further comment or questions about plaintiff's counsel's claimed scheduling conflict, the Supreme Court, sua sponte, dismissed the action pursuant to 22 NYCRR 202.27, stating "this is a fault [sic] dismissal." The court subsequently issued a written order indicating that the action was being dismissed for counsel's failure to proceed to trial on January 4, 2010.

The plaintiff timely moved to vacate the order and restore the action to the action to the trial calendar. In the moving papers, the plaintiff's counsel affirmed that the trial date offered by the Supreme Court, January 14, 2010, conflicted with a case entitled Bryan v Hurwitz that his firm was scheduled to try on January 19, 2010, and that Bryan v Hurwitz had a 1999 index number. In an order dated June 4, 2010, the Supreme Court denied the plaintiff's motion, finding that, while she had a potentially meritorious cause of action, she had failed to provide a reasonable excuse for her inability to proceed on January 4, 2010, or January 14, 2010.

Under 22 NYCRR 202.27, a court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar (see Fink v Antell, 19 AD3d 215; Johnson v Brooklyn Hosp. Ctr., 295 AD2d 567, 569; Farley v Danaher Corp., 295 AD2d 559, 560). In order to be relieved of that default, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see e.g. Felsen v Stop & Shop Supermarket Co., LLC, 83 AD3d 656).

Here, the plaintiff's proffered reason for being unable to proceed on January 4, 2010, was that her expert was unavailable to testify because of a scheduled vacation between January 5 and January 13, 2010, which the expert could not cancel. That excuse was a reasonable one (see Vorontsova v Priolo, 61 AD3d 556, 556-557; Conde v Williams, 6 AD3d 569, 570; Goichberg v Sotudeh, 187 AD2d 700, 701; cf. Kandel v Hoffman, 309 AD2d 904; Spodek v Lasser Stables, 89 AD2d 892). Indeed, the Supreme Court accepted that excuse, as evidenced by its offer during the colloquy on January 4 to adjourn the trial to January 14. In addition, in its order denying the plaintiff's motion to vacate the default, the Supreme Court stated that it had been willing to adjourn the trial to accommodate the expert's vacation, tacitly acknowledging that it had concluded that the excuse was reasonable. Nevertheless, it held in that order that the plaintiff's action should be dismissed, in part, because the record was silent as to when the plaintiff's counsel informed his expert of the trial date, when the expert scheduled his vacation, and when counsel learned of the expert's vacation schedule. However, that claimed justification for dismissing the plaintiff's action, which is adopted by the dissent, is not supported by the record since the Supreme Court never mentioned any of those enumerated deficiencies during the colloquy on January 4, 2010.
Even accepting the post hoc conclusion that the action was validly dismissed for the failure to proceed on January 14, a reasonable excuse for that failure was provided. The plaintiff's counsel explained that his firm had another trial involving a medical malpractice claim scheduled in Kings County for January 19, 2010, that the case had been marked as final, and that it was older than this case. The plaintiff's counsel noted that, in the instant action, the presentation of his case alone would take three days, and, thus, depending on the length of the case presented by the Hospital and Malhotra, there was the potential for a conflict between the Kings County case and this case. Thus, it is evident from the record that counsel was trying to avoid the "overbooking of cases" (Pichardo-Garcia v Josephine's Spa Corp., 91 AD3d 413, 414 [internal quotation marks omitted]; see Perez v New York City Hous. Auth., 47 AD3d 505, 505). While we agree with the dissent that there was no actual conflict on January 14, the point is that there was the potential for conflict on January 19 when the two trials might overlap, and the plaintiff's counsel was attempting to avoid creating a conflict for his firm. Moreover, contrary to our dissenting colleague's assertion, counsel indicated that The Pagan Law Firm, P.C., consisted of only three lawyers, and that William Pagan was the only attorney from the firm qualified to try medical malpractice cases. The dissent characterizes this contention as "unsubstantiated and self-serving after-the-fact," since it was not made until counsel for the plaintiff submitted reply papers on the motion to vacate. However, this contention was made in response to arguments advanced by the Hospital and Malhotra, which is the proper function of reply papers (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678; Lebar Constr. Corp. v HRH Constr. Corp., 292 AD2d 506, 507). Therefore, under the circumstances of this case, we conclude that the plaintiff provided a reasonable excuse for the inability to proceed on January 4, 2010, and January 14, 2010 (see Mayo v New York Tel. Co., 175 AD2d 390, 391; see also Krivda v Liberty Lines Express, Inc., 27 AD3d 260, 261; cf. McKenna v Connors, 36 AD3d 1062, 1063).

We've noted in the past that legal malpractice cases sometimes have a history of legal malpractice within them. As an example, Moray v Koven & Krause, Esqs. 2010 NY Slip Op 07573 ; ;Court of Appeals ;Read, J. serves well. it involves a legal malpractice case levied against a former attorney who was involved in a real estate transaction gone bad. This case fared badly too, until Judge Read delivered the unanimous decision,
 

"On December 31, 2007, plaintiff Joseph Moray commenced this action for legal malpractice, breach of contract and professional negligence against defendant Koven & Krause, Esqs. by filing a summons with notice, which identified Warren Goodman, Esq. as plaintiff's attorney. The summons with notice was apparently served on defendant on February 5, 2008.

On February 25, 2008, defendant served Goodman with a notice of appearance [*2]and a demand for a complaint. When the demand did not prompt a response, defendant on April 22, 2008 moved to dismiss the action pursuant to CPLR 3012 (b).

By letter dated May 6, 2008, attorney Preston Leschins informed defendant's professional liability insurance carrier that his office had been "consulted" by plaintiff "in connection with" plaintiff's claim "with a view towards substituting for" Goodman. The letter characterized Goodman as plaintiff's "former counsel" who was "no longer practicing law." Leschins asked for "the opportunity to speak with" the carrier about "resolution [of the matter] in an amicable fashion," and at the carrier's "earliest convenience." Plaintiff was copied on this letter.

On May 23, 2008 — the motion's return date — defendant's counsel had a conversation with Goodman, "who advised that he had been suspended from the practice of law months earlier"; at Goodman's request, defendant's counsel agreed to adjourn the motion to dismiss until June 13, 2008. Later that day, he spoke to Leschins, "who confirmed that he had consulted with plaintiff weeks earlier," but "refused to state whether he would be appearing as attorney for plaintiff" in the lawsuit.

On or near the adjourned return date, Goodman — indicating that he was mindful that his license had been "suspended on or about January 24, 2008" and was therefore "being careful not to practice law" — submitted a "factual" affidavit in opposition to the motion to dismiss. Styling himself as plaintiff's "former attorney," Goodman stated that he had "advised [his] former client in writing of [his] situation and told him to get new counsel"; however, he did not say when he did this. Goodman further represented that he "[understood] that [plaintiff had] been diligently pursuing new counsel," but had "not yet retained a new attorney" and was "still continuing to look for a new lawyer."

"On appeal, plaintiff was represented by counsel. His new attorney invoked CPLR 321 (c), which mandates that"[i]f an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs."

On May 12, 2009, the Appellate Division affirmed Supreme Court's order, concluding that the trial court "did not improvidently exercise its discretion in granting the defendant's motion to dismiss the action" (62 AD3d 765, 765 [2d Dept 2009]). The court observed that because "plaintiff's contention that the action was stayed pursuant to CPLR 321 (c) [was] raised for the first time on appeal," it "[was] not properly before [the Appellate Division]." We subsequently granted plaintiff permission to appeal, and now reverse.

The command of CPLR 321 (c) is straightforward: if an attorney becomes disabled, "no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs" (emphasis added). As the Practice Commentaries explain, CPLR 321 (c) brings about "an automatic stay of the action," which "goes into effect with respect to the party for whom the [disabled] attorney appeared" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR [*4]C321:3, at 183)[FN2]. As a result,

"[d]uring the stay imposed by CPLR 321 (c), no proceedings against the party will have any adverse effect. It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days . . . If, at the end of the period, the party has failed to obtain new counsel (or elected to proceed pro se), the proceedings may continue against the party" (id.).

The stay is meant to "afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action" (Hendry v Hilton, 283 App Div 168, 171 [2d Dept 1953] [discussing Civil Practice Act § 240, the predecessor statute to CPLR 321 (c)]).
This lawsuit was automatically stayed by operation of CPLR 321 (c) on January 24, 2008, the date when plaintiff's attorney was suspended from the practice of law. Defendant never acted to lift the stay by serving a notice upon plaintiff to appoint new counsel within 30 days. Thus, Supreme Court's order dismissing the action must be vacated (see e.g. Galletta v Siu-Mei Yip, 271 AD2d 486, 486 [2d Dept 2000] ["Since the judgment entered upon the defendants' default in appearing at trial was obtained without the plaintiff's compliance with CPLR 321 (c), it must be vacated"]; McGregor v McGregor, 212 AD2d 955, 956 [3d Dept 1995] ["The record reveals no compliance with the leave or notice requirements of CPLR 321 (c). The appropriate remedy for a violation of CPLR 321 (c) is vacatur of the judgment"]). "
 

Today's New York Law Journal reports that attorney collections cases are up, and as many as 7 a week are being filed in New York County. As morning follows night, there will be a commensurate number of legal malpractice counterclaims. Christina Simmons writes:Suing clients for unpaid legal fees could become routine as firms are growing more assertive about collecting overdue bills.

  "Shari Klevens, a McKenna Long Aldridge partner in Washington, D.C., and Atlanta who represents malpractice insurers and firms sued for malpractice, said she believes the number of suits against clients is increasing because of the economic environment, where firms are less likely to let go of a large fee.

But she said she doesn't recommend litigation as a first step."As soon as you say 'you didn't pay it,' they say 'well the work isn't good,'" Klevens said.Malpractice claims are brought against firms in 42 percent to 47 percent of cases where the firm has sued for fees, Klevens said. Firms also face the risk of forfeiture or disgorgement if the client claims the legal services didn't meet the appropriate standard, she said.The number of suits against former clients tends to increase at the end of the year when firms try to wrap up their collections, she said.

"Clients who are not paying are identified in the third quarter" and through the fourth, she said.""Suing clients for unpaid legal fees could become routine as firms are growing more assertive about collecting overdue bills."There was a time when a lot of firms would feel it was unseemly to bring an action against a client" regardless of the amount owed, said Martin Wasser, a partner at 75-lawyer Phillips Nizer. "I think that's changed."

"Firms are more aggressive in following up with bills than they've ever been," said Wasser, whose firm is among the many that have filed suit to collect fees from former clients this year.The New York Law Journal reviewed law firm collection suits against former clients filed in the past two months in Manhattan Supreme Court. Each week, between three and seven such suits were filed during the period.Several attorneys said lawsuits are a last resort and that whether to sue a client is decided on a case-by-case basis depending on factors such as the amount owed, the length of the relationship and whether the client can afford to pay.

The fee suits were brought by large and small firms, and boutiques and solo attorneys who have pursued amounts ranging from a few thousand to hundreds of thousands of dollars or more.On one day in September, Epstein Becker & Green filed four complaints against former clients, seeking a collective $390,000. The legal services provided to clients ranged from litigation to loan and corporate advice and general legal work.Epstein Becker's former clients included a T-shirt vendor owing $80,438; a cable company owing $53,335; a produce wholesaler with bills totaling $55,138; and four individuals owing a total $198, 946, according to the complaints.

Epstein Becker also has filed at least three other collection suits this year, those totaling about $176,070, according to court documents."We only file collection actions after very deliberate and careful consideration, and we do not file often. The filing of more than one case on the same day was simply the culmination of a lengthy review process coupled with post-summer scheduling," said Marichelli Hughes, a spokeswoman for Epstein Becker. 
 

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) ; ; 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). "

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  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.
 

The question of how a competent and qualified attorney would handle a case is the crux of Bua v Purcell & Ingrao, P.C.   2012 NY Slip Op 06908   Decided on October 17, 2012   Appellate Division, Second Department .  At issue is whether attorney committed malpractice in the termination of a real estate contract of sale.

"The plaintiff commenced this action to recover damages allegedly sustained as a result of the defendants' legal malpractice. The amended complaint alleged that the plaintiff retained the defendants to represent and advise him in connection with the sale of certain real property. The plaintiff entered into a contract of sale with a buyer, who tendered a deposit to be held in escrow. The amended complaint further alleged that, prior to the closing date, the buyer's attorney attempted to terminate the contract of sale because the buyer was unable to obtain financing for the purchase. The defendant Joseph A. Ingrao informed the plaintiff that the buyer wished to cancel the contract of sale, and the plaintiff agreed to cancel the contract and return the deposit.

The amended complaint stated that Ingrao sent the buyer's attorney a letter "purporting to terminate" the contract of sale and returning the deposit. More than seven months later, however, the buyer attempted to revive the contract of sale and purchase the property under its terms. The plaintiff refused, maintaining that the contract had been terminated. The buyer subsequently commenced an action against the plaintiff for specific performance of the contract of sale and filed a notice of pendency. In that action, the plaintiff argued, inter alia, that the contract of sale, had been terminated when the deposit was returned. The plaintiff also commenced a holdover proceeding. The plaintiff ultimately prevailed in the specific performance action.

The amended complaint asserted that the defendants committed malpractice by failing to "obtain a clear and unambiguous termination of the [contract of sale] after [the buyer's] attorneys advised Ingrao that she wished to terminate the [contract of sale]." The amended complaint listed various things that the plaintiff claimed the defendants "should have done" in order to accomplish [*2]a "clear and unambiguous" termination of the contract of sale. "

"The standard to which the defendant's conduct is to be compared is not that of the most highly skilled attorney, nor is it that of the average member of the legal profession, but that of an attorney who is competent and qualified (see Restatement [Second] of Torts: Negligence § 299A, Comment e). The conduct of legal matters routinely "involve[ ] questions of judgment and discretion as to which even the most distinguished members of the profession may differ" (Byrnes v Palmer, 18 App Div 1, 4, affd 160 NY 699). Absent an express agreement, an attorney is not a guarantor of a particular result (see Byrnes v Palmer, 18 App Div at 4; see also 1B NY PJI3d 2:152, at 140-141 [2012]), and may not be held "liable in negligence for . . . the exercise of appropriate judgment that leads to an unsuccessful result" (Rubinberg v Walker, 252 AD2d 466, 467; see Grago v Robertson, 49 AD2d 645, 646; see also PJI 2:152).

It follows that "[the] selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738; see Dimond v Kazmierczuk & McGrath, 15 AD3d 526, 527). Attorneys are free to act in a manner that is "reasonable and consistent with the law as it existed at the time of representation," without exposing themselves to liability for malpractice (Darby & Darby v VSI Intl., 95 NY2d 308, 315; see Noone v Stieglitz, 59 AD3d 505, 507; Iocovello v Weingrad & Weingrad, 4 AD3d 208, 208). "

"In conclusion, as the plaintiff effectively concedes, he is estopped from denying that the defendants effected a legally valid termination of the contract of sale. To the extent that the allegations in the amended complaint are not barred by the doctrine of judicial estoppel, they fail to state a cause of action to recover damages for legal malpractice. Accordingly, the defendants' motion to dismiss the amended complaint was properly granted and the plaintiff's cross motion was properly denied as academic."
 

Airey v Remmele  2012 NY Slip Op 22299   Decided on October 15, 2012   Supreme Court, Erie County   NeMoyer, J.  is a case we started to read, and then had to go back to the beginning to sort out.  Who would have thought that this story would have happened in the Buffalo area? 
 

While this is not a legal malpractice case, it does have implications for the value of damages in a breach of fiduciary duty claim.  "The complaint states discrete causes of action for breach of contract, breach of fiduciary duty, negligence, and fraud or misrepresentation (or, more accurately, fraudulent omission of a material fact). The gravamen of each cause of action is that Remmele held herself out to the public and to plaintiff and plaintiff's then wife as a "marital counselor"; that plaintiff and his then wife engaged defendant to provide "marriage counseling" to the couple in an attempt to "reconcile" their "differences"; that as part of such counseling, plaintiff disclosed to defendant intimate details with respect to his "marriage and his relationship"; that plaintiff paid defendant for such counseling; but that plaintiff eventually learned that defendant had a sexual relationship or extramarital affair with plaintiff's wife, leading to the commencement of divorce proceedings between plaintiff and his wife. "

"The Court has no intention here to delineate all of the categories or species of damages that might be recovered by plaintiff upon proof of a breach of a contractual or tort duty allegedly assumed by defendants. The Court would note, however, that it probably would countenance an effort by plaintiff to recover his alleged economic or "out-of-pocket" damages in the form of the loss of the benefit of his bargain with defendants. In other words, this Court would have no problem with plaintiff's recouping any money he had paid [FN2] to defendants specifically for marital counseling if, as alleged, Remmele did not in fact use her best efforts to help the marriage but instead subverted it by embarking on a sexual relationship with plaintiff's wife. Quite simply, the idea that a self-professed counselor could accept and keep a fee earmarked for marriage or relationship counseling despite entering into a secret sexual relationship with one of the counseled parties is beyond this Court's acceptance.

Addressing defendants' challenges to the individual causes of action, the Court concludes that plaintiff has sufficiently alleged the existence of a contract whereby defendants would provide marital counseling to plaintiff and his then wife, and that plaintiff further has sufficiently alleged a breach of that contract and resultant damages. Plaintiff alleges that beginning in 2009 and continuing into 2011, plaintiff engaged the paid services of defendants for the purposes of providing marriage counseling. Although defendants have denied that, they have not done so conclusively, their documentary evidence notwithstanding. Although the e-mail exchange of November 2010 and the more formal written contract of January 2011 certainly tend to show that plaintiff was engaged as a "business coach," neither the exchanged e-mails nor the terse written contract on their face refute the allegation that defendant was already engaged in providing marriage counseling to the couple. Indeed, this Court notes that the November 29, 2010 e-mail from defendant to plaintiff's wife — which e-mail defendant herself describes as having formed the first consultation contract — afforded the couple an $800 "[c]ourtesy, current client discount" from defendants' "[r]egular [c]ost." That contractual term at least arguably buttresses plaintiff's assertion that there was a pre-existent counseling relationship and undermines defendant's contrary assertion. Similarly, and again, the January 28, 2011 meeting summary, which is relied upon by [*5]both parties, tends to show that defendant counseled the couple with regard to their personal or marital relationship as well as their relationship at work.

By the same token, and for similar reasons, the Court concludes that plaintiff has adequately pleaded the essential elements of cause of action for breach of fiduciary duty, professional negligence or malpractice, and fraudulent concealment. These causes of action present a somewhat closer question for the Court, however, given defendant's apparent lack of State licensing or other recognized professional credentials or certification as a psychologist, social worker, therapist, or the like. Nevertheless, it appears to the Court that defendant may have held herself out to the public as someone qualified to counsel individuals or couples in their relationships, including their marriages, and that indeed is plaintiff's explicit allegation. Thus, the Court concludes, plaintiff has sufficiently alleged the existence of a fiduciary duty [FN3] and other relationship of trust between himself and defendant, defendant's breach thereof,

defendant's exploitation of intimate information, and defendant's concealment of the arguably material fact that, while purporting to counsel the couple in their marriage, defendant was having a sexual affair with plaintiff's wife.[FN4] Further, plaintiff has sufficiently alleged that defendant provided negligent and careless counseling to plaintiff and did not possess the ordinary skill, knowledge, or ability of those holding themselves out to the public as marriage counselors.

Concerning plaintiff's demand for punitive damages, the fact is that punitive damages might well be recoverable upon proof of defendants' commission of fraud and possibly their breach of fiduciary duty and negligence as well (see Dupree, 87 AD3d at 978 [upholding punitive damages award against physician who assumed role as plaintiff's mental health therapist but who had sexual affair with her]). Any such award would be aimed at punishing the wrongdoer and deterring similar conduct by others (see Laurie Marie M. v Jeffrey T.M., 159 AD2d 52, 59 [2d Dept 1990], affd 77 NY2d 981 [1991]; Peters v Newman, 115 AD2d 816, 817 [3d Dept 1985], appeal dismissed 67 NY2d 916 [1986]; see also Le Mistral, Inc. v Columbia Broadcasting Sys., 61 AD2d 491, 494 [1st Dept 1978], appeal dismissed 46 NY2d 940 [1979] [citing 14 NY Jur, Damages, § 176 for proposition that "exemplary damages are [generally] recoverable in all actions ex delicto based upon tortious acts which involve ingredients of malice, fraud, oppression, insult, wanton or reckless disregard of the plaintiff's rights, or other circumstances of aggravation, as a punishment of the defendant and admonition to others"]; see generally Walker v Sheldon, 10 NY2d 401, 404-405 [1961]). Thus, punitive damages may be awarded where the [*6]wrong complained of is "actuated by evil and reprehensible motives" (Walker, 10 NY2d at 404), is "intentional and deliberate, and has the character of outrage frequently associated with crime" (Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 [1993], quoting Prosser and Keeton, Torts § 2, at 9 [5th ed 1984] [internal quotation marks omitted]). However, such punitive damages may be awarded only in proportion to any actual injury inflicted by the defendant (see generally Correia v Suarez, 52 AD3d 641 [2d Dept 2008]).

Here, in the absence of an order dismissing the tort causes of action, there is no basis for ruling out any claim for punitive damages that might be premised thereon, certainly not at the threshold. Plaintiff is entitled to explore through discovery defendant's alleged conduct, both with respect to this couple and in general.

Accordingly, the motion of defendants to dismiss the complaint is DENIED, although it is DETERMINED as a matter of law that plaintiff may not recover damages, including for emotional distress, on account of the sexual relationship between defendant and plaintiff's then wife or the consequent damage to or destruction of the marriage. "

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.

The claims in this case (and the related cases) cannot be harmonized with the defenses.  This series of huge real estate transactions either reveals corruption and theft, or plaintiff is totally wrong.  There does not seem to be any middle ground.

Silver v Newman   2012 NY Slip Op 32572(U)   October 2, 2012   Supreme Court, Suffolk County
Docket Number: 22581/2010  Judge: Emily Pines is a case which involves the sale of real property, and a coop in the Sherry Netherland and a missing $ 38,000,000. 

"The complaint in Action 1 alleges two causes of action. In the first cause of action the complaint alleges that the Rittberg defendants, who represented the plaintiffs in the sale of the Townhouse to Lowes’ Home Centers, Inc. for the purchase price of $38,500,000, negligently disbursed the proceeds of the sale to themselves, individuals, corporations and other business entities, other than the plaintiffs, without the knowledge, advice and consent of the plaintiffs. The complaint alleges in the second cause of action that the Rittberg defendants breached a fiduciary duty to the plaintiffs by misappropriating the proceeds of the sale of the Townhouse for their own benefit and for the benefit of others.
 

The complaint in the instant action, Action 2, alleges in the first cause of action hilt the plaintiffs are entitled to an accounting by all defendants. The complaint alleges in the second cause of action that defendant Barry Newman breached a contract with the plaintiffs,  and in the third cause of action that Newman breached his fiduciary duties to the plaintiffs."

"With regard to the branch of the Rittberg defendants’ motion to dismiss the ninth cause of action, their submissions demonstrate that the plaintiff acknowledged that she was not seeking legal advice from Rittberg in regard to the Sherry-Netherland coop apartment and was aware of a conflict of interest for Rittberg to attempt to represent both herself and Newman. Therefore, since Rittberg and his law firm did not represent the plaintiffs in this transaction, no malpractice could have resulted from the transaction. Thus, that portion of the cause of action alleging legal malpractice against the Rittberg defendants for the transaction surrounding the Sherry-Netherland coop apartment is dismissed. The remaining portion of the sixth cause of action relates to the Rittberg defendants’ alleged malpractice in the Townhouse transaction, this allegation has also been asserted in Action 1. The Rittberg defendants also contend that the fourth cause of action alleging
unjust enrichment was also asserted in Action 1. The Court is aware that the plaintiffs are
represented by separate attorneys in each action, and in consideration of these circumstances,
counsel for the plaintiffs are directed to determine in which action these claims shall Bel litigated and stipulate to same at the next court conference. Accordingly, only the portion of the ninth cause of action which alleges malpractice in the Sherry-Netherland transaction is dismissed at this time.
Accordingly, motion by the Rittberg defendants is granted to the extent that the sixth ND the portion of the ninth causes of action alleging legal malpractice in the Sherry- Netherland transaction are dismissed."

Try to sort through Tolmosova v Umarova   2012 NY Slip Op 51921(U)     Decided on October 1, 2012   Supreme Court, Kings County   Schmidt, J. and you will see two things.  There is a reason such a large percentage of new businesses fail.  The second is that the hearing on this case must have been amazing.
 

"The complaint alleges five causes of action - the first four with respect to the signatories to the agreement. The first cause of action is alleged against Benyaminova for repayment of the promissory note; the second cause of action is alleged against Benyaminova for her share of the Avenue D property and business and/or her share of defendant Kids Kingdom (another daycare business); the third cause of action is alleged against Umarova for fraud and conversation for representing to plaintiff that she (Umarova) was the only person capable of obtaining the certificate of occupancy; and the fourth cause of action is alleged against Umarova for a judgment transferring 100% of the shares of Skazka III, Inc. to plaintiff.

The fifth cause of action alleges legal malpractice and breach of fiduciary duty against Mr. Popik in the drafting of the August 24, 2000 agreement. Specifically, the complaint alleges that Mr. Popik failed to exercise reasonable skill and knowledge commonly possessed by a member of the legal profession in representing multiple parties with potential conflicts of interest; failed to inform plaintiff of her right to have independent counsel review and evaluate the agreement, and discouraged her from doing so; and failed to provide plaintiff with a general waiver or release regarding representation of multiple parties in connection with the agreement. The complaint further alleges that Mr. Popik's negligence and breach of fiduciary duty caused plaintiff to sustain damages, including the [*4]loss of ownership and interest in the Avenue D and Avenue I premises.

In August, 2003, defendant filed a verified answer. Shortly thereafter, plaintiff discontinued this action against Benyaminova and did not pursue default judgments against co-defendants Skazka III, Inc., Kids Kingdom, Losyev, and Lilly Godzhinsky.

By order dated October 19, 2004, Hon. Francois A. Rivera granted the motion of Umarova to dismiss the third cause of action to the extent it sought damages for conversion as time-barred, and dismissed the third cause of action to the extent it sought damages for fraud for failure to state a cause of action. Subsequently, plaintiff abandoned the complaint against now deceased defendant Timur Umarov. It is undisputed that since the commencement of this action, plaintiff has not served any discovery demands upon any other defendant nor did she seek the deposition of Mr. Popik. "

"Here, Mr. Popik has demonstrated that the complaint fails to state a cause of action for legal malpractice and has made a prima facie showing entitling him to summary judgment dismissing the complaint insofar as asserted against him. In this regard, the complaint, along with the testimony of plaintiff, fails to demonstrate that the advice provided by defendant to plaintiff was the proximate cause of plaintiff's alleged damages and that plaintiff sustained actual and ascertainable damages.

Specifically, the first cause of action alleges that Benyaminova failed to pay plaintiff the amount set forth in the April 12, 2000 promissory note: $60,700.00, plus interest, costs and attorney's fees. However, it is undisputed that the promissory note was prepared by another attorney, which was executed by Benyaminova three months before plaintiff represented defendant. Thus, Mr. Popik properly argues that there is no nexus between his representation of plaintiff and Benyaminova's failure to pay plaintiff. In any event, plaintiff testified at her deposition that she received full payment ($47,000.00) in full satisfaction of this debt alleged in the first cause of action.

Plaintiff's second cause of action alleges that if Benyminova failed to pay plaintiff back as agreed (in the Letter of Intent), Benyaminova's share in the Avenue D business would be transferred to Skazka III, Inc.; that Benyaminova's interest in Avenue D was in the form of a 50% ownership in Kids Kingdom; that plaintiff would be entitled to all the ownership interest in Skazka III, Inc. if plaintiff was not made the owner of the Avenue I premises and business; and that since plaintiff was not made the owner of the Avenue I premises and business, as set forth in the Letter of Intent, and since plaintiff was not made the owner of the Avenue I premises and business, and Benyaminova failed to pay plaintiff back, plaintiff is entitled to Benyaminova's share of the property and business at the Avenue D premises and/or Benyaminova's share of defendant Kids Kingdom Inc. Despite these allegations, plaintiff testified that she was not making a claim against Benyaminova "at this time." Plaintiff also testified that she was no longer interested in getting the shares of Skazka III, Inc. ("I don't want any Skazka or anything"). Similar to the first cause of action, the allegations of this cause of action fail to allege any breach by defendant or that any alleged breach proximately caused plaintiff to sustain any damages.

The third cause of action alleges that Umarova and Benyaminova fraudulently represented to plaintiff that Umarova was the only individual capable of obtaining the certificate of occupancy for a cost of $140,000.00 for the Avenue D premises; that the Avenue D premises already had a daycare certificate; and that therefore Umarova was liable to plaintiff for punitive damages. However, this cause of action has already been dismissed. In any event, plaintiff testified that defendant was not involved in making these purported fraudulent representations, thus this cause of action cannot serve as a basis for a legal malpractice claim against defendant.

The fourth cause of action has been dismissed as well. It alleges that if Umarova failed to purchase 50% of the Avenue I premises and business, the plaintiff would be entitled to 100% of the shares of Skazka III, Inc., and that Umarova failed to make that [*6]purchase. However, plaintiff testified that defendant was not required to purchase a part of the Avenue I premises. Thus, there is no basis for a claim for legal malpractice with respect to this cause of action - Mr. Popik was not involved in this transaction nor is there any connection between Mr. Popik and plaintiff's alleged damages.

The fifth cause of action for legal malpractice alleges that Mr. Popik drafted the August 24, 2000 Letter of Intent, creating an attorney/client privilege; that Mr. Popik failed to exercise reasonable skill and knowledge possessed by a member of the legal profession in representing multiple parties with conflicting interests, and that Mr. Popik failed to inform plaintiff of her right to have independent counsel review and evaluate the Letter of Intent, causing plaintiff to sustain damages - namely loss of ownership and interest in the Avenue D and Avenue I premises. Even liberally construed, plaintiff's claim of damages are bare legal conclusions. Even assuming they vaguely state a claim for damages, the allegation of Mr. Popik's negligence is unequivocally contradicted by documentary evidence. In this regard, plaintiff testified that Mr. Popik's only fault was his assurance to her that Umarova "was a very decent person" whom he had known for 17 years; that he made "this agreement between all of us because this is an agreement among honest people;" and that she had no evidence that Mr. Popik helped Umarova to defraud plaintiff.[FN2] Moreover, even assuming plaintiff sustained damages, she testified that Mr. Popik did not "have anything do to with" Umarova's failure to pay her a certain percentage of interest in the Avenue D and Avenue I premises. Further, plaintiff failed to show how the alleged malpractice caused any such damages since the Letter of Intent was not a binding contract but merely "effectuated the intent of the parties" (Weksler v Kane Kessler, P.C., 63 AD3d 529, 531[2009]).

In light of the foregoing, defendant has demonstrated that the complaint fails to allege that plaintiff would be able to prove that, but for the alleged malpractice, she would have prevailed on her claim that she lost her interest in the Avenue D and Avenue I premises.Stated otherwise, defendant has demonstrated that the complaint fails to state a viable cause of action sounding in legal malpractice and has made a prima facie showing entitling him to dismiss the complaint insofar as asserted against him.

In opposition, plaintiff has failed to raise a triable issue of fact. Plaintiff relies solely upon her 2004 affidavit in which she recounts her dealings with Mr. Popik in the drafting of the Letter of Intent. She states, among other things, that she met with Mr. Popik and five other of the defendants to settle a dispute among them; that Mr. Popik praised Umarova as a trustworthy individual; that Mr. Popik read the agreement and translated it into Russian, with all parties present; and that it was executed by all the parties. Plaintiff [*7]goes on to state that Mr. Popik convinced her and Benyaminova to sign a deed which caused plaintiff to sign over her one-half interest in a parcel of real estate to defendant Losyev; that he notarized the signatures; that he was paid by the parties for his services; and that when, two weeks later, plaintiff told Mr. Popik that she was nervous about the agreement because the parties were not fulfilling their obligations, Mr. Popik agreed to represent her against these parties, but now claims he did not have an attorney/client relationship with her.

Thus, counsel for plaintiff sums up plaintiff's claims as follows: Mr. Popik: (1) represented several parties simultaneously with differing interests; (2) prepared an agreement for said parties; (3) accepted payment for his services; (4) represented plaintiff against another party to the agreement; and (4) caused plaintiff to lose her interest in real property and business. He asserts that "[u]pn entering Mr. Popik's office [p]laintiff possessed real property and a business interest . . .[a]fter she left Mr. Popik's office, [p]laintiff neither had an interest in the real property nor an interest in her business," because Mr. Popik "prepared, notarized and record the documents." Counsel further asserts that "questions of material facts exist as to whether [d]efendant Popik corrupted the attorney-client relationship by representing multiple parties and, in doing so, acted negligently."

As defendant states in his reply, plaintiff has failed rebut his prima facie showing. Stated otherwise, neither plaintiff's affidavit or counsel's affirmation address the elements comprising a cause of action for legal malpractice. Plaintiff fails to identify any breach on defendant's part, or that any alleged breach proximately caused plaintiff to sustain actual or ascertainable damages. To establish causation, plaintiff was required to show that she would not have incurred any damages, but for Mr. Popik's negligence. Plaintiff utterly failed to make any such showing. In fact, she testified to the contrary and, as indicated above, her claims of damages are conclusory. Further, while plaintiff's counsel asserts that plaintiff entered Mr. Popik's office possessing real property and left without such interest, this representation is completely conclusory and devoid of any evidentiary support. Moreover, plaintiff's opposition is bereft of any discussion of plaintiff's deposition testimony, which undermines the allegations of her complaint, including the allegation that she was not advised that she could have the Letter of Intent reviewed by independent counsel. As noted above, plaintiff's only complaint against Mr. Popik was that he represented to plaintiff that Umarova was a very decent person.In sum, plaintiff has failed to rebut defendant's prima facie showing. "

We don't often see a US District Court Judge get so worked up.  Here, in PAUL BLACK, Plaintiff, -against- JEFFREY S. SCHWARTZ and LAW OFFICE OF JEFFREY S. SCHWARTZ, Defendants.09-CV-2271(JS)(GRB)     UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK     2012 U.S. Dist. LEXIS 132524 we see a garden or varietal legal malpractice case gone awry.

"Defendants argue that California law does not permit parties who are hit with sanctions to recover the amount of the sanctions from their lawyers. (Defs. Br. 13.) They cite Jocer Enterprises, Inc. v. Price, Roper, Majeski, Kohn & Bentley, 183 Cal. App. 4th 559, 107 Cal. Rptr. 3d 539 (Cal. Ct. App. 2010) for the proposition "that an award for attorney fees imposed by the Court a client [sic], individually, may not be recovered as damages in a subsequent legal malpractice action." (Defs. Br. 13.) Given the loose relationship Defendants' brief has with the facts in this case--see below--it is perhaps unsurprising that Jocer stands for no such thing."

"Defendants argue that Plaintiff's injury was really caused by his not having a factual basis to prevail on the merits in the California Action. This is a variation of Defendants' first argument, and it has at least two flaws. One, it is [*7] premised on a flagrantly misleading characterization of Plaintiff's expert's deposition. Noting that Plaintiff's expert testified that Defendants may have had a colorable basis to sue LTN--the Land America subsidiary--Defendants transform this opinion into a finding that Defendant's decision to sue Land America was not negligent. (Defs. Br. 16.) In fact, Plaintiff's expert agreed hypothetically that there might have been an arguable claim against LTN but he was clear that Land America would not have been a proper target. (Defs. Ex. M at 79-80, 94.) Defendants have the gall to make this argument again in their reply (see Defs. Reply 4) even after Plaintiff pointed out that it is based on an incorrect reading of the expert's deposition (Pl. Opp. 5-6). Two, this argument confuses the claimed injury in this case. Plaintiff does not claim that he would necessarily have prevailed on the merits in the California Action; rather, he simply argues that but for Defendants' malpractice, he would not have been sanctioned for misconduct."

"As an initial matter, the Court notes that Defendants' citations to evidence in this motion are virtually meaningless. The exhibits, which are referred to by letter throughout Defendants' papers, were not included with Defendants' courtesy copies to the Court (in violation of the undersigned's individual motion practices), and they are not labeled by letter on ECF. More troublingly, citations to Schwartz's 167-page deposition do not contain page numbers (the absence of page references was an issue in Defendants' summary judgment brief as well)"

"Finally, in light of Defendants' blatant mischaracterizations discussed above, the Court is not inclined to find that either party has behaved worse than the other. Cf. Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194 F.3d 323, 341 (2d Cir. 1999) ("Although, in light of our disposition of this appeal, we need not address whether such unclean hands may preclude the imposition of [*13] sanctions, we observe that a court considering sanctions can and should consider the equities involved before rendering a decision.")."
 

The statute of limitations exists in part because of the human need to get things behind us.  For commerce and (in general) life to keep on the law imposes a bright-line, specific period of time, after which it's just too late.  To be fair, even when some are disenfranchised, its a good idea.

In legal malpractice, the statute of limitations is 3 years.  An exception to the strict time-keeping analysis is that of of continuous representation.  Here is an example and an explanation.

 Hadda v Lissner & Lissner LLP    2012 NY Slip Op 06736    Decided on October 9, 2012   Appellate Division, First Department   "Defendants made out a prima facie showing that the three-year statutory limitations period (CPLR 214[6]) expired before this legal malpractice action was commenced in July 2010. Plaintiffs failed to raise an issue of fact whether the doctrine of continuous representation applied here to toll the limitations period (see Glamm v Allen, 57 NY2d 87, 94 [1982]; CLP Leasing Co., LP v Nessen, 12 AD3d 226 [1st Dept 2004]). The only evidence plaintiffs submitted on this issue was an affidavit by the husband of one of the plaintiffs, not a party to plaintiffs' retainer agreement with defendants, stating that he spoke to the individual defendant four times between January and May 2007. Even assuming the husband had the authority to speak for plaintiffs, the intermittent telephone contact between himself and defendants does not constitute "clear indicia of an ongoing, developing and dependent relationship between the client and the attorney" or of "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, 332-333 [1st Dept 2005] [internal quotation marks omitted])."

It's often said to us that a predecessor attorney was corrupt, or "took" the money, or was "bought."  We've yet to see direct evidence of attorney corruption, but the case of AMY R. GURVEY, Plaintiff-Appellant, -v.- COWAN, LIEBOWITZ & LATMAN, P.C., CLEAR CHANNEL COMMUNICATIONS, INC., LIVE NATION, INC., INSTANT LIVE CONCERTS, LLC, NEXTICKETING, INC., WILLIAM BORCHARD, MIDGE HYMAN, BAILA CELEDONIA, CHRISTOPHER JENSEN, DALE HEAD, STEVE SIMON, MICHAEL GORDON, and SUSAN SCHICK, Defendants-Appellees.

Nos. 09-2185-cv(L), 10-4111 (Con) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 462 Fed. Appx. 26; 2012 U.S. App. LEXIS 2737; 2012-1 Trade Cas. (CCH) P77,794 brings up some interesting issues.  Did the law firm misappropriate her trade secrets and then give them to other clients for profit?

"However, we vacate the District Court's judgment to the extent that it dismissed Gurvey's claims for attorney malpractice and breach of fiduciary duty against the Cowan defendants. Construing the TAC liberally, accepting all the factual allegations in the complaint as true, and drawing all reasonable inferences in Gurvey's favor, see Bell Atl. Corp., 550 U.S. at 570, we conclude that Gurvey stated a plausible claim by alleging that the defendants used the information given to them as part of a confidential attorney-client relationship to their own advantage by disclosing it to other clients who then profited therefrom to Gurvey's detriment, see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 10, 865 N.Y.S.2d 14 (1st Dep't 2008). 8 We therefore remand the cause for further proceedings before the District Court on these claims.

FOOTNOTES

8 The plausibility of this argument is bolstered by Gurvey's allegation that Cowan withdrew from representing Gurvey before the United States Patent and Trademark Office due to what Cowan allegedly termed a "conflict of interest."

In an unusual turn of events, defendant moved to amend his answer and for summary judgment.  His motion was denied, and he took an appeal.  In an unusual timing situation, trial and verdict in the case , Borges v Placeres  2012 NY Slip Op 51883(U)  Decided on October 3, 2012 Appellate Term, First Department favor of plaintiff mooted his appeal.

"It being undisputed that the underlying legal malpractice action has now been tried to completion and judgment entered in plaintiff's favor, defendant's appeal from the interlocutory order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised here by defendant are reviewable upon appeal from the judgment (see CPLR 5501[a][1]). "

"An attorney who defends himself has a fool for a client" appears to date from 1809 in the Philadelphia the Port Folio.  Nothing has changed over the past 200 years.  In Guerrera v Zysk
2012 NY Slip Op 06578   Decided on October 3, 2012   Appellate Division, Second Department  we see an example.  Defendant attorney appears pro-se.  He served a 90 day notice, and on the same date, served a motion to dismiss based upon the 90 day notice.  After the motion was denied, an appeal followed.  The appeal was obviously unsuccessful.  Was this simply to bleed plaintiff?
 

"On May 5, 2010, the defendant served the plaintiff with a written demand pursuant to CPLR 3216 to serve and file a note of issue within 90 days after receipt of the demand. Shortly thereafter, the defendant served a notice of motion dated May 5, 2010, inter alia, pursuant to CPLR 3216, in effect, to dismiss the complaint for failure to prosecute. Since the defendant's motion was served before the expiration of the 90-day period, the Supreme Court properly denied that branch of the motion which was pursuant to CPLR 3216, in effect, to dismiss the complaint (see Weber v Kessler, 224 AD2d 520, 521; Divjak v New York Hosp.-Cornell Med. Ctr., 219 AD2d 695; Lyons v Butler, 134 AD2d 576). "

How many fathers go to jail for non-payment of child support?  We have no firm number, but guess it is less than 10 a year in New York State.  Here is the story of one who was.   Joel Amaker was in arrears on his child support, and hired defendant Howard D. Lee to represent him.  The hearing ended in incarceration for Mr. Amaker, and a later pro-se legal malpractice case against Mr. Amaker.   Amaker v Lee   2012 NY Slip Op 51868(U)   Decided on September 28, 2012   Supreme Court, Kings County   Rivera, J     

In the decision note the prominence of Dombrowski v Bulson, 19 NY3d 347 [2012)  on the issue of what damages are permissible in a legal malpractice case. 
 

"The complaint alleges the following salient facts. In May of 2003, plaintiff hired the defendant to represent him in a child support proceeding pending in New York County Family Court under Docket No.: F-00898-02/05B, F-0898-02/05C called Jeanette Chirico v. Joel Amaker (hereinafter referred to as the "child support case"). Plaintiff retained the defendant to review the orders in the child support case against the orders in plaintiff's preceding divorce action in Supreme Court and then take over the child support case to reduce the child support order and arrears existing at that time. The plaintiff paid the defendant an initial deposit of $500.00 towards the child support case.

The complaint also alleges that the defendant missed several court appearances, failed to notify the court that he was not coming, and failed to prepare a defense for the plaintiff in the child support case. In particular the defendant failed to argue at a "willfulness hearing" that the plaintiff's failure to pay child support was not due to his desire not to pay but being unable to pay due to other circumstances. After a hearing, in which the plaintiff and the defendant were present, the court in the child support case made a decision holding the plaintiff to be in willful violation of the order of support and incarcerated him for a period of six months. The defendant failed to appeal the contempt order. Plaintiff contends that the defendant's conduct amounted to legal malpractice and resulted in his incarceration. "

"In the instant matter defendant contends that the plaintiff cannot demonstrate two essential factors. First, that plaintiff would have prevailed in the child support case. Second, that he would not have incurred any damages, but for the lawyer's negligence. There is no dispute that the support obligation and accumulated arrears, which precipitated the child support case, existed long before the plaintiff hired the defendant to represent him. There is also no dispute that the plaintiff's incarceration occurred after a hearing, in which he was offered an opportunity to present evidence and test the evidence submitted against him.

The defendant does not admit that he committed malpractice. Rather, he contends that accepting as true every allegation of fact stated in the complaint, the plaintiff does not plead any facts showing that he suffered a pecuniary loss. He further contends that plaintiff cannot demonstrate any pecuniary loss proximately caused by the defendant's alleged malpractice.

Defendant's sworn allegations of fact and documentary evidence makes a prima facie showing of the following facts. The plaintiff did not prevail in the child support case because he was found after an evidentiary hearing to have willfully failed to comply with a court ordered child support obligation. The plaintiff was incarcerated based on his willful disobedience of a child support order. The defendant did not agree to represent the plaintiff on an appeal of any order emanating from the child support case.

Assuming, for the sake of argument, that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession when he represented the plaintiff in the child support case, the plaintiff must demonstrate causation between the malpractice and ascertainable pecuniary loss. Pecuniary loss, does not include the emotional damage or pain and suffering caused by being incarcerated (see Dombrowski v Bulson, 19 NY3d 347 [2012]; Gaskin v Harris, —- NYS2d ——, 2012 WL 3971280 [2nd Dept 2012]).

Defendant has made a prima facie showing that the plaintiff did not plead and cannot prove that he sustained any ascertainable pecuniary damage caused by the defendant's alleged negligence in representing him. The defendant has, therefore, made a prima facie showing that the plaintiff is unable to prove at least one of the essential elements of his legal malpractice claim (Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716 [2nd Dept 2012]).

By doing so, the defendant has shifted the burden to the plaintiff to raise an issue of fact requiring a trial (Alaimo v Mongelli, 93 AD3d 742 [2nd Dept 2012]). The plaintiff has submitted an unsworn statement, incorrectly denominated as an affidavit, stating his position. The exhibits annexed to his opposition are therefore, not properly admitted and [*5]have no probative value. A review of the contents of plaintiff's statement, assuming that it had been properly sworn, reveals no triable issue. When viewed in the light most favorable to the plaintiff, it demonstrates no ascertainable pecuniary loss caused by the defendant's acts or omissions in representing him in the child support case. Plaintiff has failed to raise an issue of fact requiring a trial.

Defendant's motion for an order granting summary judgment in his favor on liability and dismissing the complaint pursuant to CPLR 3212 is granted.In light of the foregoing, the court need not and does not reach defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). "

How many fathers go to jail for non-payment of child support?  We have no firm number, but guess it is less than 10 a year in New York State.  Here is the story of one who was.   Joel Amaker was in arrears on his child support, and hired defendant Howard D. Lee to represent him.  The hearing ended in incarceration for Mr. Amaker, and a later pro-se legal malpractice case against Mr. Amaker.   Amaker v Lee   2012 NY Slip Op 51868(U)   Decided on September 28, 2012   Supreme Court, Kings County   Rivera, J     

In the decision note the prominence of Dombrowski v Bulson, 19 NY3d 347 [2012)  on the issue of what damages are permissible in a legal malpractice case. 
 

"The complaint alleges the following salient facts. In May of 2003, plaintiff hired the defendant to represent him in a child support proceeding pending in New York County Family Court under Docket No.: F-00898-02/05B, F-0898-02/05C called Jeanette Chirico v. Joel Amaker (hereinafter referred to as the "child support case"). Plaintiff retained the defendant to review the orders in the child support case against the orders in plaintiff's preceding divorce action in Supreme Court and then take over the child support case to reduce the child support order and arrears existing at that time. The plaintiff paid the defendant an initial deposit of $500.00 towards the child support case.

The complaint also alleges that the defendant missed several court appearances, failed to notify the court that he was not coming, and failed to prepare a defense for the plaintiff in the child support case. In particular the defendant failed to argue at a "willfulness hearing" that the plaintiff's failure to pay child support was not due to his desire not to pay but being unable to pay due to other circumstances. After a hearing, in which the plaintiff and the defendant were present, the court in the child support case made a decision holding the plaintiff to be in willful violation of the order of support and incarcerated him for a period of six months. The defendant failed to appeal the contempt order. Plaintiff contends that the defendant's conduct amounted to legal malpractice and resulted in his incarceration. "

"In the instant matter defendant contends that the plaintiff cannot demonstrate two essential factors. First, that plaintiff would have prevailed in the child support case. Second, that he would not have incurred any damages, but for the lawyer's negligence. There is no dispute that the support obligation and accumulated arrears, which precipitated the child support case, existed long before the plaintiff hired the defendant to represent him. There is also no dispute that the plaintiff's incarceration occurred after a hearing, in which he was offered an opportunity to present evidence and test the evidence submitted against him.

The defendant does not admit that he committed malpractice. Rather, he contends that accepting as true every allegation of fact stated in the complaint, the plaintiff does not plead any facts showing that he suffered a pecuniary loss. He further contends that plaintiff cannot demonstrate any pecuniary loss proximately caused by the defendant's alleged malpractice.

Defendant's sworn allegations of fact and documentary evidence makes a prima facie showing of the following facts. The plaintiff did not prevail in the child support case because he was found after an evidentiary hearing to have willfully failed to comply with a court ordered child support obligation. The plaintiff was incarcerated based on his willful disobedience of a child support order. The defendant did not agree to represent the plaintiff on an appeal of any order emanating from the child support case.

Assuming, for the sake of argument, that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession when he represented the plaintiff in the child support case, the plaintiff must demonstrate causation between the malpractice and ascertainable pecuniary loss. Pecuniary loss, does not include the emotional damage or pain and suffering caused by being incarcerated (see Dombrowski v Bulson, 19 NY3d 347 [2012]; Gaskin v Harris, —- NYS2d ——, 2012 WL 3971280 [2nd Dept 2012]).

Defendant has made a prima facie showing that the plaintiff did not plead and cannot prove that he sustained any ascertainable pecuniary damage caused by the defendant's alleged negligence in representing him. The defendant has, therefore, made a prima facie showing that the plaintiff is unable to prove at least one of the essential elements of his legal malpractice claim (Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716 [2nd Dept 2012]).

By doing so, the defendant has shifted the burden to the plaintiff to raise an issue of fact requiring a trial (Alaimo v Mongelli, 93 AD3d 742 [2nd Dept 2012]). The plaintiff has submitted an unsworn statement, incorrectly denominated as an affidavit, stating his position. The exhibits annexed to his opposition are therefore, not properly admitted and [*5]have no probative value. A review of the contents of plaintiff's statement, assuming that it had been properly sworn, reveals no triable issue. When viewed in the light most favorable to the plaintiff, it demonstrates no ascertainable pecuniary loss caused by the defendant's acts or omissions in representing him in the child support case. Plaintiff has failed to raise an issue of fact requiring a trial.

Defendant's motion for an order granting summary judgment in his favor on liability and dismissing the complaint pursuant to CPLR 3212 is granted.In light of the foregoing, the court need not and does not reach defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). "

Experts (we might as well call then wizards) are an essential part of litigation, and in legal malpractice litigation they are everywhere.  What are the rules, what are the uses, and when are they essential?  In answer to these questions, we're excited to share an Outside Counsel column from today's New York Law Journal, entitled Experts in Legal Malpractice Litigation.

Cases in Landlord-Tenant court often have sad back-stories, and even sadder endings. InAlves 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
 

We've asked in the past whether there is an institutional bias against legal malpractice cases.  Self-regulation of industries ( the LIBOR, for example) often lacks any rigor.  The legal world also, in a way, self regulates.  It is after all, rules for attorneys, written by attorneys, administered and judged by attorneys.  In Wiener v Epstein  2012 NY Slip Op 22277   Decided on September 26, 2012   Appellate Term, First Department  we see the Appellate Term reversing Civil Court on a summary judgment dismissal.  Was Civil Court too ready to decide the underlying "but for" issues?
 

"Plaintiffs' legal malpractice claim is not ripe for summary dismissal, since the defendant law firm failed in its burden to demonstrate the absence of a triable issue as to whether plaintiffs would have prevailed to some extent in the underlying action but for defendant's alleged malpractice (see Cruz v Durst Law Firm, 273 AD2d 120 [2000]), i.e., failing in the underlying action to identify and timely serve a notice of claim upon the Hudson River Park Trust ("Trust"), the record owner of the bicycle path on which the first-named plaintiff was injured.

Giving plaintiffs the benefit of every favorable inference (see Ortega v Everest Realty LLC, 84 AD3d 542, 545 [2011]), the record contains circumstantial evidence sufficient to permit a fact-finder to determine that the condition which allegedly caused the first-named plaintiff to fall from his bicycle - described as a six foot by three foot patch of a "glass bead-like material used in the painting of bike ways ... to provide better visibility" - was created by a contractor retained by the Trust (see Schneider v King's Highway Hosp. Ctr., 67 NY2d 743, 744-745 [1986]; Chimilio-Ramos v Banguera, 62 AD3d 538 [2009]; Carboy v. Cauldwell-Wingate Co., Inc. 43 AD3d 261, 262-263 [2007]; Berner v 2061 A Bartow Food Corp., 279 AD2d 275 [2001]), for which the Trust may have been held vicariously liable, if properly sued in the underlying action, based upon its nondelegable duty as the owner of the public bicycle path (see Sarisohn v 341 Commack Rd., Inc., 89 AD3d 1007, 1008 [2011]; Hill v Fence Man, Inc., 78 AD3d 1002, 1004 [2010]; Correa v City of New York, 66 AD3d 573, 574-575 [2009]). Thus, the lack of prior notice to the Trust of the hazard was not dispositive of the Trust's potential liability (see Jabbour v Finnegan's Moving & Warehouse Corp., 299 AD2d 192 [2002]; Katz v City of [*2]New York, 231 AD2d 448 [1996]).

Defendant's summary judgment evidence failed to conclusively establish that a contractor retained by the Trust did not cause or create the pathway condition that allegedly caused the first-named plaintiff's injuries. The deposition testimony of the Department of Transportation ("DOT") employee (Patel) did not serve to absolve the Trust of potential liability, since Patel testified that "it is possible" that the Trust could have contracted for the repair or painting of the bike path without DOT's knowledge.

The record so far developed raises triable issues as to whether plaintiffs would have prevailed in the underlying personal injury litigation "but for" defendant's negligence (cf. Wo Yee Hing Realty Corp. v Stern, ___ AD3d ___, 2012 NY Slip Op 05792 [1st Dept 2012]). "

Legal Malpractice cases arise everywhere, and in so many circumstances,  In Manus v Flamm , 2011 NY Slip Op 31691(U); 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."
 

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);  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. "
 

Client retains Attorney 1 who is said to commit legal malpractice, and then retains Attorney 2 to try to help fix the problem, and later, to sue Attorney 1.  What communications between client and Attorney 2 are privileged.  in Roberts v Corwin   2012 NY Slip Op 32403(U)   September 10, 2012
Supreme Court, New York County   Docket Number: 115370-2009   Judge: Marcy S. Friedman  we see an interesting analysis.  "The attorney-client privilege is waived “where a party affirmatively places the subject  matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of the party’s claim or defense, and application of the privilege would deprive the opposing party of vital information.” (Veras Invs. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 373 [lst Dept 20081.) “[That a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself ‘at issue’ in the lawsuit; if that were the case, a privilege would have little effect. . . . Rather, ‘at issue’ waiver occurs when the party has asserted a claim or defense that he intends to prove by the use of privileged materials.” (Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust, 43 AD3d 56,64 [lst Dept 20071 [internal quotation marks and citations omitted].)"

"It is well settled that “an attorney-client relationship is established where there is an  explicit undertaking to perform a specific task. While the existence of the relationship is not dependent upon the payment of a fee or an explicit agreement, a party cannot create the relationship based on his or her own beliefs or actions.” (Pellegrino v Oppenheimer & Co., 49 AD3d 94,99 1st Dept 20081; Jane St. Co. v. Rosenberg & Estes. P.C., 192 AD2d 451 [lst Dept.], Iv denied 82 NY2d 654 [1993].) An attorney-client relationship may thus exist prior to execution of a formal retainer. Indeed, an attorney-client relationship “can encompass a preliminary consultation even where the prospective client does not ultimately retain the attorney.” (Pellegrino, 49 AD3d at 99.)

Under these circumstances, in which plaintiff retained Epstein Becker to correct Greenberg Traurig’s malpractice and thereby to attempt to avoid a malpractice action, the court cannot find that preliminary consultations, in which malpractice may have been discussed, were undertaken “with a view toward retention” of Epstein Becker for malpractice litigation. (See generally Pellegrino, 49 AD3d at 99.) The court finds, however, that the documentary evidence, including that reviewed b
camera, shows that plaintiff began to consider a malpractice action in earnest after plaintiffs
motion to vacate the unfavorable award was denied by order of this Court (Moskowitz, J.), dated
April 3, 2007. It is undisputed that Mr. Roberts circulated a conflicts check at Epstein Becker,
dated May 30,2007, with himself as the client, and sought to have a client-matter number assigned. (July 5, 2012 ’Tr. at 13-14; P.’s Privilege Log [Ex. I, to Reardon Aff.].) As plaintiff acknowledges, these events coincide with Epstein Becker having “switched” from giving advice
consistent with the continuing arbitration to “direct strategic advice about what to do about a
malpractice claim.” (&July 5,2012 Tr. at 13-14.)"

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; 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.

The area of estate legal malpractice was seismically upset when the Court of Appeals decided Schneider v. Finmann.  Here, inSobel v Ansanelli  2012 NY Slip Op 06202  Decided on September 19, 2012  Appellate Division, Second Department   we do not see the standing issue.  This decision works its way through a legal malpractice, fraud, breach of fiduciary duty, breach of contract and duress claims.
 

"In August 2005 the decedent, Mary Ellen Malone, retained the defendant Vincent W. Ansanelli and the defendant law firm, Ansanelli, Kugler & Svendsen, LLP, to perform estate planning services, including asset protection, the preparation and filing of an application for Medicaid benefits, and the transfer of the decedent's cooperative apartment to her daughter, Christina Sobel. At the time the decedent retained the defendants, the alleged total value of her assets was approximately $190,000, and she allegedly had debts of approximately $60,000. More than two years after the decedent's death, by summons and complaint filed on February 3, 2011, Sobel commenced this action asserting six causes of action alleging, in effect, legal malpractice, breach of contract, breach of fiduciary duty, fraud, and duress. The plaintiff's breach of fiduciary duty claims, set forth under the first and second causes of action, were premised upon allegations that the defendants had charged excessive legal fees totaling over $44,000 for the protection of the decedent's relatively modest estate.

Prior to joinder of issue, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7). In support of their motion, they submitted, inter alia, copies of invoices allegedly sent to the plaintiff, and argued that these invoices established a defense to some [*2]of the plaintiff's claims because she had ratified them by retaining them without objection, making partial payment, and signing an agreement promising to pay the balance due. The defendants also submitted a document from the City of New York Human Resources Administration dated July 30, 2008, which indicated that the decedent's application for Medicaid benefits had been retroactively granted from November 1, 2006, to the date of her death on April 28, 2008. The defendants additionally contended that none of the plaintiff's claims stated a cause of action, and that the plaintiff's legal malpractice claim was barred by the statute of limitations. "

Contrary to the defendants' contention, the Supreme Court properly denied those branches of their motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action alleging, in effect, breach of fiduciary duty premised on the theory that the defendants charged excessive legal fees. A motion to dismiss 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 Leon v Martinez, 84 NY2d 83, 88; Harris v Barbera, 96 AD3d 904; Parekh v Cain, 96 AD3d 812). To qualify as documentary evidence, printed materials "must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86; see Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807, 808; Yeshiva Chasdei Torah v Dell Equity, LLC, 90 AD3d 746, 746-747). Further, 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 favorable 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 at 326; Leon v Martinez, 84 NY2d at 87).

Here, the invoices which the defendants submitted in support of their position that the plaintiff ratified the legal fees charged for services to the decedent were of disputed authenticity and did not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1150; see also Parekh v Cain, 96 AD3d 812; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997). In any event, the invoices did not conclusively establish, as a matter of law, a defense to the first and second causes of action (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d at 1150-1151; see also Cannon v First Natl. Bank of E. Islip, 98 AD2d 704, 705, affd 62 NY2d 1003). Furthermore, the factual allegations in the first and second causes of action are sufficient to state a cause of action sounding in breach of [*3]fiduciary duty (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d at 1150). Thus, dismissal of the first and second causes of action pursuant to CPLR 3211(a)(1) and (7) was not warranted.

The Supreme Court properly, in effect, granted that branch of the defendants' motion which was to dismiss the sixth cause of action alleging, in effect, legal malpractice as time-barred pursuant to CPLR 3211(a)(5) only to the extent of directing dismissal of so much of that cause of action as was predicated upon alleged acts or omissions occurring more than three years prior to the commencement of the action. Dismissal of the sixth cause of action in its entirety as time-barred was not warranted because, to the extent that the plaintiff's legal malpractice claim is predicated upon the defendants' alleged failure to protect the value of estate assets consisting of the cooperative apartment, the defendants' own submissions raise an issue of fact as to whether the continuous representation doctrine tolled the statute of limitations until February 3, 2008, the date of the final invoice for legal services performed in connection with the sale of the apartment (see Golub v Baer, Marks & Upham, 172 AD2d 489, 490; see also Macaluso v Del Col, 95 AD3d 959, 960; Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120; Howish v Perrotta, 84 AD3d 1312, 1313). Moreover, accepting the facts alleged in the amended complaint as true and according the plaintiff the benefit of every possible inference, the plaintiff's allegation that the defendants negligently failed to protect the cooperative apartment states a legally cognizable claim to recover damages for legal malpractice (see Magnus v Sklover, 95 AD3d 837; Esposito v Noto, 90 AD3d 825). Accordingly, the Supreme Court also properly denied that branch of the defendants' motion which was to dismiss the sixth cause of action pursuant to CPLR 3211(a)(7). "

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) ; 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.
 

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) ; 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. "

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 ;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). "
 

Plaintiff is injured while at work as a teacher in NYC and goes to an attorney.  The attorney advises her to bring a Workers' Compensation Claim, and does so for her.  More than 90 days passes, and lo and behold, it turns out that Teachers in NYC are not covered by WC, and are (must) bring a personal injury claim.  It's too late for plaintiff.  Is this legal malpractice? 

Supreme Court did not think so.  The Appellate Division, however, did.  Gaskin v Harris   2012 NY Slip Op 06123  Decided on September 12, 2012  Appellate Division, Second Department . 
 

"However, the Supreme Court should not have granted that branch of the defendant's cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice. To recover damages for legal malpractice, a plaintiff is required to 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 duty caused the plaintiff to suffer actual and ascertainable damages (see Dombrowski v Bulson, 19 NY3d 347, 350; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; McCoy v Feinman, 99 NY2d 295, 301-302; Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716, 717). When determining 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 [*2]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; Marom v Anselmo, 90 AD3d 622, 623), and "may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d at 88; see Berman v Christ Apostolic Church Intl. Miracle Ctr., Inc., 87 AD3d 1094, 1096-1097; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 797). Further, 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 at 326; see Leon v Martinez, 84 NY2d at 88; Robertson v Wells, 95 AD3d 862, 863; Magnus v Sklover, 95 AD3d 837, 837).

Applying these principles here, the complaint, as amplified by the affidavits submitted by the plaintiff, adequately states a cause of action to recover damages for legal malpractice. The plaintiff alleges that the defendant negligently advised her to seek Workers' Compensation benefits for injuries sustained in the course of her employment as a substitute teacher, when he should have known, as an attorney specializing in this area, that New York City teachers and substitute teachers are not covered by the Workers' Compensation Law. She further claims that the defendant advised her to pursue a baseless Workers' Compensation claim instead of litigation, failed to advise her of the deadline for filing a notice of claim, and counseled her against accepting a mediator's recommended settlement that would have afforded her some compensation for her injuries. Although the documentary evidence submitted by the defendant establishes that he promptly filed a Workers' Compensation claim on the plaintiff's behalf, and that the claim was denied on the ground that New York City teachers, including substitute teachers, are not covered by the Workers' Compensation Law, this evidence does not conclusively establish a defense to the plaintiff's asserted malpractice claims. Accordingly, the Supreme Court should have denied that branch of the defendant's cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice (see Magnus v Sklover, 95 AD3d at 837; Ofman v Katz, 89 AD3d 909, 910; Thompsen v Baier, 84 AD3d 1062, 1063). "

Legal malpractice and arbitration, even arbitrations that are on the edge of the legal malpractice case have an uneasy relationship.  Courts are more than willing to dismiss legal malpractice cases because of an earlier arbitration.  It need not have been on the ultimate merits of whether the attorney departed from good and accepted practice.  It may have been over whether the attorney should be awarded any fees, or over whether the attorney should have been permitted to withdraw from the case, and today, the First Department conjured another situation inFeinberg v Boros
2012 NY Slip Op 06114   Decided on September 11, 2012   Appellate Division, First Department .  Now, the question is whether an arbitration between plaintiff and his former business partner limits plaintiff's right to sue his attorneys for claimed departures after the arbitration. 
 

"At issue on this appeal is whether the defendant members of a law firm committed legal [*2]malpractice by not advising the plaintiff, Herbert Feinberg, that an agreement with his former business partner to limit the collateral estoppel effect of an arbitration award would have been enforceable in Feinberg's lawsuit against a third party. As set forth in greater detail below, precedent, sparse as it is on this issue, nevertheless mandates that such limiting agreements are not carved-out exceptions to normal collateral estoppel principles. We therefore find that where, as here, an issue has been fully and vigorously litigated, no limiting agreement as to an arbitration award may bar the assertion of a collateral estoppel defense by a third party as to that issue. "

"It is well established that the doctrine of collateral estoppel bars a litigant from disputing an issue in another proceeding when that issue was decided against the litigant in a proceeding in which he had a "full and fair opportunity" to contest the matter. Schwartz v. Public Adm'r of County of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 959, 246 N.E.2d 725, 728 (1969). Collateral estoppel preserves party and judicial resources by preventing relitigation of matters that have already been resolved. Further, it [*6]prevents inconsistent results. 24 N.Y.2d at 74, 298 N.Y.S.2d at 962. Collateral estoppel can be asserted in a new case by a nonparty to the original proceeding. B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 147, 278 N.Y.S.2d 596, 601, 225 N.E.2d 195, 198 (1967). Moreover, collateral estoppel principles "apply as well to awards in arbitration as they do to adjudications in judicial proceedings." Matter of American Ins. Co. [Messinger-Aetna Cas. & Sur. Co.], 43 N.Y.2d 184, 189-190, 401 N.Y.S.2d 36, 39, 371 N.E.2d 798, 801 (1977), citing Rembrandt Indus., v. Hodges Intl., 38 N.Y.2d 502, 381 N.Y.S.2d 451, 344 N.E.2d 383 (1976).

Confusion has arisen in this case because the Messinger Court also held, seemingly inconsistently, that "[i]n circumstances involving arbitration, ... the parties themselves can formulate their own contractual restrictions on carry-over estoppel effect." Messinger, 43 N.Y.2d at 194, 401 N.Y.S.2d at 42. On closer analysis, however, it is clear that the confusion is not warranted.

The ability of parties to formulate their own contractual restrictions as to the estoppel effect of arbitration awards is not, in reality, a carved-out exception to normal collateral estoppel principles. The idea of entering into a contractual limitation was established by the Messinger Court in the context of a dispute arising from an arbitration between insurance carriers. Messinger, 43 N.Y.2d at 187, 401 N.Y.S.2d at 37. The Court recognized that arbitration hearings may be "summary, pro-forma proceeding[s]" and that the opportunity "for summary dispositions should not be inhibited by automatically according a binding estoppel effect to the first determination." Messinger, 43 N.Y.2d at 191, 401 N.Y.S.2d at 42. Hence, the Court concluded that in arbitration "the parties themselves can formulate their own contractual restrictions on carry-over estoppel effect." 43 N.Y.2d at 193, 401 N.Y.S.2d at 42. However, the Court cautioned that "[t]hey cannot, of course, impose similar limitations which would impair or diminish the rights of third persons." Messinger, 43 N.Y.2d at 194, 401 N.Y.S.2d at 42. This latter caution by the Court has been characterized as dicta particularly in view of two appellate division determinations that appeared to uphold agreements that imposed such a limitation on third parties. See Kerins v. Prudential Prop. & Cas., 185 A.D.2d 403, 585 N.Y.S.2d 637, 638(3rd Dept. 1992); also Matter of State Farm Ins. Co. v. Smith, 277 A.D.2d 390, 717 N.Y.S.2d 210 (2d Dept. 2000). "

The answer to today's question is "quite a ways." Without further comment, here is Breytman v Schechter ; 2011 NY Slip Op 51375(U) ;  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
 

Attorneys frequently use LLPs or PCs as their corporate identity. Does this really make a difference in small or single attorney settings? The short answer is: "yes!" in Teodorescu v Resnick & Binder, P.C. ;2010 NY Slip Op 20400 ;Supreme Court, Kings County ;Kurtz, J. we see what happens when plaintiff fails to name the individual attorneys,
 

"During the approximately two years this action was stayed, the attorneys who formed the defendant professional corporation, David Joseph Resnick and Serge Yakov Binder (hereinafter "Resnick" and "Binder"), were both disbarred. Plaintiff now moves to have the stay vacated and this action placed on the trial calendar and for leave to amend the summons and complaint to add Resnick and Binder as individual defendants pursuant to CPLR §203(b), since the statute of limitations as to these defendants has already expired.

A plaintiff seeking the benefit of the relation-back doctrine must establish the existence of a mistake concerning the defendant's identity that prevented plaintiff from serving that defendant before the statute of limitations expired. See Bryant v. South Nassau Communities Hosp., 59 AD3d 655, 656 (2d Dept 2009). Evaluation of an alleged mistake then turns on whether the mistake interfered with plaintiff's ability to name all of the proper defendants prior to expiration of the limitation period. Compare Monir v. Khandakar, 30 AD3d at 489, supra (finding plaintiff's failure to add a professional corporation to her medical malpractice claims against the defendant dentist to be a mistake based upon her lack of knowledge as to the corporation's existence) with Contos v. Mahoney, 36 AD3d 646, 647 (2d Dept 2007) (declining to apply the relation-back doctrine where plaintiff failed to sue the defendant lessor in a timely manner, despite receiving a copy of a Lease Termination Statement identifying Nissan as the [*3]lessor prior to the expiration of the limitation period.) Under these guidelines, when a plaintiff is aware of the defendants' potential liability and deliberately decides not to assert a claim against them, there is no mistake and thus no relation-back. See Buran v. Coupal, 87 NY2d at 181, supra. Under such circumstances, a "plaintiff should not be given a second opportunity to assert that claim after the limitations period has expired (citations omitted)." Id. The Court concludes that in order for plaintiff to receive the benefit of the relation-back doctrine, all three prongs enunciated in Brock, as modified by the Court of Appeals in Buran, must be satisfied.

The Court finds that plaintiff has failed, however, to satisfy the third prong under the Brock test because plaintiff knew of the proposed defendants' potential liability at the time she filed a legal malpractice action against defendant. Finally, since the relation-back doctrine as a whole hinges on the sufficiency of notice to the proposed new defendants within the statutory limitations period, the correct inquiry is not whether Resnick and Binder were aware of the charges brought by plaintiff against defendant, but whether such knowledge could reasonably have led them to the conclusion that they were intentionally omitted as parties to the action and were, thus, no longer at risk of litigation. "
 

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  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)."

As we come up on the end of the baseball season, we are reminded of the Yogi Beria phrase.  Here inPsomostithis v Matthews   2012 NY Slip Op 32232(U)   August 20, 2012   Supreme Court, Queens County   Docket Number: 15200/06   Judge: Martin J. Schulman we see that processing and succeeding at a legal malpractice case is sometimes only the end of the beginning not the beginning of the end.

"This action was commenced in 2006 for legal malpractice, arising out of the representation of plaintiff in a personal injury action by defendant Paul C. Matthews, Esq. in March of 1998, when plaintiff was injured on a ship. The underlying action was ultimately dismissed. Subsequent to the commencement of this action, defendant was declared an incapacitated person, and co-guardians were appointed to him by order dated July 11, 2008 (Sandra L. Sgroi, J., Supreme Court, Suffolk County). The original coguardians were Stephen Masom and Vera Matthews, Mr. Matthews' wife. Vera Matthews subsequently passed away, and Stephen Masom was appointed successor
guardian.
 

This action was set down for trial on June 22, 2009. After consulting with, and obtaining the consent of the guardian, Stephen Masom, defense counsel agreed to settle this case in the amount of $350,000.00, with payment to be made four months from June 22, 2009. It was also agreed that judgment interest, at 9% per annum, would accrue on the settlement amount. This settlement agreement was confirmed in writing by defense counsel, and agreed to by the guardian, Stephen Masom, who was also copied on the terms of the settlement. Thereafter, defense counsel sent plaintiff a “Seamen’s Release”, which plaintiff executed and returned on July 2, 2009.

The settlement principal was not paid, and on January 5, 2010, plaintiff moved to compel payment of the settlement and to enter judgment against defendant. In an order of this court dated January 27, 2010, the motion was denied with leave to renew, if necessary, following the resolution of the guardianship proceeding in Suffolk County. By order dated May 23, 2011, the Honorable Martha L. Luft, Supreme Court, Suffolk County, granted plaintiff leave to enter judgment without further notice against defendant Matthews for the unpaid settlement in the amount of $350,000.00, plus interest, pursuant to CPLR §5003-a. In that order, the guardian, Stephen Masom, was granted the power
and duty to take steps to market and/or mortgage certain real properties of defendant Matthews to secure sufficient proceeds to satisfy the obligation owed plaintiff.

That branch of defendant’s motion for an order pursuant to CPLR §3217(a)(2), Mental Hygiene Law § 81.21(b), (c) & (d) and CPLR §5015(a), to set aside the settlement of this action and to vacate the order entered on August 26, 2011, and the judgment entered on October 17, 2011 is denied. Stipulations of settlement are favored by the courts and are not to be lightly set aside (see, e.g., Daniel v Daniel, 224 AD2d 573), especially, where, as here, the party seeking to vacate the stipulation was represented by counsel (See, Hallock v State of New York, 64 NY2d 224 [1984]; see also, Town of Clarkstown v M.R.O. Pump & Tank, Inc., 287 AD2d 497 [2001]; Kazimierski v Weiss, 252 AD2d 481 [1998].) Relief from a stipulation will be granted only upon a showing of
good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake. (See Hallock v State of New York, supra; Kelley v Chavez, 33 AD3d 590 [2006]; Town of Clarkstown v M.R.O. Pump & Tank, Inc., supra.)  In this case, defendant has failed to make the requisite showing of good cause sufficient to invalidate the parties’ stipulation of settlement. (See Macaluso v Macaluso, 62 AD3d 963 [2009]; see also Trakansook v Kerry, 45 AD3d 673 [2007]; Matthews v
Castro, 35 AD3d 403 [2006].) "

As we come up on the end of the baseball season, we are reminded of the Yogi Beria phrase.  Here inPsomostithis v Matthews   2012 NY Slip Op 32232(U)   August 20, 2012   Supreme Court, Queens County   Docket Number: 15200/06   Judge: Martin J. Schulman we see that processing and succeeding at a legal malpractice case is sometimes only the end of the beginning not the beginning of the end.

"This action was commenced in 2006 for legal malpractice, arising out of the representation of plaintiff in a personal injury action by defendant Paul C. Matthews, Esq. in March of 1998, when plaintiff was injured on a ship. The underlying action was ultimately dismissed. Subsequent to the commencement of this action, defendant was declared an incapacitated person, and co-guardians were appointed to him by order dated July 11, 2008 (Sandra L. Sgroi, J., Supreme Court, Suffolk County). The original coguardians were Stephen Masom and Vera Matthews, Mr. Matthews' wife. Vera Matthews subsequently passed away, and Stephen Masom was appointed successor
guardian.
 

This action was set down for trial on June 22, 2009. After consulting with, and obtaining the consent of the guardian, Stephen Masom, defense counsel agreed to settle this case in the amount of $350,000.00, with payment to be made four months from June 22, 2009. It was also agreed that judgment interest, at 9% per annum, would accrue on the settlement amount. This settlement agreement was confirmed in writing by defense counsel, and agreed to by the guardian, Stephen Masom, who was also copied on the terms of the settlement. Thereafter, defense counsel sent plaintiff a “Seamen’s Release”, which plaintiff executed and returned on July 2, 2009.

The settlement principal was not paid, and on January 5, 2010, plaintiff moved to compel payment of the settlement and to enter judgment against defendant. In an order of this court dated January 27, 2010, the motion was denied with leave to renew, if necessary, following the resolution of the guardianship proceeding in Suffolk County. By order dated May 23, 2011, the Honorable Martha L. Luft, Supreme Court, Suffolk County, granted plaintiff leave to enter judgment without further notice against defendant Matthews for the unpaid settlement in the amount of $350,000.00, plus interest, pursuant to CPLR §5003-a. In that order, the guardian, Stephen Masom, was granted the power
and duty to take steps to market and/or mortgage certain real properties of defendant Matthews to secure sufficient proceeds to satisfy the obligation owed plaintiff.

That branch of defendant’s motion for an order pursuant to CPLR §3217(a)(2), Mental Hygiene Law § 81.21(b), (c) & (d) and CPLR §5015(a), to set aside the settlement of this action and to vacate the order entered on August 26, 2011, and the judgment entered on October 17, 2011 is denied. Stipulations of settlement are favored by the courts and are not to be lightly set aside (see, e.g., Daniel v Daniel, 224 AD2d 573), especially, where, as here, the party seeking to vacate the stipulation was represented by counsel (See, Hallock v State of New York, 64 NY2d 224 [1984]; see also, Town of Clarkstown v M.R.O. Pump & Tank, Inc., 287 AD2d 497 [2001]; Kazimierski v Weiss, 252 AD2d 481 [1998].) Relief from a stipulation will be granted only upon a showing of
good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake. (See Hallock v State of New York, supra; Kelley v Chavez, 33 AD3d 590 [2006]; Town of Clarkstown v M.R.O. Pump & Tank, Inc., supra.)  In this case, defendant has failed to make the requisite showing of good cause sufficient to invalidate the parties’ stipulation of settlement. (See Macaluso v Macaluso, 62 AD3d 963 [2009]; see also Trakansook v Kerry, 45 AD3d 673 [2007]; Matthews v
Castro, 35 AD3d 403 [2006].) "

Ponce v Howard Simmons, P.C.; 2012 NY Slip Op 32247(U); August 23, 2012; Supreme Court, New York County; Docket Number: 108692/07; Judge: Martin Shulman is a classic immigration legal malpractice matter.  It seems that there are ever changing INS or ICE or Homeland Security forms and programs and that the able immigration practitioner has to be completely up to date on the forms and the programs.  It is alleged here that the defendant attorney filed the wrong forms, possibly outdated, and that as a result, the clients will have to leave the US.

Immigration legal malpractice cases present a full menu of problems.  How do you prove the client would have been approved?  Where is the client now?  How are they supporting themselves?  Will they be in the US for trial?  Can the defendants simply out wait them?

In this case, defendants did not obtain summary judgment because there was no expert affidavit in support of the motion.  "In a legal malpractice action, “expert testimony is generally required to establish a breach of the standard of professional care, except where the daily experience of the
fact finder provides a sufficient basis for judging the adequacy of the professional service.” Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 148 (1976); S & D Petroleum Co., lnc. v Tamsett, 144 AD2d 849 (3d Dept 1988). In the context of a motion for summary judgment, the burden rests upon the moving party, in this case the defendant, “to establish through expert opinion that he did nof perform below the ordinary reasonable skill and care possessed by an average member of the legal community (citations omitted).” Suppiah v Kalish, 76 AD3d 829, 832 (Is* Dept 2010). Defendant is required to “establish through an expert’s affidavit that even if he did commit malpractice, his actions were not the proximate cause of the plaintiff‘s loss (citation omitted).’’ Id.
Defendants do not submit an expert affidavit regarding either whether Simmons’ actions and/or inactions constituted malpractice or whether those actions were or were not the proximate cause of plaintiffs’ loss. “By failing to submit the affidavit of an expert, defendant never shifted the burden to plaintiff.” Id. Instead, defendants’ counsel improperly attempts to satisfy this burden by submitting a reply affirmation averring that he is an immigration law expert and incorporating by reference the arguments made in the Defendant’s Brief in Support of the Motion for Summary Judgment. Vrhovc Reply Aff. at 77 15-20. It is, however, generally improper for counsel to function as both an advocate and an expert witness. See Ellis v Broom County, 103 AD2d 861, 861 (3d Dept 1984)(“An obvious justification for the advocate-witness rule is avoidance of the unseemly circumstance of placing an attorney in a position in which he must argue the credibility of his own testimony”); Emery Cell; Brinckerhoff & Abady, LLP v Rose, 201 2 WL 1656077 *24-25,2012 NY
Misc LEXIS 2136 *29-30, 2012 NY Slip Op 31 198(U) (Sup Ct, NY County 2012); see also Rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0 [previously Rule 1200.21 (DR 5-1 02) of the Code of Professional Responsibility]. In any event, even if defendants had provided an expert affidavit, their motion for summary judgment would still be denied as issues of fact exist.

Defendants argue that dismissal is warranted because: ’I) plaintiffs cannot prove that they would have succeeded in obtaining their adjustment of status “but for” Simmons’ negligence; and 2) plaintiffs have not shown damages."

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 ;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]"

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 ;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]"

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.
 

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 ; 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. "

Barely submerged below the decisions of trial and appellate courts is the fear that if legal malpractice litigation is given full rein, there will be a legal malpractice case which immediately follows every trial of any nature. After all, the one thing that legal malpractice always has are claims of attorney misrepresentation, and every trial has one or more attorneys. So, in Kleinser v Astarita 2012 NY Slip Op 01130 ;; Appellate Division, First Department we see such a situation. Plaintiff sues and loses a case, and then sues and loses a legal malpractice.
 

"We need not decide the statute of limitations issue, because even if timely commenced, plaintiff failed to raise an issue of fact as to his claims of legal malpractice and breach of contract. Plaintiff's contention that defendants did not place before the trial court in the underlying action the evidence of his ownership interest in the "47BH Account" is unsupported in the record. The trial court in the underlying action expressly found that plaintiff had a 1/3 interest in the 47BH Account. Moreover, the court explained, in detail, that that 1/3 interest entitled plaintiff to recover only $37,108, not the much greater sums he sought. Plaintiff does not argue that the court's calculation of damages was erroneous or a result of defendants' negligence. Hence, he failed to show that any negligence on defendants' part proximately caused him to recover less than he was otherwise entitled to (see Brooks v Lewin, 21 AD3d 731, 734 [2005], lv denied 6 NY3d 713 [2006]). To the extent plaintiff argues that defendants did not sufficiently emphasize his ownership in the 47BH account, the argument is unavailing, since an insufficient emphasis would be, "at most, a mere error in professional judgment not rising to the level of legal malpractice" (see Geller v Harris, 258 AD2d 421, 421 [1999]; Rubinberg v Walker, 252 AD2d 466, 467 [1998]).
As to his breach of contract claims, plaintiff failed to present evidence establishing the term of his alleged oral agreement with defendant Martin Kaplan whereby Kaplan agreed that defendant Gusrae Kaplan & Bruno would prosecute all appeals from the underlying judgment for no more than $50,000. "

 

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;  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 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

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 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). "
 

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); 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’s 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 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) ; ; 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). "
 

One of the more intriguing aspects of the attorney fee and disputes field is the interplay of a strongly put rule to attorneys, and the consequences of ignoring that rule. The rule: "You must have a retainer agreement." What happens when an attorney sues for fees, yet failed to have a retainer agreement as defined in 22 NYCRR 1215 et seq ? Really nothing. The Second Department in Seth Rubenstein PC v. Ganea, 41 AD3d 54 (2nd Dept, 2007)

"22 NYCRR 1215.1, otherwise known as the "letter of engagement rule," was promulgated by joint order of the appellate divisions, and applies to all civil actions where the amount in controversy is $3,000 or more. The rule requires attorneys to provide all clients with a written letter of engagement explaining the scope of legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a dispute under Rules of the Chief Administrator of the Courts (22 NYCRR) part 137 (see 22 NYCRR 1215.1 [b]; see generally Grossman v West 26th Corp., 9 Misc 3d 414 [2005]). The rule is also satisfied if the attorney and client execute a formal written retainer agreement reflecting the same information as required for a letter of engagement (see Beech v Gerald B. Lefcourt, P.C., 12 Misc 3d 1167[A] [2006]). The rule became effective on March 4, 2002 (see 22 NYCRR 1215.1 [a]; Brown Rudnick Berlack Israels LLP v Zelmanovitch, 11 Misc 3d 1090[A] [2006]), approximately seven weeks before Ganea retained Rubenstein for the guardianship matter underlying this appeal.

The language of 22 NYCRR 1215.1 contains no express penalty for noncompliance (see 22 NYCRR 1215.1; Beech v Gerald B. Lefcourt, P.C., supra; Matter of Feroleto, 6 Misc 3d 680, 682 [2004]). Indeed, the intent of rule 1215.1 was not to address abuses in the practice of law, but rather, to prevent misunderstandings about fees that were a frequent source of contention between attorneys and clients. This intent was described by Chief Administrative Judge Jonathan Lippman upon the rule's adoption, that "this [rule] is not about attorney discipline in any way, shape or form, [*5]and we certainly do not expect in any{**41 AD3d at 61} significant degree there to be a large number of disciplinary matters coming out of this rule" (Caher, Rule Requires Clients Receive Written Letters of Engagement, NYLJ, Jan. 22, 2002, at 1, col 1, and quoted in Matter of Feroleto, supra at 683). The purpose of the rule therefore is to aid the administration of justice by prodding attorneys to memorialize the terms of their retainer agreements containing basic information regarding fees, billing, and dispute resolution which, in turn, minimizes potential conflicts and misunderstandings between the bar and clientele. "

In Roth Law Firm, PLLC v Sands we see the tortured path analysis must take. Justice Madden of Supreme Court, New York County must decide what services were being offered by plaintiff law firm, who received the services and in what setting the services were offered, and then, determine the quantum meruit aspects of the whole case.

Mr. San LLC v Zucker & Kwestel LLP   2012 NY Slip Op 32119(U)   August 2, 2012   Sup Ct, Nassau County   Docket Number: 601065/11   Judge: Stephen A. Bucaria is an interesting example of the "whose lawyer is it" question that frequently arises in the formation of new businesses. 

"This is an action for aiding and abetting fraud. Plaintiffs invested substantial amounts of money with Gershon Barkany who held himself out as a financial advisor and real estate investor. Plaintiffs allege that Barkany represented that the money was to be used to fund real estate loans and other investments but Barkany was actually running a Ponzi scheme. Plaintiffs further allege that Barkany presented defendants Zucker & K westel LLP and Steven K westel as his attorneys in connection with the sham real estate transactions, and the firm accepted wire transfers of plaintiffs ' funds into its escrow account."

"Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties, for harm caused by professional negligence, unless there is a relationship sufficiently approaching privity between the attorney and the alleged client Schneider v Finman 15 NY3d 306 309 (2010)). This rule protects attorneys from legal malpractice suits by indeterminate classes of plaintiffs whose interests may be at odds with the interests of the acknowledged client (Id). Since an attorney-client relationship does not depend upon a formal retainer agreement or upon payment of a fee, the court must look to the words and actions of the parties (Moran v Hurst 32 AD3d 909, 911 (2d Dept 2006)). The unilateral belief of a plaintiff alone does not confer upon him or her the status of a client (Id). Plaintiffs allege that Barkany presented defendants as his attorneys, rather than the attorneys for the plaintiffs. An attorney for an organization is not the attorney for its members (Professional Conduct Rule 1. 13). However, it appears that no company had been formed at the time that plaintiffs made their investment. At the time that plaintiffs invested
their funds, their interests seemed aligned with Barkany , at least as to the expected profitability of the venture. Moreover, the fact that Kwestel borrowed money from Barkany suggests that there may have been collusion between client and attorney and perhaps even knowledge on Kwestel' s part as to Barkany s fraud upon the plaintiff. In these circumstances, the court must give plaintiffs the benefit of the possible favorable inference that an attorney-client relationship arose when defendants accepted plaintiffs ' money into their escrow account. Defendants' motion to dismiss plaintiffs ' malpractice claim for a defense founded upon documentary evidence and failure to state a cause of action is denied. Fiduciary liability is not dependent solely upon an agreement, but results when one of the parties is under a duty to act for or give advice for the benefit of the other upon matters within the scope of the relationship EBC I, Inc v Goldman Sachs 5 NY3d 11 , 19-
(2005)). An attorney for a limited liability company may have a fiduciary duty towards an individual member, at least with respect the member s share of distributions of the company's profits Kurtzman v Burgol 40 AD3d 588 (2d Dept 2007)). As noted, it appears that no company had been formed at the time that plaintiffs made their investment. Nevertheless, having accepted plaintiffs ' money into escrow , defendants may have had a fiduciary duty to make sure that the funds were applied to the real estate investment. Defendants' motion to dismiss plaintiffs ' breach of fiduciary duty claim for a founded upon documentary evidence and failure to state a cause of action is  denied."

The decision in this case is straightforward, but gives practitioners little practical advice on how to word and present an expert's affidavit. In Giardina v Lippes, 2010 NY Slip Op 06834;; Appellate Division, Fourth Department we see two things. The first is that the two summary judgment motion rule is not really a rule at all; it is really just guidance to the Court. Two motions for summary judgment might be entertained after all.
 

The second issue we see is that of the quality of expert opinions in summary judgment. Once, the rule was that courts scrutinize whether movant demonstrates prima facie entitlement to summary judgment, and if so, whether opponent demonstrates material questions of fact that continue to require resolution by the trier of fact.

The quality of an expert's opinion was sacrosanct, since facts may not be debated in a motion for summary judgment. Here, and in many other cases the kicker is when a court feels permitted to rule out the expert's opinion as "conclusory." In this case, as in many other appellate decisions, no time is taken to explain why the particular affidavit was "conclusory" rather than permissible. What makes the difference?

Here, defendant's expert presented a "good" affidavit, and plaintiff's expert presented a "conclusory" affidavit in a lawn care products liability case. How does one tell the difference?
 

This is a convoluted case, which started as a products liability-fall from a ladder- case, morphed into a legal malpractice case, went to trial and was prematurely dismissed during plaintiff's case, was reversed on appeal and now comes back on a preclusion motion. The problem in Burbige v Siben & Ferber   2012 NY Slip Op 32086(U)   July 30, 2012   Sup Ct, Nassau County   Docket Number: 010334/07   Judge: Randy Sue Marber is that there is no ladder.  In this case, no ladder, no proof that the ladder was defective. Whose fault is it?

"As to the order of preclusion, this Court begins with noting that, here, the Appellate Division has not only directed a new trial but has specifically set forth the evidentiary issue inadequately established at the original trial by the Plaintiff; to wit plaintiff() fail ( ed) 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. Consequently, the issue becomes whether the Plaintiff should be permitted to now present evidence that it could have properly presented at the first trial, the expert affidavit necessary to establish his success in the underlying products liability action. 

Based upon the papers presented for this Court' s consideration, this Court finds that the Plaintiff s failure to disclose his expert was in fact willful and intentional. Indeed the Appellate Division found that the Plaintiff s offer of proof was inadequate and wholly insufficient due to the absence of an expert affidavit demonstrating the merits of the underlying products liability action. Perhaps more critical is the fact that counsel for the Plaintiff, in support of his cross-motion infra again states that "the case law and the circumstances do not war ant the plaintiff to obtain an expert" (Aff. In Supp. Of Cross- Motion 6). Furthermore, the Plaintiff has failed entirely, even at this juncture in opposition
to the Defendants s instant motion, to proffer a reasonable excuse, under the circumstances
for his delay in furnishing name and affidavit of his expert (CPLR ~ 3101 (d) (I); Wartski v. C.W Post Campus of Long Is. Univ. 63 A.DJd 916 917 (2 Dept. 2009)). Moreover the Defendants wil clearly be prejudiced should this Court determination be to permit the Plaintiff to now submit the name and testimony of their expert. Although a new trial has been granted by the Appellate Division and further that the Appellate Division has specifically set forth the evidentiary issue inadequately
established at the original trial, the fact is that the Plaintiff has, nonetheless, failed to meet his burden, under CPLR ~ 3101 that would sufficiently oppose the Defendants' entitlement to preclusion. In fact, the Plaintiff has even failed to establish his burden under 22 NYCRR 202.21 (d) that would permit this Court to award post-note of issue discovery (cf Scanga Family Practice Assocs. of Rockland, P. c., 2006 WL 6822760 (Sup. Ct. Rockland 2006); Bierzynskiv. New York Central Railroad Co. 59 Misc. 2d 315 (Sup. Ct. Erie 1969) aff' d29 2d 804 (1971) rearg. denied 30 N. 2d 790 (1972)).

Counsel for the Plaintiff bases his entire motion on a spoliation of the evidence argument; that is, counsel for the Plaintiff submits that allegedly for more than 16 years counsel for the Defendants, failed to inspect and preserve the defective ladder, failed to  obtain expert reports with respect to the defectively manufactured ladder, and effectively destroyed the key physical evidence of the defective ladder prior to the commencement of the Plaintiff s legal malpractice action. Spoliation of evidence is a factual and legal question in this malpractice case involving an underlying products liability claim. Spoliation of evidence occurs where a litigant intentionally or negligently disposes of crucial items of evidence before his or her adversaries have any opportunity to inspect them (Kirkland v. New York City Housing Authority, 236 A. 2d 170 (1st Dept. 1997)).

The underlying action was one sounding in products liability. The Plaintiff claims herein that the product that was alleged to be defectively designed or manufactured the ladder, was negligently or intentionally lost or destroyed subsequent to his accident and before anyone had an opportunity to inspect it. Although the Plaintiff charges his former attorneys in the underlying action, the Defendants herein, with spoliation of evidence, the Plaintiff makes no attempts to show that the ladder in question was ever in the possession of the Defendants or that it existed or was available when they were retained. "

How far may an attorney go when dealing with a client before the line is crossed and  extreme emotional distress may be charged?  InBlumencranz v Botter  2012 NY Slip Op 32089(U)
July 27, 2012  Sup Ct, Nassau County  Docket Number: 15489/11  Judge: Joel K. Asarch  we see behavior that is "utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law. Insofar as plaintiff includes alleged professional failures" damages for the intentional infliction of emotional distress are not recoverable in  a legal malpractice action Epifano v. Schwartz 279 AD2d 501 , 503 (2d
Dept 2001)), 

"Plaintiff, Lisa Blumencranz, retained the services of defendant, Allan S. Botter, to represent her in a divorce proceeding. Blumcrantz alleges that her former husband presented her with the names of two attorneys and advised her to choose one of them "if she wished the matter to proceed smoothly . He allegedly warned that if she retained an attorney of her own choosing, the choice would result in greater difficulty" for her. Blumencranz avers that her former husband had "been
in contact" with the attorney she chose, defendant Alan S. Botter, before she retained him. He had reached "an understanding" with Botter that he would be "paid directly by her then-husband" for
representing her.

"She alleges that Botter "belittled and demeaned" her, and mocked her when she begged" for changes to the child custody agreement. She alleges that the parties had joint custody but final decisions were with the husband, and that no set holiday schedule was included. The agreement also allowed the children "to decide when and if' they would speak to her. She alleges that her attorney told her that is how things were and to "deal with it.

Addressing the emotional injure causes of action, the tort of intentional infliction of emotional distress predicates liability upon the basis of "extreme and outrageous conduct which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society (Freihofer v. Hearst Corp. 65 NY2d 135 (1985)). The requirements are "rigorous, and difficult to satisfy" (Howell New York Post Co. 81 NY2d 115, 122 (1993)), as even conduct which may be characterized as "unacceptable and socially repugnant" does not "rise to the level of atrocity" (Shea v. Cornell University, 192 AD2d 857 (3d Dept 1993)). The wrongful conduct must consist of more than "insults" or "indignities" and must be so "shocking and outrageous" as to "exceed all reasonable bounds of decency (Nestlerode v. Federal Ins. Co., 66 AD2d 504 508 (4 Dept 1979), app denied 48 NY2d 604 (1979)). An example of conduct which survived the difficult threshold for atrocious conduct may be found in Bunker Testa, 234 AD2d 1004 (4 Dept 1996) There the complaint alleged inter alia [* 4]  yelling and gesturing obscenely at plaintiff , following her home, refusing to leave the premises and significantly, "following her children. .. and telling her that he knew where the children went to school and when they got out of school" (Id).  Here, the nature of plaintiff's alleged complaints in the cause of action for the intentional infliction of  emotional harm amount to insult emotional distress and inadequate legal representation. The alleged conduct, while utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law.  Insofar as plaintiff includes alleged professional failures "( d)amages for the intentional infliction of emotional distress
are not recoverable in a legal malpractice action" (Epifano v. Schwartz 279 AD2d 501 , 503 (2d
Dept 2001)),. 

Something went really wrong with the settlement in a case against A& T Healthcare, LLC by the New York Healthcare Facilities Worker's Compensation Trust.  Settlement (and a release) were followed by several other cases, in which A & T had to pay significant money.  It sued its attorneys in the case of A & T Healthcare, LLC v Markstein    2012 NY Slip Op 51513(U)   Decided on August 7, 2012   Supreme Court, Rockland County   Jamieson, J.    Plaintiff v. Defendant aside, now defendant seeks to bring in an "expert" it relied upon, on a theory of contribution and indemnity.  Or should it be negligence.  The difference is important because it is more than 3 years, but less than 6 years.
 

"Now, third-party defendants seek to dismiss the third-party complaint on statute of limitations grounds. They argue that although framed as claims for contribution and indemnification, which have a six-year statute of limitations, third-party plaintiffs' claims are really for malpractice (which has a three-year statute of limitations). Third-party plaintiffs, of course, disagree. Third-party plaintiffs argue that "a plain examination of the Third-Party Complaint reveals that the claims sets forth against the Third-Party Defendants are for contribution and [*3]indemnification not for professional malpractice." Plaintiff agrees with this assertion, arguing that "the limitations period for a claim for contribution/indemnification is six years regardless of the nature of the actual allegation of wrongdoing and its contaminant [sic] limitations period."

Having reviewed the law on claims for contribution, it appears that the Court need not reach the issue of the statute of limitations for the cause of action for contribution in this case, which is essentially for breach of contract. Structure Tone, Inc. v. Universal Services Group, Ltd., 87 AD3d 909, 929 N.Y.S.2d 242 (1st Dept. 2011) (subcontractor's alleged tort claims were really based on contract). Contribution "is unavailable in the context of a contract action. As the Court of Appeals has noted, purely economic loss resulting from a breach of contract does not constitute injury to property' within the meaning of New York's contribution statute.'" Pilewski v. Solymosy, 266 AD2d 83, 698 N.Y.S.2d 660 (1st Dept. 1999). The First Department has expanded on this holding, in the case of Children's Corner Learning Center v. A. Miranda Contracting Corp., 64 AD3d 318, 879 N.Y.S.2d 418 (1st Dept. 2009). In that case, the Court dismissed a third-party claim for common-law contribution because the underlying claim sought purely economic damages.

Turning to the Second Cause of Action, which seeks indemnification from Mr. Gale and National Risk Services, Inc., the complaint states that Mr. Gale "held himself out as an expert. . . [and third-party plaintiff] relied on the expert advice provided by Monte J. Gale in recommending that A & T agree to execute the Settlement Agreement. . . ." Based on this allegedly negligent advice, A & T entered into the ill-fated Settlement. The complaint states that it seeks indemnification from Mr. Gale should third-party plaintiffs be found liable for malpractice. Third-party defendants argue that this cause of action is time-barred, because it really is seeking damages for malpractice.

Having read all of the papers, the Court finds that third-party defendants have not adequately addressed the issue of whether this claim is actually one for malpractice or negligence,[FN2] rather than a claim for indemnification. Moreover, the motion fails to address the issue of whether a timely indemnification claim can lie when it is based on malpractice or negligence claims which would be untimely. See generally Germantown Cent. School Dist. v. Clark, Clark, Millis & Gilson, AIA, 294 AD2d 93, 743 N.Y.S.2d 599 (3d Dept. 2002) ("Permitting plaintiffs to add these tort claims by recasting them in indemnification and restitution language would improperly circumvent the Statute of Limitations' bar on these claims."). Accordingly, the Court denies third-party defendants' motion with respect to the Second Cause of Action, without prejudice. "

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 ;  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. "

 

We were recently asked whether an Expert, testifying in a legal malpractice case can commit legal malpractice during testimony in the case. We discussed whether there was an attorney-client relationship, and whether "absolute immunity" for in-court testimony applied. Now, Levine v Harriton & Furrer, LLP ; 2012 NY Slip Op 01401 ; Appellate Division, Third Department discusses the same subject, this time for an engineer.
 

"Plaintiff, a licensed professional engineer, was retained to provide services in connection with a personal injury claim in the Court of Claims against the State of New York arising from an alleged highway defect. The claim was subsequently transferred to defendant, a law firm in the Village of Round Lake, Saratoga County, and plaintiff was again retained. The parties initially proceeded upon an oral agreement. In February 2006, plaintiff submitted a written retainer agreement to defendant setting forth a retainer fee and establishing hourly charges and fees, among other things. Defendant paid the retainer fee and, on the claimant's behalf, returned the agreement to plaintiff, without signature. Plaintiff subsequently provided services and submitted bills periodically to defendant. Defendant made payments through December 2007, when the trial was completed; thereafter, defendant made no further payments but did request continuing services, which plaintiff provided. In May 2008, the Court of Claims rendered a determination dismissing the claim upon the ground that negligence had not been proven. Plaintiff allegedly continued to submit invoices for payment of the outstanding balance due through October 2008, but received no response. After plaintiff's counsel contacted [*2]defendant, defendant responded in writing in November 2008, refusing to pay and alleging that the unfavorable determination of the claim had resulted from plaintiff's professional malpractice. "

"Defendant's objections were not primarily grounded in the particulars of the invoices; instead, the central contention is that the failure to pay for plaintiff's services was justified by his alleged malfeasance. However, this claim was not supported by an expert affidavit opining that plaintiff's services "deviated from accepted industry standards" and that this failure proximately caused the loss of the claimant's case (Columbus v Smith & Mahoney, 259 AD2d 857, 858 [1999]; see Travelers Indem. Co. v Zeff Design, 60 AD3d 453, 455 [2009]). Contrary to defendant's claim, the decision of the Court of Claims does not replace such an expert opinion. Although that court criticized some of plaintiff's methods, it made no finding as to his competence beyond the requisite assessment of the credibility of the conflicting expert opinions. The mere fact that the Court of Claims found plaintiff's opinions less credible than those of the opposing experts is insufficient to present a factual issue as to whether his performance was substandard; such determinations are necessarily made whenever the opinions of experts are in conflict. Further, the court explicitly stated that its determination was not based solely on credibility, but also on its factual conclusion that the subject accident was proximately caused by driver error, and not by a highway defect."
 

It's well understood that Courts closely scrutinize the underlying cases when a legal malpractice matter comes up for a dismissal motion.  Jean-Baptiste v Law Firm of Kenneth B. Mock ;  2012 NY Slip Op 05913   Decided on August 8, 2012   Appellate Division, Second Department  is no exception.  The short decision states in cursory fashion: " The Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging legal malpractice. The documentary evidence conclusively established that the plaintiff does not have a viable claim of legal malpractice (see Walker v Kramer, 63 AD3d 723; Faden v Satterlee Stephens Burke & Burke, LLP, 52 AD3d 652). "

When one takes a look at the Supreme Court decision, the matter comes into closer focus. This was a landlord-tenant case.   "Homere, as petitioner landlord represented by the defendant, commenced a nonpayment proceeding in 2008 in the First District Court, Hempstead Part, County of Nassau, Landlord and Tenant against Janice Henderson, as respondent tenant. District
Court Judge Scott Fairgrieve found, the respondent having been duly served with the  notice of petition and petition, the allegations in the petition were established. Judge Fairgrieve noted the parties entered into a settlement stipulation, and subsequently an affirmation of non-compliance was filed with the Clerk of that Court, so upon the motion of the defendant Judge Fairgrieve directed judgment entered for Homere. Judge Fairgrieve also determined no rent nor attorneys ' fees was due and owing to Homere. On December 2, 2008, the Clerk of First District Court entered a  judgment of possession of leased premises, to wit 196 Long Beach Road, 1 st floor, Hempstead, New York to Homere with a business address of 11 Oak Avenue, Hempstead, New York. That
judgment directed the issuance of a warrant of eviction to remove the respondent tenant and all persons from the demised premises, and place Homere in full possession, and it severed the landlord tenant relationship (see RPAPL 749). In 2009, Homere commenced an action in the First District Court, Hempstead Part County of Nassau under index number 1194/09. On September 16 2009, District Court Judge Michael A. Ciaffa granted Homere counsel's motion , the defendant here, to withdraw there. Homere subsequently retained Chantel Jean Baptiste, Esq. , as counsel in
that civil action. On January 7, 2010, Judge Ciaffa granted a motion to amend the complaint adding the plaintiff husband here as a pro se plaintiff there while granting leave to Chantel Jean Baptiste, Esq., Homere s counsel to withdraw there. On April 14  2010, Judge Ciaffa dismissed that District Court action, and found the plaintiff husband here was not a proper party  there. Judge Ciaffa stated on the record  , "  it seems the parties had a full and fair opportunity in the landlord-tenant case to have all the issues in the case addressed. " Judge Ciaffa concluded , " the claim for back rent was effectively lost at the time that the landlord-tenant court issued its judgment of eviction and your opportunity to pursue that claim was basically given up." Judge Ciaffa found the testimony of the former tenant, Janice Henderson who appeared pro se credible, and determined the
plaintiffs there failed to prove their claims regarding Henderson s responsibility for excessive gas and water charges. Judge Ciaffa added, while Henderson was not completely innocent in the situation, there was a significant fact issue whether the subject premises were sufficiently habitable and that Henderson had a substantial claim against the plaintiffs."

 

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]). "

We have not read a case decision which serves as a mini-essay in a while.  What is spoliation of medical evidence and how is it remedied?  What should the attorney have done in the face of the need for elective surgery in a PI case?  Did the attorney handle the situation correctly?  All these questions are raised and answered in Mangione v Jacobs   2012 NY Slip Op 22211   Decided on July 31, 2012   Supreme Court, Queens County   Markey, J.
 

"The most important issue in this opinion is raised by the motion to dismiss by defendant Jacobs. The plaintiff, Mangione, who previously had been involved in other accidents and personal injury lawsuits, ignored numerous court orders requiring her appearance at Independent Medical Examinations ("IMEs") in this action.The purpose of an IME is to verify a plaintiff's alleged physical injuries and to determine the nature, extent, and cause of any injuries or medical conditions observed.

Specifically, in another action, Susanna Mangione v Metropolitan Transit Authority Bus Company and Caesar Russo, pending in this Court under index number 20671/2009, and awaiting trial, the plaintiff claimed personal injuries to her back and shoulder - - the same body parts that plaintiff contends were injured by the accident in the case at bar. In the earlier action under Index Number 20671/2009, plaintiff was a passenger in a bus on November 17, 2008, that allegedly came to a sudden stop, causing her to fall down. In that case, in two separate decisions, both dated Dec. 2, 2011, and both entered on Dec. 7, 2011, Justice Allan B. Weiss denied a defense motion for summary judgment and denied Mangione's motion to consolidate that case with the instant action. The defendants in the present action contend that they have repeatedly requested the medical records from that earlier action involving Mangione as a rider on a bus, but, to date, they have not been produced, even though Mangione is being represented in both actions by the same counsel. [FN1]

On January 31, 2011, counsel for the parties in the case at bar appeared for a preliminary conference, and the undersigned issued an order directing that the plaintiff appear for IMEs within 45 days of her examination before trial [that was held on September 14, 2011]. On October 5, 2011, counsel for all parties in the present case appeared before Justice Ritholtz for a compliance conference. Justice Ritholtz ordered that defendants designate their doctors for the IMEs within 30 days and that the plaintiff appear 30 days thereafter for the physical examination.

The defense contention on the motion to dismiss the complaint is that plaintiff's surgery on Feb. 27, 2012, and not going to IMEs prior to the surgery, despite three court orders, constituted the intentional spoliation of evidence warranting the most stringent sanction of dismissal of the plaintiff's complaint.

Spoliation of evidence, in all forms, thwarts the proper functioning of our courts. See, Cedars-Sinai Med. Ctr. v Superior Court, 18 Cal. 4th 1, 8, 954 P2d 511, 515, 74 Cal. Rptr. 2d 248, 252 [1998] ["(T)he intentional destruction of evidence should be condemned. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both."]; accord, U.S. Fidelity & Guar. Co. v American Re-Insurance Co., 93 AD3d 14 [1st Dept. 2012] [quoting approvingly a California trial court decision observing that insurer, concerned with a "litigation crisis," destroyed documents in order "to make it more difficult for insureds to establish coverage."].

The United States Court of Appeals for the Second Circuit, in Byrnie v Town of Cromwell Board of Education, 243 F3d 93 [2001], explained that spoliation sanctions serve three purposes:

(1) deterring parties from destroying evidence;

(2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and

(3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.

Read on in the case for a detailed analysis of medical evidence spoliation and remedies.

The undisputed facts in this case are shocking.  "The following facts are undisputed. In or about May 2004, plaintiff, which had a lease on the building located at 2944 3d Avenue in the B r o n x , retained the law firm of Gold, Rosenblatt & Goldstein to commence a commercial summary  nonpayment action against the subtenants of the building, Diab and Hasan Saleh, who were doing business as 2944 3d Ave Retail Corp.("Retail Corp."). Defendant Steven E. Goldstein, a then-partner of the firm undertook the representation of plaintiff, and after commencing the action (Steven's Distributions, Inc. v 2944 3rd Ave Realty Corp., Index No. 90110 (Civ Ct, B r o n x Co, 2 0 0 8 ) , fabricated several court orders purporting to award plaintiff various sums in back rent, so as to persuade plaintiff that Goldstein was actively prosecuting the action. "

So goes Steven's Distribs. Inc. v Gold, Rosenblatt & Goldstein    2012 NY Slip Op 31990(U)
July 24, 2012   Supreme Court, New York County   Docket Number: 106283/09  Judge: Joan A. Madden.  This case is another example of the microscopic examination of "proximate cause" that goes on in legal malpractice litigation.

Justice Madden goes on to find that no matter how much fooling around took place during the litigation it was doomed from the start because no demand for rent had been timely made.  If no demand for rent, then no case.  If no case, then the internal bad behavior of of no interest.

"Accordingly, while Goldstein's erroneous naming of the parties in the caption was unquestionably malpractice sufficient to have caused the dismissal of plaintiff's petition, and while, perhaps, Goldstein's (or Lubellls) failure to prepare plaintiff's bookkeeper for her testimony would also have been sufficient to cause the dismissal, plaintiff in any event could not have prevailed in the first proceeding, since it had failed to prove a pre-litigation rent demand. For that reason, Goldstein's (and possibly, Lubellls) negligence ''was not a proximate cause of any damages arising from the ?loss of the underlying action. Barnett v. Schwartz, 47 AD3d 197, 204 (2nd Dept 2007). Nor can plaintiff prove that, but for Goldstein's failure to prosecute the underlying case for almost t w o years, Retail Corp.'s motion to vacate its default would not have been granted by Judge Rodriguez. While Judge Rodriguez based her decision on l1 [the long standing status of [the] proceeding with no indication that respondent neglected to appear or negotiate, and no indication that petitioner zealously prosecuted its claim" (Chera Aff., Exh. 10, at 2 ) , Diab Salehls affidavit in support of
Retail Corp's order to show cause noted both that there was no such entity as the petitioner named in the caption of the proceeding, and that petitioner lacked standing to prosecute i t s claim, since its lease with the over-landlord had been terminated for nonpayment.

In Crawford v Himmelstein ; 2011 NY Slip Op 31669(U); ; 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])."
 

Familiarity breeds contempt; so goes the aphorism.  In the years since the Court of Appeals decided  Amalfitano v. Rosenberg the use of Judiciary Law 487 has been trending.  Is it now overexposed?  Will we see it in every legal malpractice setting?  Will it be invoked as often as Rule 130?

Herschman v. Kern, Augustine, Conroy & Schoppmann, 2012 NY Slip Op. 31988(U), Justice Madden is a current example.  The case reads very badly for plaintiff, who makes a legal malpractice claim as well as a Judiciary Law 487 claim.  Both are dismissed.

"Although the statute does not expressly require a pattern of chronic delinquency, in certain instances, the Appellate Division, First Department, has made it a prerequisite to recovery (Dinhofer v. Medical Liability Mut. Ins. Co. 92 AD3d 480 [l“Dept 20121; Nason v. Fisher, 36 AD3d 486 [1st Dept 20071, but see, Amalfitano v. Rosenberg, 533 F3d 1 17 [2d Cir ZOOS]). Here, the complaint contains insufficient allegations of chronic delinquency or a pattern of misconduct.
Moreover, Herschman’s claims under Judiciary Law 5 487 fail to allege the type of intentional,
egregious conduct required to permit recovery under the statute. Judiciary Law Section 487 concerns
intentional deception, and not merely negligence (Specialized Indus. Services Corp. v. Carter, 68
AD3d 750 [2d Dept 20091; Scarborough v Napoli, Kaiser & Bern, LLP, 63 AD3d 153[4th Dept]], rearg. denied, 66 AD3d 1.50 [2009]). In this connection, Herschman does not indicate that one of the defendants, or anyone else from the firm, specifically represented to him that KACS was performing work concerning the Medicare investigation after December 10,2008, when Herschman states the file was sent to storage."

"The claim under Judiciary Law 487 must be dismissed."

InLaw Offs. of D'amico & Assoc., PLLC v D'Elia ; 2011 NY Slip Op 21160 ; 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.

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.

InEhrenhalt 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."
 

Would the words "mutual understanding" have made the difference in this case?  Continuous representation by an attorney of a client requires actual work, a mutual understanding that further work has to be performed and a relationship of trust and confidence.  In Landow v Snow Becker Krauss P.C.  2012 NY Slip Op 31971(U)  July 10, 2012  Supreme Court, Nassau County  Docket Number: 18038/11  Judge: Denise L. Sher we see a $4 Million legal malpractice case dismissed on statute of limitations.  Plaintiff argued continuous representation, and the court finally hung its decision on the following:

"For continuous representation doctrine to apply, for purposes of tolling limitations period for legal malpractice action, there must be clear indicia of an ongoing, continuous, developing and dependent relationship between client and attorney which often includes an attempt by attorney to rectify an alleged act of malpractice; its application is limited to instances in which attorney s involvement in case after alleged malpractice is for performance of the same or related services and is not merely continuation of general professional relationship (emphasis added). See Pellati v. Lite Lite 290 AD.2d 544, 736 N.Y.S.2d 419 (2d Dept. 2002). Also, referencing the language of the case cited by plaintiff Shumsky v. Eisenstein, 96 Y.2d 164, 726 N.Y.S.2d 365 (2001), under the doctrine of continuous representation, the three-year statute of limitations for legal malpractice is tolled while the attorney continues represent the client in the same matter, after the alleged malpractice is committed (emphasis added). Firer, the parries must have a "mutual understanding" that further representation is needed with respect to the matter underlying the malpractice claim. See Hasty Hills Stables, Inc. v. Dorfman, Lynch, Knoebel Conway, LLP 52 AD.3d 566 860 N.Y.S.2d 182 (2d Dept. 2008). Since the Verified Complaint in the instant matter lacks any allegation of a "mutual understanding" between plaintiff and defendants of the need for further representationn regarding the tax opinion and/or DC transaction, the continuous representation doctrine does not apply to the instant matter. In fact, the Verified Complaint and supporting affidavit are devoid of any facts that occurred between any defendant and plaintiff regarding the DC transaction and/or the tax treatment thereof between the time period of2003 (when the alleged malpractice act was committed) and 2007 when defendant Meltzer Lippe was retained. Additionally, a legal malpractice cause of action accrues on the date the malpractice was committed, not when it was discovered. See Byron Chemical Co., Inc. v. Groman 61 AD. 909, 877 N.Y.S.2d 457 (2d Dept. 2009). In other words, the statute does not run from the time plaintiff received notice from the IRS in 2007. Accordingly, the malpractice claims of all defendants are dismissed as time-bared. See Serino v. Lipper 47 AD.3d 70 846 N. S.2d 138 (1st Dept. 2007).

Attorneys are subject to a triumvirate of claims, which may generally be:  legal malpractice in tort, legal malpractice in contract and breach of fiduciary duty. Attorneys are fiduciaries of their clients, but interestingly, accountants (even CPAs) are not.   In Knockout Vending Worldwide, LLC v Grodsky Caporrino & Kaufman CPA's, P.C.  2012 NY Slip Op 31855(U)  July 11, 2012
Supreme Court, Suffolk County  Judge: Elizabeth H. Emerson we see the distinction.

In this case business buyers claim they were defrauded when business sellers artificially inflated the value of the business through fraud.  They sue sellers, sundry others, and their CPAs whom they say were hired to do the due diligence on the value of the business.

"Turning to the motion by the Kauman defendants to dismiss the second cause of action, according the plaintiffs the benefit of every possible favorable inference as a general rule, the plaintiffs have failed to state a second cause of action alleging a breach of fiduciary duty. TheCourt notes that the plaintiffs have alleged a cause of action for accounting malpractice. The existence of negligence claims, however, docs not create a fiduciary relationship between the Kaufman defendants and the plaintiffs (Friedman v Anderson, 23 AD3d 163). In general, there is no fiduciary relationship between an accountant and his client (DG Liquidation, Inc. v Anchin, Block & Anchin, 300 AD2d 70). "A conventional business relationship, without more, does not become a fiduciary relationship by mere allegation" (Friedman v Anderson, supra at 166, Oursler v Women's Interart Center, Jnc., 170 AD2d 407, 408). Here, the complaint alleges that the Kaufman defendants were the plaintiffs' personal accountants, and that the plaintiffs placed confidence in the Kaufman defendants' advice and opinions as professional accountants, consultants and advisors. However, while providing financial advice may be within the scope or an accountant's duties, and so within the definition of a conventional business relationship, the  standard that plaintiffs must meet to sustain a cause of action for breach of fiduciary duty has not been met (Staffenberg v Fairfield Pagma Assoc., L.P., 2012 NY AppDiv LEXIS 3423, citing Friedman v Anderson, supra at 166; ef Lavin v Kaufman, Greenhut, Lebowitz & Forman, 226 AD2d 107). Accordingly, the Kaufman defendants' motion to dismiss the second cause of action is granted."

Datatreasury Corp. v Del Col; 2012 NY Slip Op 31913(U); July 5, 2012; Sup Ct, Suffolk County
Docket Number: 11-26774; Judge: John J.J. Jones Jr represents a very unusual use of Judiciary Law 487.  It comes mid-case in a commercial setting.

Judge Jones writes: "As is relevant to the instant action, Del Col, in an attorney affirmation dated January 20,2011, submitted in support of applications for an order to show cause and a temporary restraining order (TR 0) in the underlying case, affirmed that he was the attorney for Mitchael Trimarco and was seeking an ex parte order, without prior notice to defendant Data Treasury and nonparties Keith DeLuca, Shepard Lane, and Claudia Ballard, pursuant to 22 NYCRR 202.7 on the basis that such notice would significantly prejudice Trimarco. The bases for prejudice to Trimarco, according to Del Co ’s affirmation, were that Data Treasury was fleeing the jurisdiction; that Data Treasury was in violation of court orders and secreting its assets; that Data Treasury had tampered with witnesses; and that Data Treasury would further obstruct and impair Trimarco’s ability to recover if advance notice was given. A TRO was thereafter granted ex parte by order dated January 21,201 1 (Gazzillo, J.). The order enjoined Data Treasury and nonparties DeLuca, Lane, and Ballard, the alleged principals of IData Treasury, among other things, from selling, disposing, transferring, and diluting personal property and corporate assets of Data Treasury. It also prohibited Nix, Patterson & Roach, a law firm in Texas, from dispersing any monies or things of value to Data Treasury or its principals pending further order of the Court. Thereafter, the Appellate Division, Second Department, vacated the temporary restraining order.
    Subsequently, plaintiff Data Treasury commenced this action against Del Col seeking damages
pursuant to Judiciary Law 8 487 for attorney misconduct."

"Judiciary Law $ 487 applies only to wrongful conduct by an attorney in an action that is actually
pending (Mahler v Campagna, 60 AD3d 1009,876 NYS2d 143 [2d Dept 20091; see Tawil v Wasser, 21 AD2d 948, 801 NYS2d 619 [2d Dept 20061). Deception of a court is not confined to the actual
appearance in court, but may include any statement, oral or written, made with regard to a  proceeding brought or to be brought therein and communicated to the court with intent to deceive (Cinao v Rem, 27 Misc3d 195, 893 NYS2d 851 [Sup Ct Kings County 2010). A violation of Judiciary Law 487 permits the imposition of treble damages for certain attorney misconduct. Such violation may be established by either the defendant’s deceit or by a chronic, extreme pattern of legal delinquency by the defendant (Cinao v Reers, supra). When a party commences an action grounded in a material misrepresentation of fact, the opposing party is obligated to defend or default and necessarily incurs legal expenses. As such, the party’s legal expenses in defending the lawsuit may be treated as the proximate result of the misrepresentation (Amalfitano v Rosenberg, 12 NY3d 8, 874 NYS2d 868 [2009]). An attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive - the court or any party, is guilty of a misdemeanor and is liable for treble damages to the party injured (Amalfitano v Rosenberg, supra). The elements of a deceit claim are essentially the same elements that constitute a cause of action for fraud, namely representation, falsity, scienter, deception and injury (Morris v. Rochdale Village, Inc., 201 1 NY Slip Op 33315U [Sup Ct Queens County 2011).   CPLR 6301 provides that a temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had. Unlike a preliminary injunction,  where an undertaking is mandated by statute (CPLR 6212[b]), the posting of an undertaking prior to issuance of a TRO is discretionary with the court (CPLR 63 13 [c]) (see Napoleon Art & Production, Inc. and Code Films, Inc. v Laughlin, 14 Misc3d 1226A, 836 NYS2d 494 [Sup. Ct. New York County 20071). The granting of a TRO in an order to show cause without notice to the opposing party deprives the  party of the opportunity to argue that an undertaking is warranted, neutralizing the defendant at the discretionary phase (Napoleon Art & Production, Inc. and Code Films, Inc. v Laughlin, supra).

We're still looking at Wortman v. Cheng today.

Although at oral argument, plaintiff's principal stated he was not challenging the contingency fee agreement the law firm is, in fact, doing just that. Wortman states in his February 17, 2012 affidavit that "I am entitled to the quantum meruit  value of my services In the Cheng v. Cartelli case. Chang has unreasonably refused to settle the Cartelli case for the maximum limits of Cartelli's policy of $500,000 despite her representations that she would accept such amount once offered, despite 4 offers to settle at $500,000 ...”    

Elsewhere plaintiff states that Wortman relied on these misrepresentations in agreeing to represent her in three cases. Thus the law firm contends that it is entitled to its fees based upon quasi contractual principles because it was induced and defrauded into signing the flat free retainer with Chang, The law firm contends that had it known Chang had no intention of settling the Cartelli case immediately or ever, it would not have taken the other matters on would have made a different agreement with Chang her In connection with the Citidress and Golden City matters. Phrased differently, anticipating an effortless recovery of a 20% contingency fee in the malpractice action, Wortman agreed to take the foreclosure cases on for a modest fee. These arguments blur the distinctions between plaintiffs 2d COA for quantum meruit and its 3d COA for fraud.

Regardless of which factual claims are true, Wortman has no claim against Chang for legal fees in the Cartelli action, other than for the 20% contingency fee of the amount - if any- Chang eventually recovers on the judgment entered against the Cartelli estate. By its very nature a contingency fee is “contingent” on a successful result. Although Chang prevailed in the Cartelli action, and the $8,708,490 judgment was affirmed on appeal, it is unclear whether she will ever recover any part of that judgment. This uncertainty is the subject of Chang’s malpractice counterclaim against the law firm. Since Chang and the law firm entered Into a retainer agreement for a contingency fee, Wortman cannot assert a valid claim against his client for quantum meruit in the Cartelli action. Georgia Malone & Co., Inc. v. Ralph Rieder, 86 A .D.3d 406,410 [lst Dept 201 11).

The existence of a valid and enforceable written contract governing the disputed subject matter precludes the law firm from recovering in quantum meruit (Sheiffer v. Shenkman Capital Management, supra).

The law firm contends it was defrauded by Chang because Chang lied to Wotman about her eagerness and willhgness to settle the Cartelli case for $500,000. This claim presents complicated issues about an attorney's fiduciary duties to his or her client and the nature of retainer agreements.

The unique relationship between an attorney and his or her client is based upon "the elements of trust and confidence on the part of the, client and of undivided loyalty  and devotion on the part of the attorney ..." Demov, Morris. Levin & Shein v. Glantz. 53 N.Y.2d 553 [1981]). An attorney has a fiduciary duty to his or her client and this duty transcends those prevailing in the commercial market place (Ulico Cas. Go. v. Wilson, Elser. Moskowitz , Edelman & Dicker, 56 A.D.3d 1,8 [1st "Dept 2008]  internal citations  omitted). It is well established law that an agreement between an attorney and his or her is subject to close scrutiny and in the event of any ambiguity, it must be construed in a manner most favorable to the client [Shaw v., Manufacturers Hanover Trust Co,, 68 N.Y.2d 172 [1986]).
 

A "deliberate misrepresentation of present intent made for the purpose of inducing another to enter a contract will normally constitute actionable fraud if there is a reliance by the party to whom the misrepresentation was made" (Demov. Morris. Levine & Shein v, Glantz, 53 N.Y.2d at 557). Where, however, it is a client who made a misrepresentation to an attorney to induce him to take the case, that misrepresentation, even if deliberate, will not, as a matter of public policy, support a fraud cause of action against the client   [Demov, Morris. Levin & Shein v. Glantz  supra].

Applying the legal principles of Damov, plaintiffs claim fails because he has not established a material element of his fraud claim: reliance. Although in the client discharged the attorneys after she had promised them they would be substitute in as counsel on another, more financially lucrative matter, the underlying type of promise in this case is  indistinguishable. Wortman's fraud claim is based on his expectation of fees which have not materialized. Therefore, plaintiff cannot, as a matter of public policy assert a fraud claim against Chang, its client. Even were the court to decide that the firm's claim is valid, plaintiffs claims skirt dangerously close to the prohibitions set forth in DR 5-101 [1200.20] pertaining to conflicts of interest and a lawyer's own interests. An attorney must deal fairly, honestly with his or her client and with undivided loyalty, avoiding conflicts of interest, operating competently, safeguarding his or her client's property and honoring the client's interests over the lawyer's own interests ( Matter of Cooperman, 83 N.Y.2d 465 [1994]

In Wortman v. Cheng,  which we started to write about last week Justice Gische lays out a primer of the various attorney fee claims, and how they interrelate with legal malpractice.

"The elements of a claim for quantum r meruit am:( It)he performance of services in good faith; (2) the acceptance of services by the person to whom they are rendered; (3) an expectation of compensation; and (4) the reasonable value of the services (Georgia Malone & Go.. Inc, v, Ralph Rjeder (86 A.D.3d 406,410 [1st Dept,  2011])   The existence of a valid and enforceable written contract governing the disputed subject matter precludes plaintiffs from recovering in quantum meruit (Shelffer v. Shenkman Capital Management. Inc,, 291 A.D.2d 295 [1st Dept,  2002).

In connection with this particular cause of action, Wortman makes no claim that the March 22, 2001 flat fee retainer is invalid or should be invalidated. It is unrefuted that the contract obligates Chang "to pay for our services on the basis of a flat fee of $15,000" payable in 3 installments. It is unrefuted that she did, in fact, pay that fee, It is also unrefuted that Kenneth Cahill, the person who intended to open a restaurant at the building, paid a part of the fee, although not a signatory to that retainer. The flat fee retainer states that it is "in connection with your transactions for the establishment of a restaurant at [207 Second Avenue] ..." referencing an agreement between Chang and Cahill. The retainer also states that the firm has "agreed to represent Janet Chang and
Kevin Cahill in connection with the following . . ." The $15,000 is not identified as a "retainer or
specify that Chang would thereafter be billed on an hourly basis. There is no provision
for the law firm to charge for its disbursements.

There are different types of billing arrangements that an attorney and client agree to, depending on the type of legal services being rendered and the nature of the case. Chang and Wortman had a contingency arrangement for the malpractice action, but agreed that a "flat fee" would be charged for the foreclosure actions and to bring the Chang/Cahill restaurant agreement to fruition. In a flat fee arrangement, as the words suggest, all work is done for a set, agreed to amount. In setting the flat fee, it is expected that an attorney has evaluated the complexity of the work required and set his or her fee accordingly. If it turns out the work needed is less than anticipated, than the attorney may benefit from the arrangement in the sense that he or she recoups more than his or her customary hourly rate. On the other hand, If the work turns out to be more complex than anticipated, the attorney has no basis to collect more than the agreed to amount, unless the retainer so provides (compare: Manufacturers & Traders Trust Co v. Dougherty, 11 A.D.3d 1019 [4th Dept 2004]  although retainer indicated work would be done for a flat fee of $1,250, the mortgage allowed plaintiff to recover “all reasonable legal fees from defaulting defendant; Webbe v. Webbe,267 AD2d 784 [3rd Dept 1099] in divorce action, defendant’s attorney had a flat fee retainer of $2,500,. but was able to seek legal fees from plaintiff).

The flat fee retainer at bar contains no Imitations, conditions, caveats or an expiration date. The $15,000 is not identified as a retainer to be replenished. The only additional monies that the law firm could recover under the flat free retainer were for “any appeals.” Therefore, any argument by Wortman that the retainer agreement regarding the foreclosure matters really means anything other than what it expressly provides is without any factual or legal basis. There is no indication within the four corners of this retainer agreement that it was intended to expire or the parties anticipated to receive or make additional payment. Since there is no ambiguity in the retainer agreement, Wortman’s effort to create an ambiguity where none exists is unavailing (In re Koppel, 95 AD3d 453 (1st Dept, 2012) The issue of whether Wortman complied with the requirements of Part 1215 of Title 22 of the Official Compilations of Codes, Rules and Regulations of the State of New Yo& (22 NYCRR 1215”) has been addressed by the parties in connection with the parties’ arguments about whether the retainer expired. Since the flat fee retainer was signed before this rule became effective (March 4, 2002), 22 NYCRR 1215.2 does not apply to the flat fee retainer. Even if it did, noncompliance with the requirements of 22 NYCRR 1215.1 would not bar the law firm from recovering in quantum meruit under certain circumstances (Nabi v. Sells, 70 A.D.3d 252 [1st Dept 2009]

Chang has proved the flat fee retainer is valid, enforceable and unambiguous,thereby meeting her burden and shifting it to the plaintiff law firm to demonstrate the existence of a triable issue of fact (Alvaraz w, Prospect Hosp., 68 N.Y.2d 320, 324 [ 1986];  Zuckerman v, City of New York ,49 N.Y.2d 557 [1980]). The law firm has not met its burden of showing, as it claims, that the flat fee retainer agreement expired or that it is ambiguous, Therefore, Chang is entitled to summary judgment dismissing the quantum meruit cause of action in the complaint to the extent that the law firm's claims fall within the ambit of the work subject to the flat fee agreement and such work was performed before the firm was permitted to withdraw as counsel by Justice Heitler.

We'll finish this case on Tuesday

Legal Malpractice and Attorney Fees are coupled throughout the case law involving attorneys.  They generally arrive on the scene together, and resolution of one generally disposes of the other.  In Daniel R. Wotman & Assoc., PLLC v Chang  2012 NY Slip Op 31845(U)  July 9, 2012
Supreme Court, New York County  Docket Number: 110893/2010  Judge Judith J. Gische writes about many of the typical tropes:  attorneys trying to change the terms of flat fees into hourly rates, attorneys deciding that the client just isn't reasonable about settlement, clients not wanting to settle, clients getting bills and making a decision to pay a little, and cajole the attorney into doing something on appeal, attorneys leaving "biglaw" and trying to make it in the more modest legal world.

Plaintiff is a law firm named after its principal, Daniel R. Wotman, Esq. Chang  was a 50% shareholder in 207 Second Avenue Realty Corp. ("corporation"). The other shareholders (Ruby and Wilson Chang) held the remaining 50% interest. The corporation owned the building located at 207 Second Avenue, New York, New York. The law firm contends it is owed legal fees by Chang in the principal amount of $438,31 I .19 for legal services rendered in pursuit of three related cases involving Chang as follows: Citidress II Cora. v, 207 Second Avenue Realtv Carp, , Index
No.121848199 ("Citidress"), Gold Citv Commercial Bank v. 207 Second Avenue Corp, Index No. 104319 /93 ("Gold City") and Janet Chang, as assignee v. Botsacos, Index No. 2242/86.

Citidress and Gold City were each foreclosure actions. In Citidress, Chang brought a cross claim against her fellow shareholders (Wilson and Ruby Chang), alleging that they obtained a mortgage secured by the building without her knowledge. Chang subsequently bought the mortgage from Gold City, but was apparently never substituted as named plaintiff. In September 2007, Chang sold the building for $5,000,000 and Hon. Alice Schlessinger, the judge presiding over the Citidress case, dealt with various issues resolving that action. The Cartelli case is for legal malpractice.
Chang alleges that Thomas Cartelli, Esq. (now deceased), assisted the other shareholders in obtaining the mortgage through fraudulent means, including phony board minutes.

Chang, Individually and as Officer and Director of the corporation, entered into two (2) separate retainer agreements with the law firm.

Following B ten day trial on the Cartelli malpractice claim, at which Chang was represented by Wotman, on October IO, 2002, the jury returned a verdict in favor of Chang. The award consisted of $1,930,491 on the malpractice claim, $3,000,000 in punitive damages and $176,000 In legal fees. The jury found that Thomas Cartelli had been negligent and assisted the other shareholders (Wilson and Ruby Chang) in obtaining a mortgage without Janet Chang’s written consent, etc., and that Cartelli’s negligence had resulted in the diversion of the mortgage proceeds. Judgment was not immediately entered by Wotman In the Cartelli action.

A few months later, on June 13,2003, Cartelll’s malpractice insurance carder, The Home Insurance Company, was declared insolvent and The Superintendent of Insurance took possession of its property and assets (Supreme Court Index No. 402871-2003). Wortman did not enter judgment In the Cartelli malpractice action until several years later, on August 10, 2010. After serving the judgment on the Superintendent of Insurance, Wotman was notified (on August 19,2010) that the Liquidation Bureau had rejected the judgment on the basis that “it was not entered in accordance with applicable law.” The Cartelli judgment was appealed and affirmed on
appeal (Chang v. Botsacosa, 92 A.D.3d 610 [1st Dept 2012). No portion of the Cartelli judgment has been satisfied to date."

Meanwhile, in August 2004, Wotman moved to be relieved as counsel in the Citidress and Golden City motions, stating that Chang was "ignoring" his legal advice and pursuing that case and others "merely for the purpose of harassing and maliciously injuring other parties, including [the law firm]." Wotman also stated that mandatory withdrawal by his firm was necessary because "Chang and [the corporation] are out of control. Our law Firm cannot bring these clients under control ... They are not following our advice and instructions.. ." The motion was argued before Justice Heitlar on the record (Steno Minutes 10/6/04)2 and Chang stated that relieving Wotman would prejudice her case because he had taken it on a contingency basis "with a flat charge for some other matters
because he knew that I was not able to pay [legal fees] after many, many lawyers sort of like given up because I was not paying." Chang also stated that Wotman, who had recently left a "big law firm" was "[putting] quite a bit of pressure for me to give up the malpractice case, which is something that he did not have experience [with] ..." According to Chang, once Wotman was no longer with that "big firm," he started "[asking] me to give money to him, which I did not have. In fact, then he suggested that he should use the money in the receiver's account and I agreed to allow him to apply to the Judge to have the use of that money, which would be deducted against the final payment of the contingency fee and fortunately, Judge Lebedeff declined to allow him
use [of] that money."  Justice Heitler, noting that the retainers were not a part of the record, asked
whether Wotman was owed any legal fees. He responded that he was and that his retainer agreement had "expired a while ago-back In April of 2001, it was a limited fee retainer ..." The issue of whether there it was a conflict of interest for the corporation and Chang to have been jointly represented by Wotman was also raised during that oral argument. According to Wotman, that conflict had been "waived." Wotman's motion to be relieved was granted by Justice Heitler.

We'll continue with this attorney fee primer on Monday.

People start LLCs and other juridical entities in order to obtain a shield from personal liability.  Interests change over time which can cause difficulties later.  Brach v Levine    2012 NY Slip Op 51312(U)   Decided on July 16, 2012   Supreme Court, Kings County   Battaglia, J. is an example. 

Despite the shocking allegation that defendant " Levine allegedly altered the documents, and on November 15, 2006, the mortgage was recorded as against 420 Marcy Avenue, LLC, plaintiff 519 Marcy LLC, and Frankwink Properties, Inc., in addition to 222 Skillman, LLC, 189 Spencer LLC, and 401 Bedford LLC.  Levine allegedly altered the signature page by "adding wholly new parties to the agreement" we see that litigation against him is difficult.

"In their pre-answer motion to dismiss, defendants Michael J. Levine and D'Agostino, Levine, Landesman & Lederman, LLP contend that they are entitled to dismissal of the action as against them on the grounds that plaintiffs Mendel Brach, Moshe Roth, and 519 Marcy LLC either lack capacity to sue (see CPLR 3211[a][3]) or lack standing to bring the action. In addition, Defendants contend that the allegations in the Verified Complaint do not state a valid cause of action for fraud because, among other things, neither Mendel Brach nor Moshe Roth were party to any of the alleged transactions, and did not sustain any actual damages as a result of Defendants' alleged fraudulent conduct. (See CPLR 3211[a][7]"

"In Community Board 7 of the Borough of Manhattan v Schaffer (84 NY2d 148 [1994]), the Court of Appeals discussed the distinction between dismissal for lack of capacity, lack of standing, and for failure to state a cause of action.

"[T]he concept of capacity is often confused with the concept of standing, but the two legal doctrines are not interchangeable. Standing is an element of the larger question of justiciability'. The various tests that have been devised to determine standing are designed to ensure that the party seeking relief has a sufficiently cognizable stake in the outcome so as to cast the dispute in a form traditionally capable of judicial resolution. Often informed by considerations of public policy, the standing analysis is, at its foundation, aimed at advancing the judiciary's self-imposed policy of restraint, which precludes the issuance of advisory opinions.
Capacity,' in contrast, concerns a litigant's power to appear and bring its grievance before the court. The concept of a lack of capacity, which has also occasionally been intermingled with the analytically distinct concept of a failure to state a cause of action, does not admit of precise or comprehensive definition. Capacity, or the lack thereof, sometimes depends purely upon a litigant's status." (Id. at 154-55 [internal quotation marks, brackets, and citations omitted].)
In addressing these issues with respect to plaintiff 519 Marcy LLC, Defendants' contention is most easily resolved based upon lack of capacity to sue pursuant to CPLR 3211(a)(3). (See e.g. Security Pacific National Bank v Evans, 31 AD3d 278, 279 [1st Dept 2006] [an objection to "plaintiff's status [as a non-existent corporation] is properly understood as questioning legal capacity, not standing"].)

In this regard, Defendants contend that 519 Marcy LLC lacks legal capacity to sue because it was merged into 222 Skillman, LLC on February 11, 2003, and has been an inactive entity since 2003. It has been held that a business corporation that is merged with, and completely absorbed by, another corporation ceases to exist as an independent jural entity, and, therefore, lacks legal capacity to sue. (See Westside Federal Savings & Loan Association of New York City v Fitzgerald, 136 AD2d 699, 699 [2d Dept 1988]; see also e.g. Lance International, Inc. v First National City Bank, 86 AD3d 479, 480 [1st Dept 2011] [dissolved corporation lacks capacity to sue unless in the course of winding up its affairs]; cf. Security Pacific National Bank v Evans, 31 AD3d at 279.) "

""Generally corporations have an existence separate and distinct from that of their shareholders and an individual shareholder cannot secure a personal recovery for an alleged wrong done to a corporation. The fact that an individual closely affiliated with a corporation (for example a principal shareholder, or even a sole shareholder), is incidentally injured by an injury to the corporation does not confer on the injured individual standing to sue on the basis of either that indirect injury or the direct injury to the corporation". (New Castle Siding Co., Inc. v Wolfson, 97 AD2d 501, 502 [2d Dept 1983], aff'd 63 NY2d 782 [1984]; see also Baccash v Sayegh, 53 AD3d 636, 639 [2d Dept 2008] ["Although it is undisputed that the plaintiff is Bridal Coutrue's sole officer and shareholder, a corporation has a separate legal existence from its shareholders even where the corporation is wholly owned by a single individual"].) "[C]ourts are loathe to disregard the corporate form for the benefit of those who have chosen that form to conduct business". (Baccash v Sayegh, 53 AD3d at 639 [quoting Harris v Stony Clove Lake Acres, 202 AD2d 745, 747 (3d Dept 1994)].) [*5]

The caselaw cited above appears to consider the issue in terms of both "standing to sue" (New Castle Siding Co., Inc. v Wolfson, 97 AD2d at 502) and "having a cause of action" (id.) . However, in Matlinpatterson ATA Holdings LLC v Federal Express Corp. (87 AD3d 836 [1st Dept 2011], the court analyzed the "standing" issue as a "threshold matter" in the context of a motion for failure to state a cause of action pursuant to CPLR 3211(a)(7), and continued to consider whether any recognizable cause of action could be discerned from the complaint despite noting that the plaintiff may not have had "standing". (See id.) Similarly, in Baccash v Sayegh (53 AD3d 636), the court addressed the issue in terms of the plaintiff's failure to prove at trial the elements of a cognizable cause of action. (See id. at 639.) In this regard, the court found that the plaintiff, the sole shareholder and owner of a corporation, did not prove that she suffered any direct damages as result of the defendant's legal malpractice. (See id. at 640.)

In Sealy v Clifton, LLC (68 AD3d 846 [2d Dept 2009]), the Second Department held that an individual plaintiff, who owned a 50% interest in an limited liability company, did not have "legal capacity to sue" for partition of a property owned by a limited liability company of which he was member. (See id., at 847.) The court also noted that a member of a limited liability company "has no interest in specific property of the limited liability company". (See id.; see also Limited Liability Company Law § 601; see also e.g. Yonaty v Glauber, 40 AD3d 1193, 1195 [3d Dept 2007].) "

After all this, the individual plaintiff's complaint is dismissed.

In New York City condominiums are a rich source of litigation.  At the ownership level, one sees litigation over the buying and selling; at a personal injury level, one sees slips and falls.  In the construction of the buildings, negligence and indemnification between general contractors and subs is an ongoing field of law.  Here, in Flintlock Constr. Servs., LLC v Rubin, Fiorella &
Friedman LLP;   2012 NY Slip Op 31835(U)  July 9, 2012  Supreme Court, New York County
Docket Number: 109657/2011  judge: Saliann Scarpulla we see how the insurance carriers move their attorneys around in a never ending circle of litigation.

"As alleged in the complaint, FCS is a general contractor, and RFF is a law firm  which was designated by FCS’s insurer to represent FCS in a construction dispute.  CS states in the complaint that on or about March 30, 2004, FCS entered into a standard AIA form contract with owner Well-Come Holdings, LLC (“Well-Come”) (the contract”) for the construction of an 8-story condominium apartment project located at 06 Mott Street, in New York City (the “Mott Street project”). FCS alleges that pursuant o the contract, “FCS’s responsibilities were limited and its indemnification obligations ere limited to damages caused by its own conduct; it had not indemnity or other obligations with respect to the scope of work reserved for Well-Come, and . . . it had no obligations to indemnify Well-Come for Well-Come’s own negligence or that of Well- Come’s subcontractors or ~consultants.~F’C S also pleads that it was required to provide insurance to protect FCS and Well-Come from claims of property damage stemming from performance of the contract.

FCS alleges that during the early stages of construction at the Mott Street project in the summer of 2004, one or more ‘Occurrences”to took place which allegedly caused property damage to three adjacent property owners. These owners filed three separate lawsuits in Supreme Court, New York County, against Well-Come, FCS and some of Well-Come’s subcontractors and consultants (the “underlying litigation”). Well-Come was originally defended in the underlying litigation by Marine pursuant to its liability policy. FCS was defended by American Safety, which assigned the defense to RFF. FCS alleges that at various times from 2004 through 2009, RFF defended
multiple claims asserted by numerous parties against FCS at the request and direction of American Safety or American Safety Indemnity Company,’ and that RFF regularly reported to American Safety’s claims personnel about developments and strategies in the defense of the claims against FCS.

At some point, FCS and American Safety came to an agreement whereby FCS  would pay the cost of its defense in any given claim up to and including the amount of the self-insured retention under its American Safety policy. Upon exhaustion of the self insured retention for each claim, as alleged in the complaint, American Safety would pay for FCS’s defense.  FCS alleges in the complaint that although both American Safety and FCS are named as defendants in the declaratory judgment action, RFF entered an appearance and filed pleadings only on behalf of FCS. Further, FCS alleges that American Safety admitted in the declaratory judgment action that it issued both primary and excess coverage to FCS as required by the contract, but denied that Well-Come was an
“additional insured” under its policy or that it had any duty to defend or indemnify Well- Come as an additional insured under any insurance policy issued by American Safety to FCS.
 

Here, the underlying litigation is still pending, therefore Well-Come’s negligence remains an open question. And as RFF acknowledges in reply, before it can be determined whether FCS suffered damages caused by the execution of the stipulation of dismissal, it must first be determined whether Well-Come was negligent.Moreover, FCS has sufficiently pled the existence of actual damages. FCS states in the complaint that because of the stipulation of dismissal, it now faces a claim by Well- Come and its insurer for in excess of $100,000 in attorneys’ fees and expenses incurred in the defense of Well-Come in the underlying litigation. While FCS also alleges future,
speculative damages, the claims it already faces from Well-Come for attorneys’ fees are real and ascertainable, and sufficient to plead a cause of action for legal malpractice, established by FCS’s submission of correspondence from Well-Come’s counsel requesting payment in the amount of $100,395.98. Accordingly, the first and second causes of action of the complaint can not be dismissed."

It's pretty well accepted that a legal malpractice claim accrues on the date the mistake is made, but in . DURAN, -v-  MOODY, REDNISS MOODY LLP, EDWARD J. GREENFIELD, LAW OFFICE OF EDWARD J. GREENFIELD,  Defendants.  o. 11 Civ. 6155 (LTS)(JLC)  UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK   2012 U.S. Dist. LEXIS 97977 we see the elusive alternative theory of accrual.  That (once in a great while) alternative theory is that a cause of action acrues only when plaintiff suffers an injury which entitles her to relief. 
 

"Greenfield argues that Duran's claims are barred by New York's three-year statute of limitations for legal malpractice claims. See N.Y. C.P.L.R. § 214. According to Greenfield, the statute of limitations commenced with his termination in February 2007 — four years prior to the filing of the complaint. However, the statute of limitations for a malpractice claim accrues when the plaintiff suffers an injury that entitles her to relief. Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541 (1994); see also Kronos. Inc. v. AVX Corp., 81 N.Y.2d 90, 94 (1993). While the Complaint alleges that Greenfield had acted negligently as of February 2007, there is no indication that [*7] Greenfield's alleged negligence resulted in any legally cognizable injury prior to May 13, 2009, when the New York Supreme Court granted summary judgment as to most of Plaintiff's claims. Plaintiff's suit against Greenfield was therefore timely filed."

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]). "

Legal malpractice litigation is aimed at a large variety of events.  Damages are suffered by clients in two distinct areas.  One is where an underlying damage award is lost. Think auto accident which should have netted personal injury award is brought too late.

A second area of damages is unnecessary legal fees to remedy an attorneys mistake.  This variety is what we see in Board of Mgrs. of Bay Club v Borah, Goldstein, Schwartz, Altschuler & Nahins, P.C.   2012 NY Slip Op 05486   Decided on July 11, 2012   Appellate Division, Second Department.  Here is the AD decision: 
 

"To state a cause of action to recover damages for legal malpractice, a plaintiff must allege that the 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 (Leder v Spiegel, 9 NY3d 836, 837 [internal quotation marks omitted], cert denied sub nom. Spiegel v Rowland, 552 US 1257; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; McCoy v Feinman, 99 NY2d 295, 301-302; Gioeli v Vlachos, 89 AD3d 984; Dempster v Liotti, 86 AD3d 169, 176). "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 Gioeli v Vlachos, 89 AD3d 984; Snolis v Clare, 81 AD3d 923, 925; Cervini v Zanoni, 95 AD3d 919).

Here, accepting as true the facts alleged in the complaint and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Polonetsky v Better Homes Depot, 97 NY2d 46, 54; Guggenheimer v Ginzburg, 43 NY2d 268, 275; Peery v United Capital Corp., 84 AD3d 1201; Sokol v Leader, 74 AD3d 1180, 1180-1181; Reid v Gateway Sherman, Inc., 60 AD3d 836, 837; Roth v Goldman, 254 AD2d 405, 406), the complaint adequately stated a cause of action to recover damages for legal malpractice by alleging that during its representation of the plaintiff in an underlying lien foreclosure action, the defendant negligently filed an unverified notice of lien (see Real Property Law §§ 339-z, [*2]339-aa), and that such negligence proximately caused the plaintiff to incur increased legal expenses by having to defend the validity of the lien against challenges by the defendant in the underlying action (see VDR Realty Corp. v Mintz, 167 AD2d 986; Wolstencroft v Sassower, 124 AD2d 582, 582). Further, the fact that the plaintiff may ultimately prevail in the underlying action is not an intervening cause requiring dismissal of this action (see Fireman's Fund Ins. Co. v Farrell, 289 AD2d 286, 288; Home Ins. Co. v Liebman, Adolf & Charme, 257 AD2d 424; VDR Realty Corp. v Mintz, 167 AD2d 986; Wolstencroft v Sassower, 124 AD2d at 582; see also DePinto v Rosenthal & Curry, 237 AD2d 482, 482)".

Client was sued for legal fees and counterclaimed for legal malpractice.  As has happened many times before, a bankruptcy filing prior to the law suit deprives client of the capacity to sue the attorneys.  How does this happen?

In the Bankruptcy petition, one must schedule all potential claims that one reasonably knows of. This includes a potential, even if inchoate, cause of action against the attorney.  The Second Department explains in Potruch & Daab, LLC v Abraham   2012 NY Slip Op 05505
Decided on July 11, 2012   Appellate Division, Second Department :

"The Supreme Court properly granted the plaintiff's motion to dismiss the counterclaims to recover damages for, among other things, legal malpractice. The failure of a party to disclose a cause of action as an asset in a prior bankruptcy proceeding, which the party knew or should have known existed at the time of that proceeding, deprives him or her of "the legal capacity to sue subsequently on that cause of action" (Whelan v Longo, 23 AD3d 459, 460, affd 7 NY3d 821; see Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 195-196; Santori v Met Life, 11 AD3d 597, 599; 123 Cutting Co. v Topcove Assoc., 2 AD3d 606, 607).

Here, it is undisputed that the defendant did not disclose, in a bankruptcy petition that he filed in September 2007, the existence of the causes of action he now asserts as counterclaims. The plaintiff showed, prima facie, that at the time of the filing of that petition the defendant knew or should have known of the existence of those causes of action, and the defendant failed to raise a triable issue of fact in opposition to that prima facie showing (see Wright v Meyers & Spencer, LLP, 46 AD3d 805; Hansen v Madani, 263 AD2d 881, 883; see also Whelan v Longo, 23 AD3d at 460). Further, under the circumstances of this case, the fact that the defendant's bankruptcy petition was later dismissed does not change this result (see Nationwide Assocs., Inc. v Epstein, 24 AD3d 738, 739; see also Kunica v St. Jean Financial, Inc., 233 B.R. 46, 53-54). Moreover, although the defendant stated in his opposition to the plaintiff's motion that, in 2010, he filed a second bankruptcy petition in which he did disclose his malpractice cause of action, in support of that claim he submitted only a single page of the Schedule of Assets from that petition. He also submitted no evidence as to the ultimate disposition of the second bankruptcy petition. He therefore failed to raise a triable issue of fact as to whether he regained his capacity to assert his legal malpractice claims against the plaintiff by filing the second bankruptcy petition (see Nationwide Assoc., Inc. v Epstein, 24 AD3d at 739). "

Potential legal malpractice clients often wonder whether it is better to try to fix the problem or sue the attorney.  The answer to this question is the highest form of speculation.  Its far more difficult to predict the future events in litigation than to pick a winner from a 9 horse field.

David v Hack  2012 NY Slip Op 05479   Decided on July 10, 2012   Appellate Division, First Department  is an example.  Here, plaintiff filed for disability insurance payments, was denied, and then changed attorneys.  The second set of attorneys were partially successful.  They won the battle, and then lost the war. Their partial success doomed the later legal malpractice case. However, it is not the second attorneys who were the target.
 

"By written agreement dated April 28, 2009, plaintiff, a commodities trader with MBF Clearing Corporation, retained defendant Quadrino & Schwartz, P.C., on an hourly fee basis, "to represent him in connection with the filing of long term disability claims under two Guardian group policies." At that time, the "look back period" for determining an employee's "Insured Earnings," used to calculate the amount of benefits to which the employee was entitled, was one year from the date of disability. As of May 1, 2009, the look back period was increased to three years.

In support of his malpractice claim, plaintiff alleges that defendants, without his knowledge, submitted a claim form that incorrectly stated that the date of his disability was "4/9/09," which was the day he stopped trading, not the day he was determined to be disabled; the latter he alleges was May 13, 2009. Plaintiff contends that as a result of this error, Guardian applied the one-year look back period, which led to the denial of his claim on April 14, 2010, because his 2008 income tax return showed a loss. Although plaintiff, on a contingency fee basis, retained new counsel who successfully appealed the denial, he seeks to recover from defendants the additional costs, expenses and attorneys' fees he incurred in prosecuting that appeal.

Supreme Court correctly determined that issues of fact exist as to whether the release signed by plaintiff on March 31, 2010, in connection with the settlement of his fee dispute with defendants, was obtained in violation of the Rules of Professional Conduct (22 NYCRR § 1200.0), rule 1.8(h)(2)(see Swift v Ki Young Choe, 242 AD2d 188, 192 [1998]; see also Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]). However, the malpractice claim must nevertheless be dismissed because the evidentiary materials submitted by the parties conclusively establish that defendants breached no duty to plaintiff, and that no alleged damages were caused by any act of defendants (see O'Callaghan v Brunelle, 84 AD3d 581 [2011], lv [*2]denied 18 NY3d 804 [2012]; Between The Bread Realty Corp. v Salans Hertzfeld Heilbronn Christy & Viener, 290 AD2d 380, 381 [2002], lv denied 98 NY2d 603 [2002]).

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence relied on by the defendant must "conclusively establish[ ] a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]).
On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (id. at 87-88). However, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (Maas v Cornell Univ., 94 NY2d 87, 91 [1999]).

At the heart of plaintiff's malpractice claim is his assertion that defendants could have obtained the date of his disability from his treating physician, Dr. Schottenstein, at any time after May 13, 2009, but refused or neglected to do so. However, the record demonstrates that when plaintiff's new counsel argued in his June 14, 2010 appeal letter to Guardian that the claim turned on the date it was determined that plaintiff was disabled, not on the date he ceased trading, he relied on the "June 10, 2010 Medical Record of Dr. Douglas Schotte