A Tragedy, A Trial, A Transfer

Plaintiff's child fell from a window. The window was in a multiple dwelling and there was no window guard.  The building had no insurance, and the owner eventually took off.  Was there legal malpractice in Plaintiff's attorney failing to file a lis pendens or to seek pre-judgment attachment?

The short answer is no, which illustrates the "but for" (and the hardest) portion of legal malpractice.

In Noel v Feinberg  2014 NY Slip Op 32230(U)  August 15, 2014  Supreme Court, Kings County
Docket Number: 502465/12  Judge: David I. Schmidt discusses when pre-judgment attachment may be permitted, and when a lis pendens may be filed. 

"Plaintiff commenced this action seeking to recover damages for the alleged
malpractice committed by defendants in the Personal Injury Action. Therein, plaintiffs sought to recover damages for injuries sustained by the infant plaintiff on July 12, 1997 when
he fell out of a window that did not have proper and/or adequate window guards.

In support of the motion, defendants argue that their representation of plaintiffs in the Personal Injury Action did not fall below the applicable standard of care and that their alleged actions and/or inactions are not the proximate cause of plaintiffs alleged damages. More specifically, defendants argue that a pre-judgment attachment and lis pendens were not available in the Personal Injury Action. Defendants also contend that plaintiff fails to plead that but for defendants' conduct in not seeking these provisional remedies, they would have been able to enforce the judgment obtained, so that they fail to establish that the alleged malpractice was the proximate cause of their alleged damages. Further, defendants contend that plaintiffs action is premature in that he has yet to
sustain any actual or ascertainable damages, since he is free to pursue the true tortfeasor, Mr.
George. In this regard, defendants allege that pursuant to CPLR 211 (b ), there is a 20-year statue of limitations to enforce the judgment. Accordingly, this statue of limitations will not expire until at least March 7, 2020. In addition, plaintiff can still pursue a claim for fraudulent conveyance against Mr. Meisels, since pursuant to CPLR 208, the statue of limitations on that claim is three years after the infant plaintiffs birthday, or July 5, 2014. Finally, defendants argue that they exercised ordinary and reasonable care in representing plaintiff in the Personal Injury Action.

Defendants also explain that during the pre-trial phase of that action, they and the Weicholz Firm expressed concern to the court regarding the lack of liability insurance and insolvency of Mr. George at a pre-trial conference held on November 1, 1999, when they made an oral application to the court for an order of attachment. That application was denied, but Mr. George was ordered to provide an affidavit listing his assets. In his affidavit, dated December 13, 1999, Mr. George stated that he owned three properties valued at $4 76,000, although he held a combined equity of only $176,830.

Pursuant to CPLR 6201(3), the only provision that could be applicable to the facts now before the court:
"An order of attachment may be granted in any
action . . . where the plaintiff has demanded and would be
entitled, in whole or in part, or in the alternative, to a money
judgment against one or more defendants, when:
"[T]he defendant, with intent to defraud his creditors or
frustrate the enforcement of a judgment that might be rendered
in plaintiffs favor, has assigned, disposed of, encumbered or
secreted property, or removed it from the state or is about to do
any of these acts."
 (see generally Crescentini v Slate Hill Biomass Energy, LLC, 113 AD3d 806 [2014]; Corsi v Vroman, 37 AD3d 397 [2007]). '"Furthermore, the mere removal, assignment or other disposition of property is not grounds for attachment"' (Corsi, 37 AD3d at 397, quoting Computer Strategies v Commodore Bus. Machs., 105 AD2d 167, 173 [1984]; accord Mitchell v Fidelity Borrowing LLC, 34 AD3d 366, 366-367 [2006]).

CPLR 6501 provides, in relevant part, that"[ a] notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property."

"[B]ecause of 'the powerful impact that this device has on the
alienability of property,' together with 'the facility with which
it may be obtained,' the courts have applied a narrow
interpretation in reviewing whether an action is one affecting the
title to, or the possession, use or enjoyment of, real property."
(Shkolnik v Krutoy, 32 AD3d 536, 537 [2006], quoting 5303 Realty Corp. v 0 & Y Equity
Corp., 64 NY2d 313, 315-316, 321 [1984]).

Thus, it is well settled that "[a] notice of pendency is not available where a plaintiff claims no right, title or interest in the property itself' (Long Island City Sav. & Loan Assa. v Gottlieb, 90 AD2d 766 [ 1982], mod on other grounds 58 NY2d 931 [1983]; see also Khanal v Sheldon, 55 AD3d 684, 686 [2008], lv denied 12 NY3d 714 [2009] [notice ofpendency should be cancelled where plaintiff asserted only a claim for money, not a right, title, or interest in the property itself]). "

 

 

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