New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

With No Explanation, An Affirmance

Posted in Legal Malpractice Cases

Sometimes a court decision tells a story.  Sometimes, not.  Richmond Holdings, LLC v David S. Frankel, P.C. 2017 NY Slip Op 04160  Decided on May 24, 2017  Appellate Division, Second Department recites an important (if well understood) standard of legal malpractice, but leaves the reader clueless.  “To sustain a cause of action alleging legal malpractice, a plaintiff must prove 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 proximately caused the plaintiff to sustain actual and ascertainable damages (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50; Jorge v Hector Atilio Marichal, P.C., 140 AD3d 1020). Proximate cause in the context of legal malpractice means that the plaintiff would have succeeded on the merits of the underlying action or that the plaintiff would not have sustained actual and ascertainable damages but for the attorney’s negligence (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d at 50; Jorge v Hector Atilio Marichal, P.C., 140 AD3d 1020).

Here, in support of their motion for summary judgment dismissing the complaint, the defendants established their prima facie entitlement to judgment as a matter of law, as the evidence they submitted in support of the motion demonstrated that they did not breach their duty of care to the plaintiffs and, in any event, any alleged breach was not a proximate cause of the plaintiffs’ damages. In opposition, the plaintiffs failed to raise a triable issue of fact as to whether any alleged negligence by the defendants proximately caused the plaintiffs to sustain actual and ascertainable damages.”

 

Start With a Bad Foundation…

Posted in Legal Malpractice Cases

It may be just one townhouse on 18th Street, but the ramifications of a bad “underpinning” to a foundation go on and on.  In Bose v Think Constr. LLC  2017 NY Slip Op 30944(U)
May 4, 2017  Supreme Court, New York County Docket Number: 154628/2015  Judge Cynthia S. Kern (just yesterday elevated to the Appellate Division, First Department-congrats) discussed the commencement of the statute of limitations for “professionals” under CPLR 214(6).

“The relevant facts and procedural history of this case are as follows. In August 2009, the plaintiffs and defendant Think Construction LLC (“Think”) entered into a contract for Think, as the general contractor, to perform construction work at the plaintiffs’ townhouse located at 322 East 18’h Street, New York, New York (“plaintiffs’ property”) (hereinafter referred to as the “Project”). The plaintiffs also retained Nick Dine (“Dine”) and his firm Murphy and Dine, LLC (“MAD”) (hereinafter referred to as the “Dine Defendants”) to serve as the architect on the Project. Plaintiffs allege that the Dine Defendants needed “an architect of record” to sign-off on their work and hired defendant Meltzer/Costa & Associates, Architecture & Engineering, LLP (“Meltzer”). In or around July 2009, MAD retained Pennmax to perform certain structural engineering services on the Project. Demolition on the Project began in or around September 2009 during which time the Dine Defendants allegedly discovered issues with the existing conditions of the plaintiffs’ home thereby prompting the plaintiffs to expand the scope of the Project to a “full renovation.” As part of the revised scope of the Project, plaintiffs decided to lower the cellar floor requiring underpinning of the party wall between the plaintiffs’ property and the neighboring property located at 320 East 181 h Street, New York, New York which is owned by Brian Harris and Fukuko Yahagi-Harris (the “Harris neighbors”) (hereinafter referred to as the “Harris Home”). MAD allegedly retained the moving defendants to design the underpinning which plaintiffs allege was performed in error. The Project allegedly caused the Harris Home to sustain damages, including, inter alia, cracks in the facade. Thereafter, in or around March 2012, the Harris neighbors commenced an action against the plaintiffs in this action as well as Think (the “Harris lawsuit”). Think commenced a third-party action against Pennmax and other entities involved with the Project. Thereafter, the Harris neighbors amended their complaint to include such third-party defendants as direct defendants. In or around June 2013, Everest National Insurance Company (“Everest”), first-party insurer and subrogee of the Harris neighbors, commenced a lawsuit seeking to recover the funds it expended to settle the Harris neighbors’ insurance claim (the “Everest lawsuit”). Everest named plaintiffs and Think as defendants and later amended the lawsuit to include the third-party defendants. The Everest lawsuit was then consolidated with the Harris lawsuit in or around October 2013.”

“The court first turns to that portion of the moving defendants’ motion to dismiss plaintiff’s negligence/malpractice claim pursuant to CPLR § 321 l(a)(5) on the ground that it is time-barred. “A defendant who seeks dismissal of a complaint pursuant to CPLR § 321 l(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired.” Texeria v. BAB Nuclear Radiology, P.C., 43 A.D.3d 403, 405 (2d Dept 2007). Pursuant to CPLR § 214(6), “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based on contract or tort” must be commenced within three years. Malpractice is the “negligence of a professional toward a person for whom a service is rendered.” Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D2d 624 (I 51 Dept 1999). It is well-settled that structural engineers are professionals for the purposes of CPLR § 214(6), see Travelers lndem. Co. v. Zeff Design, 60 A.D.3d 453 (1st Dept 2009), and that “a claim for professional malpractice against an engineer … accrues upon the completion of performance under the contract and the consequent termination of the parties’ professional relationship,” Town of Wawarsing v. Camp, Dresser & McKee, Inc., 49 A.D.3d 1100, 1101-02 (3d Dept 2008). Here, this court finds that the moving defendants’ motion to dismiss plaintiffs’ negligence/malpractice claim is denied on the ground that the moving defendants have failed to establish, prima facie, that such claim is time-barred. In support of their motion, the moving defendants provide the affirmation of their counsel in which he conclusorily affirms that the moving defendants completed their services on the Project by October 2010, before the underpinning work began on the Project. However, such affirmation is insufficient to establish,primafacie, that plaintiffs’ negligence/malpractice claim is time-barred, without some other admissible evidence in support thereof. See Banks v. Auerbach, 56 A.D.2d 819, 819 (!”Dept J 977)(denying defendant’s motion to dismiss on the basis of statute o limitations on the ground that “[t]he factual basis for defendant’s motion rests entirely on an affirmation of an attorney who [does not have] personal knowledge of the facts …. “) The moving defendants have failed to provide any admissible evidence, such as an affidavit or testimony of someone with personal knowledge, of when the moving defendants actually completed their services on the Project. The moving defendants have provided the affidavit of defendant Pensiero but nowhere in his affidavit does Pensiero affirm that the moving defendants completed their services on a specific date nor does he even discuss the completion of services on the Project. Rather, Pensiero merely affirms that the work performed by the moving defendants was rendered “as outlined in the proposal/contract.” However, an examination of such proposal/contract does not specify a time frame for completion of the work on the Project. Moreover, plaintiffs provide their affidavit in which they affirm that the moving defendants were still performing their services on the Project as late as August 2012 when they performed a site visit to the Project and prepared a report in accordance with the proposal/contract.”

A Huge Tax Deduction Loss and Third-Party Claims

Posted in Uncategorized

Really, the numbers boggle.  Clients collectively lost a $3 Million tax deduction when one of the trustees, without telling anyone else, waived the claim.  A professional malpractice claim followed in 1993 Trust of Joan Cohen v Baum    2017 NY Slip Op 30894(U)  May 2, 2017  Supreme Court, New York County  Docket Number: 150058/2015  Judge: Shirley Werner Kornreich .  Can the defendants seek to push liability onto attorneys?  Not in this case.

“On January 5, 2015, the plaintiffs in the main action, the 1993 Trust of Joan Cohen and the 1993 Trust of Ellen Hakim (collectively, the Trusts), filed a complaint against Baum and his employer, ABA, in which the principal allegation is that Baum, a former2 trustee of the Trusts who provided the Trusts with tax and accounting services, engaged in the ultra vires act of signing, on behalf of each of the Trusts, an IRS Form 870-PT (the Waivers) (Dkt. 63 & 64), which foreclosed the Trust’s ability to contest a particular tax matter with the IRS. To explain, the Trusts are members of Langham, a Delaware LLC that owns a building located at 135 Central Park West. As members of an LLC, the Trusts pay taxes on a pass-through basis. In October 2011, the IRS determined that a May 2005 charitable tax deduction taken by Langham’s members was improper. The deduction related to Langham’s non-cash $86 million charitable contribution of a conservation easement to the National Architectural Trust, which was based on the value of the building’s fa<;:ade being preserved. The Trusts’ respective pro rata deductions were $5,848,000. Langham’s members would go on to challenge the IRS’s position regarding the propriety of their charitable deduction, and in the end, settled for about half of the deduction, without the imposition o_f penalties or interest. In other words, if the Trusts participated in the settlement, they would have been able to maintain a deduction of $2,924,000. ”

“The Trusts, however, were not permitted to participate in the settlement because Baum waived their right to do so by signing the Waivers. The principle issue in the main action is whether Baum had the authority to do so. Baum was one of three trustees. Joan Cohen and Ellen Hakim were the other trustees. It is undisputed that under section 5 of the agreements governing Baum ‘s role as co-trustee, Trust Agreements dated as of February 4, ·1993, Baum lacked the unilateral authority to sign the Waivers; agreement by a majority of the trustees was required. See Dkt. 33 at 13 & Dkt. 34 at 13. It also is undisputed that he signed the Waivers without obtaining such majority consent. Baum, who always prepared and signed the tax returns, did not even notify the other trustees of the IRS’s deficiency notices or that he had received the Waivers, let alone that he intended to sign them.”

“On July 21, 2016, the Baum Parties filed the TPC, which contains two causes of action. See Dkt. 141. The first is a claim that Manocherian, the “Tax Matters Partners of Langham”, 3 breached sundry duties to the Trusts. For instance, Baum complains that Manocherian failed to disclose the IRS ‘s audit of Langham. As explained below, a detailed merits analysis of Manocherian’ s alleged wrongdoing is unwarranted because, even assuming the claims made against him are well pleaded, the Baum Parties lack standing to maintain such claims. Simply put, as a former trustee, Baum has no right to prosecute these derivative claims on behalf of the Trusts. ”

“The Baum Parties’ claims against Manocherian are derivative. They are all based on Manocherian’s duties to Langham as its “Tax Matters Partner”. While the precise meaning of “Tax Matters Partner” is somewhat unclear, there is no dispute (and the court assumes for the purpose of this motion) that Manocherian had contractual and fiduciary duties to Langham and the Trusts with respect to the tax matters he handled on their behalf. A successful claim for breach of such duties would result in recovery going to Langham or the Trusts. Baum, to be clear, was not a beneficiary, and thus a loss suffered by the Trusts is not a loss that affects Baum. Baum, personally, could not recover from Manocherian . “

The Successor Counsel Principle, Illustrated

Posted in Legal Malpractice Cases

Common to legal malpractice litigations are changes to attorney representation during the underlying case.  These changes of attorneys raise not only the statute of limitations, but also the successor counsel principle.  Hufstader v Friedman & Molinsek, P.C. 2017 NY Slip Op 03996
Decided on May 18, 2017 Appellate Division, Third Department is an excellent example.

“In December 2005, plaintiff retained defendants to represent her in an action for divorce. On October 1, 2007, on the first day of trial in the divorce action, plaintiff’s husband moved to dismiss the complaint for failure to establish grounds for divorce, and Supreme Court (Seibert, J.) granted the motion and dismissed the complaint. In September 2010, plaintiff commenced an action against defendants for, as pertinent here, legal malpractice and breach of contract related to the divorceaction. Defendants moved for summary judgment dismissing the complaint, which Supreme Court (Crowell, J.) granted on the grounds that plaintiff failed to establish proximate cause as to her legal malpractice cause of action and that the breach of contract cause of action was duplicative of the malpractice claim [FN1]. Plaintiff appeals.

To succeed upon the legal malpractice claim, plaintiff was required to demonstrate that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,” that this failure was the proximate cause of actual damages to plaintiff, and that “the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Levine v Horton, 127 AD3d 1395, 1397 [2015] [internal quotation marks and citations omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Miazga v Assaf, 136 AD3d 1131, 1133 [2016], lv dismissed 27 NY3d 1078 [2016]). Upon their application for summary judgment, defendants “were required to present evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements” (Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391 [2010] [internal quotation marks and citation omitted]; see Miazga v Assaf, 136 AD3d at 1133-1134).

Plaintiff’s primary contention is that defendants’ alleged mistakes resulted in the dismissal of the underlying divorce action, and thus compelled her to subsequently enter into a separation agreement with her husband. One of the arguments raised by defendants in opposition is that the circumstances of plaintiff’s execution of the separation agreement, while represented by successor counsel, establish that defendants cannot be the proximate cause of plaintiff’s alleged damages. Generally, the settlement of an underlying action will not preclude a claim for legal malpractice (see Schrowang v Biscone, 128 AD3d 1162, 1164 [2015]; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641 [2008]; Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377 [2007]). However, the element of proximate cause cannot be established where a plaintiff has entered into a settlement while represented by successor counsel and the “successor counsel had sufficient time and opportunity to adequately protect [the] plaintiff’s rights” in the underlying action (Somma v Dansker & Aspromonte Associates, 44 AD3d at 377; see New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1349 [2015]; Alden v Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz [“The People’s Lawyer”], 91 AD3d 1311, 1311 [2012]; Katz v Herzfeld & Rubin, P.C., 48 AD3d at 641).”

“Accordingly, Supreme Court properly granted defendants’ motion for summary judgment dismissing this cause of action (see Miazga v Assaf, 136 AD3d at 1134-1135).”

How Egregious Must The Act Be?

Posted in Legal Malpractice Cases, Uncategorized

Judiciary Law § 487 is a harsh, almost medieval law, with treble damages and a potential criminal conviction lurking.  The Appellate Division has said that it is not lightly granted, and in Brookwood Cos., Inc. v Alston & Bird LLP  2017 NY Slip Op 00535 [146 AD3d 662]  January 26, 2017  Appellate Division, First Department looks at a claim of churning for large fees.  The conduct has to be rather bad.  How bad (or egregious)?

“In support of its Judiciary Law § 487 (1) claim, Brookwood alleges that A&B was deceitful by inducing Brookwood to retain it as its litigation counsel. Brookwood claims such deceit was perpetuated a number of ways. One way was by A&B failing to disclose that the Nextec-related patent noninfringement opinions A&B had prepared could not be used in the patent action to defend Brookwood against claims that it had acted willfully. Brookwood maintains that the reason A&B did not use them was that it would have resulted in the waiver of the attorney-client privilege. Brookwood also claims that the reason A&B litigated the patent action in the manner it did was to ensure that the case would continue, essentially “churning” the case for A&B’s own pecuniary gain. The motion court properly dismissed the Judiciary Law § 487 claim because there are insufficient facts from which to conclude that A&B intentionally deceived Brookwood, or that A&B otherwise acted so egregiously that Judiciary Law § 487 was violated (Agostini v Sobol, 304 AD2d 395, 396 [1st Dept 2003]; Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12 NY3d 715 [2009]). Brookwood’s arguments that A&B could not use its noninfringement opinions in the patent litigation because it would have waived the attorney-client privilege is incorrect as a matter of law. In re Seagate Tech., LLC (497 F3d 1360, 1374 [Fed Cir 2007], cert denied 552 US 1230 [2008])[FN3] held that the assertion of an advice of counsel defense in a patent infringement action does not automatically constitute a waiver of the attorney-client privilege. We recognize that the opinion of counsel “may be relevant to the issue of willful infringement, for timely consultation with counsel may be evidence that an infringer did not engage in objectively reckless behavior” (Aspex Eyewear Inc. v Clariti Eyewear, Inc., 605 F3d 1305, 1313 [Fed Cir 2010]). Even if the issue of attorney-client [*5]waiver was open to dispute, it had no bearing in the patent action because willfulness was never reached. Thus, the facts alleged do not support a finding of an intent to deceive or a chronic and extreme pattern of legal delinquency causing damages to Brookwood (Wailes v Tel Networks USA, LLC, 116 AD3d 625, 625-626 [1st Dept 2014]).”

 

Claim of Attorney Mistake is Utterly Refuted

Posted in Legal Malpractice Cases

Did the defendants wait too long to seek attorney fees as prevailing parties?  If they did wait too long, it could be malpractice.  In Smith, Gambrell & Russell, LLP v Telecommunication Sys., Inc.  2017 NY Slip Op 30951(U)  May 5, 2017  Supreme Court, New York County  Docket Number: 653476/2016  Judge: Anil C. Singh sits (in effect) as an Appellate Court and renders judgment on whether the attorneys waited too long.

“Plaintiff law firm Smith, Gambrell & Russell, LLP (“plaintiff’ or “SGR”) moves pursuant to CPLR 321 l(a)(l) and (7) to dismiss defendant Telecommunications Systems, Inc.’ s (“defendant” or “TCS”) counterclaim alleging legal malpractice, ·· contending that it did not miss a statutory 14-day deadline under Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure for filing a motion for attorneys’ fees as the deadline was tolled while post-judgment motions were pending in the underlying federal matter. Defendant opposes the motion. ”

“TCS contends that SGR sought fees based on a sanctions argument not because of difficulties in establishing TCS as the “prevailing party” – the judgment expressly held that TCS was the prevailing party- but because SGR had missed the deadline for an attorneys’ fee application set by Rule 54(d)(2)(B). Neither TCS nor SGR states whether the Court ever decided the motion for sanctions. SGR points out that, after the motion for sanctions was filed, Cassidian and TCS settled their dispute, and all pending actions and appeals were withdrawn by the parties on December 18, 2015 (SGR’s Memorandum of Law dated Nov. 11, 2016, p. 7). The counterclaim asserts a single cause of action for legal malpractice alleging that by failing to file a timely motion for attorneys’ fees, SGR breached its duty of care (Counterclaim, p. 20, para. 96). TCS seeks damages in the sum of $3.4 million. ”

“There are numerous federal cases holding that a motion for attorneys’ fees is timely under Rule 54(d)(2)(B) when filed within 14 days after the entry of judgment, or within 14 days of the resolution of post-judgment motions. For example, in Sorenson v. Wolfson, 170 F.Supp.3d 622 (S.D.N.Y. 2016), the Court held that a postjudgment motion revives the time to seek legal fees regardless of whether or not an initial application was made during the 14-day period following entry of the original judgment (id. at 628). Other federal district and circuit courts have reached the same conclusion (see, for example, SAS Inst .. Inc. v. World Programming Ltd., 2016 WL 3920203, at *3 (E.D.N.C. July 15, 2016) (“After disposition of defendant’s [post~judgment motions], the filing period for attorney’s fees began anew.”); Waltrous v. Bomer, 995 F.Supp.2d 84, 88 (D. Conn. 2014) (“[A] party’s motion for attorney’s fees is timely, unless filed outside the fourteen-day window following the court’s last ruling on any pending [post-judgment] motions.”); Drumgold v. Callahan, 806 F.Supp.2d428, 435 (D. Mass. 2011) (“The overarching rule is that a motion for attorneys’ fees ‘is timely filed if filed no later than 14 days after the resolution of [post-trial motions].”‘) (citing Weyant v. Okst, 198 F .3d 311, 315 (2d Cir. 1999); Chirco v. Charter Oak Homes. Inc., 2008 WL 1743343, at *8 (E.D. Mich. Apr. 11, 2008) (“Where a post-judgment motion has been filed, the time limit shall begin to run upon the denial of the motion.”); Bio-Med. Applications of Tex., Inc. v. BAP-FMC San Antonio, Ltd., 2006 WL 2728915, at *1 (W.D. Tex. July 7, 2006) (“Plaintiffs motion for attorney’s fees was filed within fourteen days of the order disposing of plaintiffs [post-judgment motion]  The motion is therefore timely.”) It is noteworthy that in four of the above cases, the prevailing party filed a motion for attorneys’ fees after the initial 14-day deadline expired. Likewise, we note that TCS has not cited a case setting forth an inflexible – and arguably irrational – holding that a motion for attorneys’ fees should have been filed within 14 days of the initial entry of judgment even where post-judgment motions were filed .”

“The documentary evidence shows unambiguously that post-judgment motions were filed in the Cassidian matter; the Court issued its final ruling on the postjudgment motions on April 20, 2015; and on May 4, 2015, SGR made a timely motion to recover legal fees as a sanction (Rosenthal Aff., exhibits C, D, E, F). The Court finds that the documentary evidence utterly refutes the allegation that SGR failed to make a timely motion for attorneys’ fees. The counterclaim fails to state a cause of action for malpractice predicated on the missed deadline. Accordingly, it is ORDERED that the motion is granted, and the counterclaim is dismissed pursuant to CPLR 321 l(a)(l) and (7) without leave to replead. ”

 

Only Some Documents Count

Posted in Legal Malpractice Cases

Was there an attorney-client relationship or not?  That will be the central issue in Prott v Lewin & Baglio, LLP  2017 NY Slip Op 03786  Decided on May 10, 2017  Appellate Division, Second Department.  Defendants sought to prove at the pre-answer stage that the relationship had ended.  The documentary proof was incompetent for purposes of CPLR 3211(a)(1).

“The plaintiff commenced this action against the defendants, inter alia, to recover damages for legal malpractice. The plaintiff alleged that, although he retained the defendants to prosecute an action on his behalf, the defendants failed to commence the action before the expiration of the applicable statute of limitations in December 2012. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, and the Supreme Court denied the motion.

“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” (Mawere v Landau, 130 AD3d 986, 987 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). The evidence submitted in support of such motion must be ” documentary'” or the motion must be denied (Fontanetta v John Doe 1, 73 AD3d 78, 84, quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, at 22; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714). In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be “unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]). “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” (25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850, 851; see Attias v Costiera, 120 AD3d 1281, 1283; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Granada [*2]Condominium III Assn. v Palomino, 78 AD3d at 997; Fontanetta v John Doe 1, 73 AD3d at 86).

Here, the evidence submitted by the defendants, which included a letter dated September 28, 2012, purporting to terminate the attorney-client relationship between the plaintiff and the defendants, did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) and, in any event, failed to utterly refute the plaintiff’s factual allegations, thereby failing to conclusively establish a defense as a matter of law (see Mawere v Landau, 130 AD3d at 990; Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792; 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d at 851; Louzoun v Kroll Moss & Kroll, LLP, 113 AD3d 600, 601-602). Therefore, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the legal malpractice cause of action.”

Does “The Plaintiff’s then husband” Explain This Case?

Posted in Uncategorized

It seems that when the husband was injured, the defendant law firm sued for both him and the wife (in loss of consortium).  Years later it was said that the plaintiff signed a release for her “loss of services” claim.  She denies settling her portion of the case.  What happened?  Were they now divorced and no longer allies?

Anderson v Dinkes & Schwitzer, P.C.  2017 NY Slip Op 03721  Decided on May 10, 2017
Appellate Division, Second Department is a win for the attorneys.

“In 2003, the plaintiff’s then husband, the defendant Yoni Anderson (hereinafter Yoni), retained the defendants Dinkes & Schwitzer, P.C. (hereinafter the Dinkes firm), William Schwitzer, and Michael Kimmelman to represent him in filing a personal injury action (hereinafter the prior action), in which a claim for loss of services was asserted on behalf of the plaintiff, allegedly without her knowledge. On June 10, 2009, following negotiations to settle the prior action, the plaintiff signed a document stating, inter alia, that she agreed to receive $200,000 from the settlement proceeds “as full and final compensation for her loss of services claim.” In February 2012, the plaintiff commenced the instant action against, among others, the Dinkes firm, Schwitzer, and Kimmelman, seeking, inter alia, to recover damages for legal malpractice and fraudulent concealment, based on the alleged failure to disclose her status as a plaintiff in the prior action and that she was accepting $200,000 in full settlement of her claim in that action. The plaintiff also asserted a cause of action alleging notarial misconduct against the defendant Alice Lin, a notary public who notarized documents including a general release that allegedly contained the plaintiff’s forged signature. Thereafter, the Dinkes firm, Schwitzer, and Lin (hereinafter collectively the Dinkes defendants) moved for summary judgment dismissing the complaint insofar as asserted [*2]against them, and the plaintiff cross-moved, among other things, to compel the Dinkes defendants and Kimmelman to appear for depositions. In an order dated February 3, 2015, the Supreme Court, inter alia, granted the Dinkes defendants’ motion for summary judgment and denied that branch of the plaintiff’s cross motion which was to compel depositions.

” A party is under an obligation to read a document before he or she signs it, and a party cannot generally avoid the effect of a [document] on the ground that he or she did not read it or know its contents'” (Fulton v Hankin & Mazel, PLLC, 132 AD3d 806, 808, quoting Martino v Kaschak, 208 AD2d 698, 698). Generally, a cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signer is illiterate, blind, or not a speaker of the language in which the document is written (see Ackerman v Ackerman, 120 AD3d 1279, 1280). Here, the Dinkes defendants established their prima facie entitlement to judgment as a matter of law dismissing the causes of action asserted against the Dinkes firm and Schwitzer by presenting evidence that the plaintiff could read and understand English, that she had the opportunity to read the document dated June 10, 2009, which expressly stated that she was accepting $200,000 “as full and final compensation for her loss of services claim,” and that she never expressed any difficulty understanding the terms of the document (see Matter of Augustine v BankUnited FSB, 75 AD3d 596, 597; Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 788). In opposition, the plaintiff failed to raise a triable issue of fact as to whether she was incapable of understanding the document signed by her based on her conclusory testimony that “[n]o one . . . explained [it] to me.””

A Mild Description of Some Vicious Litigation

Posted in Legal Malpractice Cases

Often, an appellate decision is phrased in mild, soothing language, masking the trench warfare taking place beneath the surface.  Polanco v Greenstein & Milbauer, LLP  2017 NY Slip Op 03707  Decided on May 9, 2017  Appellate Division, First Department is a prime example.  Note the level upon which defendants treated plaintiff’s expert.

Beyond the way the attorneys handled their roles in this legal malpractice case, note the lack of care these PI attorneys took to their client.  It seems that this was just another car case, and garnered very little thought or attention. It seems she had a herniated disc, but settled the case for only $ 20,000.

“On a prior appeal, this Court reversed the grant of defendant’s motion to dismiss, finding that the allegation “that defendant was negligent in urging her to settle the underlying personal injury action and in advising her that an MRI was not necessary and that its results would not lead to a more favorable outcome of her case,” supported a cause of action for legal malpractice (96 AD3d 438, 439 [1st Dept 2012]).

Defendant law firm failed to meet its prima facie burden on the instant motion for summary judgment (see Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010]). The firm’s legal expert did not address the stated basis for plaintiff’s legal malpractice claim, ignored her testimony as to the nature of pre-settlement discussions with her attorney, and misstated that attorney’s testimony. The firm’s radiologist’s opinion on causation, attributing plaintiff’s injuries to degenerative changes, was equivocal, inter alia, conceding that causation as to a herniation was “uncertain” and that certain changes seen on an MRI, taken over one year after the accident, could have been formed in a matter of “months.”

Even if the firm had met its initial burden on the motion, denial would be warranted based upon the existence of triable issues of fact raised by plaintiff. That plaintiff’s expert may have committed improper acts or malpractice bears on his credibility and not the admissibility of his testimony (see Williams v Halpern, 25 AD3d 467, 468 [1st Dept 2006]) and plaintiff’s surgeon’s attribution of her injuries to a different, plausible cause, creates a triable issue of fact on causation (see Linton v Nawaz, 62 AD3d 434, 439-440 [2009], affd 14 NY3d 821 [2010]; Norfleet v Deme Enter., Inc., 58 AD3d 499, 500 [1st Dept 2009]).

 

A Dead Client, a Dead Case

Posted in Legal Malpractice Cases

Estate cases sometimes run into the dead man’s statute, and even if not, there are unique difficulties in providing proofs of intent, which are sometimes very, very important.  In Steffan v Wilensky  
2017 NY Slip Op 03602  Decided on May 4, 2017  Appellate Division, First Department plaintiff can no longer prove that the bank account was a “convenience” and not a “joint” account.  Neither, says the Appellate Division, could the attorneys.

“In support of his legal malpractice claim, plaintiff failed to establish prima facie that his predecessor executor would have prevailed in a Surrogate’s Court proceeding against a bank but for defendant’s negligence in not bringing such a proceeding sooner (see LaRusso v Katz, 30 AD3d 240, 243 [1st Dept 2006]).

Banking Law § 675(b) states that the making of a deposit in the name of a depositor (in the instant action, the decedent, Anne McLaughlin Doris) and another person (Bridie McKiernan) “shall . . . be prima facie evidence . . . of the intention of both depositors . . . to create a joint tenancy and to vest title to such deposit . . . in such survivor.” As the evidence submitted with plaintiff’s opening motion papers (e.g., the transcript of defendant’s deposition) shows, the predecessor executor would have had difficulty adducing “clear and convincing evidence that the account was opened only as a matter of convenience” (Pinasco v Del Pilar Ara, 219 AD2d 540, 540 [1st Dept 1995]). His conversations with Doris, which tended to show that the account was a convenience account, could have been excluded pursuant to the Dead Man’s Statute (CPLR 4519), and he would have had to rely on defendant’s testimony about his telephone conversation with McKiernan, because McKiernan could not be located.

Because plaintiff failed to make a prima facie case, it is unnecessary to decide if defendant raised a triable issue of fact in opposition to plaintiff’s motion.

By his silence in his opposition brief, defendant concedes, as plaintiff argues, that the second, third, and sixth affirmative defenses should be dismissed.”

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