New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Jumping From Place To Place Can Be Dangerous

Posted in Legal Malpractice Cases

Plaintiff may have had a good claim against his accountants, maybe not.  The merits will not be reached because of an unusual choice of venues, and the method by which the case was first brought in NY County and then in Westchester County.  The choices caused a procedural catastrophy.

In EB Brands Holdings, Inc. v McGladrey, LLP  2017 NY Slip Op 06923 [154 AD3d 646] October 4, 2017 Appellate Division, Second Department ended the entire case on statute of limitations, when it had originally been timely brought.

“The plaintiff commenced this action to recover damages, inter alia, for professional malpractice against the defendant, an accounting firm that provided auditing services to the plaintiff from 2000 through 2011. Each year, the plaintiff and the defendant entered into an engagement agreement (hereinafter the engagement letter) pursuant to which the defendant performed auditing services for the plaintiff for that year. The last engagement letter between the parties, dated December 19, 2011 (hereinafter the 2011 engagement letter), provided, inter alia, that any claim arising out of services rendered pursuant to that agreement would have to be filed within two years after the issuance of the audit report by the defendant. On May 4, 2012, the defendant issued an audit report to the plaintiff for the year ending December 31, 2011, pursuant to the 2011 engagement letter.

The plaintiff has alleged, inter alia, that the defendant negligently performed the [*2]audits it was required to do pursuant to the engagement letters for the years 2009 through 2011; specifically, the plaintiff has alleged that the defendant overstated the plaintiff’s accounts receivable and inventory figures for several years, and failed to adequately verify those figures in light of the plaintiff’s agreements with purchasers of its products.

Prior to commencing this action in the Supreme Court, Westchester County, in 2013, the plaintiff brought an action against the defendant in the Supreme Court, New York County (hereinafter the New York County action) asserting similar contentions. An order dated August 14, 2014, in the New York County action granted the defendant’s motion for summary judgment dismissing that complaint, without prejudice, on the ground that the complaint failed to state a cause of action. The court granted the plaintiff leave to replead in that action.

Thereafter, rather than amending its complaint in the New York County action, on September 8, 2014, the plaintiff commenced this action in the Supreme Court, Westchester County. In a judgment entered January 26, 2015, the Supreme Court, New York County, dismissed the New York County action pursuant to the plaintiff’s voluntary discontinuance of that action without prejudice.

After the dismissal of the New York County action, the defendant moved pursuant to CPLR 3211 (a) for dismissal of the complaint in this action, in Westchester County, alleging, among other things, that the action is barred by the statute of limitations. The Supreme Court granted the defendant’s motion and dismissed the complaint. The plaintiff appeals.”

Pro-Se or Not Pro-se Can Make a Big Difference

Posted in Legal Malpractice Cases

DeMartino v Golden  2017 NY Slip Op 04253 [150 AD3d 1200]  May 31, 2017  Appellate Division, Second Department shows what happens when a case starts out pro-se, attorneys get substituted in and then everything goes wrong.  The summons and complaint were served with a corporation and limited liability company were plaintiffs but were unrepresented.  Defendant attorney was then brought in.  Things only got worse from there.

“The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted by the plaintiffs DeMartino Building Co., Inc., and 150 Centreville, LLC, and denied that branch of the plaintiffs’ cross motion which was to deem the summons and complaint to have been adopted by counsel they retained after the summons and complaint were filed and served. A corporation and limited liability company must be represented by an attorney and cannot proceed pro se (see CPLR 321 [a]; Boente v Peter C. Kurth Off. of Architecture & Planning, P.C., 113 AD3d 803 [2014]; Michael Reilly Design, Inc. v Houraney, 40 AD3d 592 [2007]). Here, DeMartino Building Co., Inc., and 150 Centreville, LLC, did not appear by an attorney when the summons and complaint were filed and served. Accordingly, the complaint, insofar as asserted by them, was a nullity, and the action as to them was improperly commenced (see Hilton Apothecary v State of New York, 89 NY2d 1024 [1997]; Boente v Peter C. Kurth Off. of Architecture & Planning, P.C., 113 AD3d 803 [2014]; Cinderella Holding Corp. v Calvert Ins. Co., 265 AD2d 444 [1999]).

The Supreme Court also properly granted that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted by the plaintiff Frank DeMartino. “Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity or near-privity for harm caused by professional negligence” (Fredriksen v Fredriksen, 30 AD3d 370, 372 [2006]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595 [2005]). Affording the complaint a liberal construction, accepting the facts alleged therein as true, and according DeMartino the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the complaint fails to plead specific facts from which it can be inferred that [*2]DeMartino was in an attorney-client or fiduciary relationship, privity, or a relationship that otherwise closely resembles privity with the defendants, who were retained to represent DeMartino Building Co., Inc., and 150 Centerville, LLC, in the underlying action. Accordingly, the court properly directed dismissal pursuant to CPLR 3211 (a) (7) of the causes of action alleging legal malpractice and breach of fiduciary duty insofar as asserted by DeMartino (see Fredriksen v Fredriksen, 30 AD3d at 371; Conti v Polizzotto, 243 AD2d 672, 673 [1997]).”

A Shocking Huge Marital Legal Malpractice Case

Posted in Legal Malpractice Cases

Roth v Rubinstein & Rubinstein LLP  2018 NY Slip Op 30038(U)  January 8, 2018  Supreme Court, New York County  Docket Number: 154855/16  Judge: Lynn R. Kotler is a story that Hitchcock could have filmed.  Husband and wife make a lot (really a lot) of money in business, and then after all that, the husband is accused of tricking the wife into giving away all of her portion of the marital estate, while he keeps his!

“Plaintiff alleges that the significant wealth that she and her husband accumulated during marriage
was marital property, subject to equitable distribution, in the event of divorce, pursuant to the Domestic Relations Law. In 2012, Mr. Roth allegedly decided “that he would ultimately leave the marriage,” and “sought out ways to effectively deprive [plaintiff] of … her share in their fortune” so that he could claim “in a divorce proceeding that there were virtually no assets subjects to [e]quitable [d]istribution”. Towards this end, Mr. Roth engaged the services of defendants “as counsel to him and [plaintiff]”. Mr. Roth allegedly did not consult with plaintiff about the retention of defendants, and plaintiff was not aware of defendants’ “loyalty to Mr. Roth at her expense”. “In December 2012, Mr. Roth told [plaintiff] that they needed to very quickly create a new estates tax plan because there was likely going to be a change in the law concerning estate taxes commencing in 2013″. ”

“The series of simultaneous transactions, implemented by defendants, involved: (1) creation of revocable trusts for plaintiff and Mr. Roth; (2) creation of irrevocable trusts for each of their two children; (3) transfer of all of the marital assets and all of plaintiff’s separate property into five family limited partnerships, in which plaintiff and Mr. Roth each had a 1 % general partner interest and a 4 7% limited partner interest, and each of their children’s trusts held a 2% limited partner interest; (4) transfer by plaintiff and Mr. Roth of their respective 47% limited partner interests into their respective revocable trusts; and (5) transfer by plaintiff and Mr. Roth of “their revocable trusts’ respective 47% limited partnership interests in each [family limited partnership] to the two children’s trusts in equal shares”. As a result, 98% of all marital property and 98% of plaintiff’s separate property were allegedly transferred “to the children’s trusts as interests in the [family limited partnerships], as opposed to interests in the underlying assets owned by the [family limited partnerships]”. 1 Unbeknownst to plaintiff, Mr. Roth did not subject his separate property to any of the aforementioned transfers, which deprived plaintiff of her rights to equitable distribution of marital property in the event of divorce. ”

“A deed for the conveyance of property in Water Mill, dated March 6, 2013, was prepared by the law
firm (see id., exhibit 5), and it was recorded on April 17, 2014 by the Suffolk County Clerk (see 01/16/17 Kenneth Rubinstein affirmation, exhibit 4). Defendants’ contention, that the recording of the deed did not affect the conveyance of the Water Mill property, is unavailing. The relevant inquiry, for the purposes of application of the doctrine of continuous representation, is whether defendants continued to perform the same or related services as those that are at the heart of this action (see Luk Lame/Jen U. Kupplungbau GmbH v Lerner, 166 AD2d at 506-507). Clearly, the recording of a deed for the transfer of the Water Mill property was at least a related service to the underlying task of plaintiff’s estate planning that defendants undoubtedly undertook (see December 7, 2012 retainer agreement at 3 (stating that defendants will prepare conveyance documents including deeds)]; cf Voutsas v Hochberg, 103 AD3d 445, 446 [1st Dept 2013] [“(t)he 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”]). Therefore, the court finds that the doctrine of continuous representation applies, and plaintiff’s cause of action for legal malpractice is not time barred.”

 

The Accountant Stays In, The Attorney is Out

Posted in Legal Malpractice Cases

In a law suit arising from divorce, Husband sues both a lawyer and an accountant.  Motions to dismiss result in a split decision.  Millman v Blatt & Dauman, LLP  2018 NY Slip Op 30016(U)
January 3, 2018  Supreme Court, New York County  Docket Number: 652002/15  Judge: Lynn R. Kotler  demonstrates how the professional’s roles differed.

“The following facts are alleged in the verified complaint. During all relevant times, plaintiff was engaged in a divorce from his wife, non-party Gladys Millman. Plaintiff claims that B&D provided negligent tax advice insofar as it wrongly advised both plaintiff and his wife that their taxes would be less if they filed their taxes for the year 2013 jointly. Plaintiff admits that B&D later corrected this advice, acknowledging that “a separate tax filing would achieve greater savings to plaintiff.” Plaintiff claims that Marvin, his lawyer in the underlying divorce proceeding, knew but failed to inform
him that B&D was giving tax advice to both him and his wife during the divorce proceedings, and
the resultant conflict of interest. Further, plaintiff claims that Marvin negligently negotiated a provision into the separation agreement between plaintiff and his wife requiring the parties to file joint tax return, “without protecting plaintiff’s interest by permitting the parties to revisit that issue depending on how their future estimated returns” (sic).”

“B&D’s motion must be denied. B&D has not met its burden on this motion by coming forward with
evidence that it failed to exercise the ordinary reasonable skill and knowledge commonly possessed by an accountant when it rendered incorrect advice in the January 24, 2014 email. Indeed, Ross’ affidavit is conclusory, insofar as it merely reiterates that the original incorrect advice was based upon incomplete information without explaining what that information was and demonstrating that an ordinary accountant would have rendered the same incorrect advice based upon said information using reasonable skills and knowledge. Therefore, B&D has failed to establish that it was not negligent as a matter of law.

Further, neither B&D nor Marvin have established that their alleged negligence was not a proximate
cause of plaintiff’s damages as a matter of law, to the extent they claim that plaintiff’s wife would
not have agreed to file separately. Plaintiff’s wife’s testimony on this point requires a credibility determination, which is not appropriate on a motion for summary judgment, since plaintiff vehemently disputes his wife’s claims and maintains that he would have filed separately but for the January 24, 2014 email. This disputed issue of fact also remains for trial.

B&D further has failed to come forward with evidence that plaintiff waived any conflict of interest
B&D had in jointly advising both plaintiff and his wife and/or whether said conflict was a proximate
cause of plaintiff’s damages.  As for Marvin’s motion, however, that motion must be granted. On a claim for legal malpractice, plaintiff must establish that Marvin “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and that but for Marvin’s negligence, plaintiff would have avoided damages” (Utica Gas. Co., supra [internal citations and quotations omitted]). Here, Marvin has demonstrated prima facie that he was not negligent and that even if he was negligent in failing to negotiate the separation agreement, this negligence was not a proximate cause of plaintiff’s economic damages. Indeed, plaintiff agreed to file his taxes jointly with his wife based upon B&D’s advice that it would be financially advantageous to him. Otherwise, to the extent that plaintiff claims that Marvin failed to negotiate a provision in the settlement agreement allowing the parties to revisit the tax filing status, plaintiff has failed to raise a triable issue of fact on this point that such an act was negligent, albeit even legally enforceable. Accordingly, Marvin’s motion is granted, and plaintiff’s claims and B&D’s crossclaims against him are hereby severed and dismissed.”

 

 

Voluntary Assumption of Attorney Duty and Legal Malpractice

Posted in Legal Malpractice Cases

The Appellate Division, First Department asks a question without an apparent answer:  Can an attorney be held liable of a voluntary assumption of a duty which is not reflected in a retainer agreement?  What happens if there is no actual retainer agreement?  For the moment there is no answer, but Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC
2018 NY Slip Op 00221  Decided on January 11, 2018 provides some illumination.

“At issue on this appeal is whether plaintiffs Genesis Merchant Partners, L.P. and Genesis Merchant Partners II, L.P. (collectively, Genesis) are entitled to summary judgment on liability in this legal malpractice action premised the failure of defendant Gilbride, Tusa, Last & Spellane, LLC, and defendant attorneys in that firm, Jonathan M. Wells, Kenneth M. Gammill, Jr., and Charles S. Tusa (collectively, Gilbride) to perfect security interests in life insurance policies. Because issues of fact exist, Supreme Court erred in granting Genesis summary judgment.”

“In May 2008, Genesis retained Gilbride to represent it in connection with the first of the loans, which Progressive repaid. Gilbride also represented Genesis in connection with three additional loans, issued on December 22, 2008, July 31, 2009, and February 3, 2011 (respectively, the second, third and fourth loans).

It is undisputed that Gilbride drafted the loan documents, including the Collateral Assignment of Contracts and the UCC-1 financing statements for each loan. Gilbride filed a UCC-1 financing statement on May 27, 2008, for the first loan, listing Progressive as the Debtor and Genesis as the Secured Party and broadly declaring a security interest in all of Progressive’s assets. The UCC-1 financing statements for the second, third and fourth loans, also filed by Gilbride, contained similar declarations. However, the UCC-1 financing statement for the fourth loan also listed, for the first time, the policy numbers of each insurer for seventeen life insurance policies pledged as additional collateral.”

“The crux of the factual dispute is whether Gilbride had a duty to perfect Genesis’s security interests in the collateral. Genesis alleges that Gilbride was retained to advise it on the loans, including drafting the loan documents and ensuring that Genesis’s security interests in the collateral were secured and perfected under applicable law. Gilbride maintains that it was retained only to draft the loan documents and that this limited representation was at the express instruction of Genesis.”

“Supreme Court granted Genesis summary judgment, rejecting Gilbride’s contention that perfecting the security interests was outside the scope of its representation. The court held — on a theory not raised by the parties in the briefing below — that even if Gilbride ultimately established that the scope of representation was limited at Genesis’s instructions, Gilbride “voluntarily assumed the obligation to perfect the security interests,” by filing the UCC-1 financing statements and billing Genesis for that work, and that Gilbride negligently discharged that duty. The court dismissed the counterclaims for unpaid attorneys’ fees, as Gilbride sought payment for the same work that constituted malpractice.”

“There is no engagement letter that defines the scope of Gilbride’s representation. Steven Sands, Senior Portfolio Manager of Genesis, states in an affidavit that “[Genesis] initially retained [Gilbride] to draft loan documents for a loan to [Progressive] that required collateral assignments of life insurance policies and other assets as collateral for the loan. This engagement included perfecting the collateral.”

“Turning next to whether Gilbride voluntarily assumed the duty to perfect the security [*3]interests, we note that the parties have not brought to our attention legal malpractice claims where an attorney voluntarily assumes a duty to act. The cases relied on by Supreme Court are distinguishable as they do not relate to a claim for legal malpractice arising from a dispute over the scope of the retainer (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 594 [2005] [assumption of duty by underwriter or issuer of securities]; Applewhite v AccuhealthInc., 21 NY3d 420, 430-431, 434 [2013] [assumption of special duty by a municipality in a negligence claim]; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579 [1994] [maintenance contractor for hospital assumed duty to noncontracting nurse for injuries she sustained when fan dismounted from wall]; Podesta v Assumable Homes Dev. II Corp., 137 AD3d 767 [2d Dept 2016] [assumption of duty by vendors of real property to record partial satisfaction of mortgage]; Nilazra, Inc. v Karakus, Inc., 136 AD3d 994 [2d Dept 2016] [third-party action for contribution and indemnification by attorney defendant against another attorney, who voluntarily assumed a duty to file a notification with the state in connection with the purchase of a business]).

Even assuming that the duty principles in the aforementioned cases can be applied to a legal malpractice claim, Gilbride’s filing of the UCC-1 financing statements and billing Genesis for that work does not establish that summary judgment is warranted on this record.”

The Successor Counsel Doctrine In Plain English

Posted in Legal Malpractice Cases

In one of the shortest decisions recently seen, the Appellate Division, First Department lays out the Successor Counsel doctrine which essentially immunizes the first attorney in Liporace v Neimark & Neimark, LLP  2018 NY Slip Op 00112  Decided on January 9, 2018.

“The Neimark defendants’ failure to serve a timely notice of claim on the New York City Department of Education in the underlying action is not the proximate cause of plaintiff’s alleged damages, because the statute of limitations had not yet expired when the Budin defendants were substituted as plaintiff’s counsel. This substitution of counsel was a superseding and intervening act that severed any potential liability for legal malpractice on the part of the Neimark defendants (Pyne v Block & Assoc. , 305 AD2d 213 [1st Dept 2003]).”

 

The First Department Takes A More Lenient View

Posted in Legal Malpractice Cases

Supreme Court dismissed the complaint, but the First Department’s examination of the documents led to the opposite result in Macquarie Capital (USA) Inc. v Morrison & Foerster LLP ,  2018 NY Slip Op 00091  Decided on January 9, 2018 Appellate Division, First Department.

“Accepting plaintiff client’s allegations as true and drawing all reasonable inferences in its favor (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), a legal malpractice claim was sufficiently alleged (see Fielding v Kupferman, 65 AD3d 437, 439 [1st Dept 2009]). Plaintiff, a lead underwriter on a public offering of a Chinese corporation, claimed that defendant law firm was negligent in failing to uncover material misrepresentations made by the corporation in connection with the offering. Plaintiff sufficiently asserted that but for defendant’s negligence, plaintiff would have ceased its involvement in the public offering and avoided the fees, expenses and other damages it incurred in defending against, as well as settling claims against it (see id.).

Defendant’s argument that an investigative report gave plaintiff prior constructive notice of the material misrepresentations is unavailing (cf. Ableco Fin. LLC v Hilson, 109 AD3d 438 [1st Dept 2013], lv denied 22 NY3d 864 [2014]). In Ableco, this Court granted the defendants’ motion for summary judgment, dismissing the plaintiff’s legal malpractice claim “on the basis of information plaintiff indisputably possessed” prior to the closing of the transaction at issue (id. at 439). Specifically, the plaintiff, the maker of commercial loans, received a press release that explicitly excluded certain property from the available inventory of a bankruptcy estate, and thus, the evidence refuted the plaintiff’s claim that it was unaware that it would not be getting a first priority lien on the entire inventory (id. at 438, 439). Moreover, this Court’s determination was founded not only upon the plaintiff’s possession of the press release, but also on the clear and explicit presentation of the information such that counsel’s legal interpretation was not required (id. at 439). Here, on a pre-answer motion to dismiss, although plaintiff acknowledges that it had possession of the investigative report, the information contained in the report cannot, at this stage, be described as explicitly putting plaintiff on notice and not requiring counsel’s interpretation of the information. Defendant “may not shift to the client the legal responsibility it was specifically hired to undertake” (Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437, 439 [1st Dept 2010] [internal quotation marks omitted]).”

Professional v. Ordinary Negligence

Posted in Legal Malpractice Cases

Negligence is negligence, no?  Well, they are different as Amendola v Brookhaven Health Care Facility, LLC

2017 NY Slip Op 04090 [150 AD3d 1061]  May 24, 2017  Appellate Division, Second Department points out.

“The plaintiff Raymond Amendola (hereinafter the plaintiff), and his wife suing derivatively, commenced this action against Brookhaven Health Care Facility, LLC (hereinafter Brookhaven), and The McGuire Group (hereinafter together the defendants) to recover damages for personal injuries the plaintiff contends he sustained during a physical therapy session conducted by a physical therapist at Brookhaven. Following discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the defendants’ motion.

The Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for ordinary negligence, as the allegations in the complaint only support a cause of action to recover damages for professional malpractice (see Glasgow v Chou, 33 AD3d 959, 961 [2006]; see also D’Elia v Menorah Home & Hosp. for the Aged & Infirm, 51 AD3d 848, 850 [2008]). However, the court properly determined that the defendants failed to establish, prima facie, that they were not vicariously liable for the alleged professional malpractice of the physical therapists or physical therapy assistants administering rehabilitation services at their facility (see Sirignano v Jencik, 123 AD3d 1002, 1003 [2014]; Rivera v Fenix Car Serv. Corp., 81 AD3d 622, 623-624 [2011]; see also Diller v Munzer, 141 AD3d 628, 629 [2016]; Loaiza v Lam, 107 AD3d 951, 953 [2013]).

With respect to the allegations of professional malpractice, although the defendants [*2]made a prima facie showing that they did not deviate from good and accepted standards of physical therapy practice, through the submission of deposition testimony, medical records, and the affidavit of a licensed physical therapist (see Shank v Mehling, 84 AD3d 776, 777-778 [2011]), the affidavit of a licensed physical therapist submitted by the plaintiffs in opposition was sufficient to raise a triable issue of fact as to whether the treatment departed from good and accepted physical therapy practice (see Nisanov v Khulpateea, 137 AD3d 1091, 1094 [2016]; Guctas v Pessolano, 132 AD3d 632, 633 [2015]). Summary judgment is not appropriate in a malpractice action where, as here, the parties adduce conflicting expert opinions (see Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 147 AD3d 739 [2017]; Elmes v Yelon, 140 AD3d 1009, 1011 [2016]).”

A Beach, A Fence and A Superstorm in a Deceit Case

Posted in Legal Malpractice Cases

Legal malpractice cases, as we have said, cover events and issues all over the world.  Here, a land-owner was unhappy about trespassers over his property, trying to get to a beach.  The annoyance led to litigation, to appeals, to legal malpractice and judiciary law § 487 claims.  Palmieri v Perry, Van Etten, Rozanski & Prima Vera, LLP  2017 NY Slip Op 32694(U)  December 7, 2017
Supreme Court, Suffolk County  Docket Number: 15-18431  Judge: David T. Reilly is just another example of the extreme reach of legal malpractice and JL § 487 cases.

“The genesis of this action (Palmieri IT) lies in another matter entitled Paul Palmieri v. Town of Babylon, Suffolk County Supreme Court, Index No. 17598-1999 (Palmieri l). In Palmieri I, which has endured its own tortured history, the plaintiff commenced an action against the Town of Babylon seeking to recover damages for alleged trespass by unspecified individuals onto his property using a public access way from a public road. Plaintiff lives near the end off  Little East Neck Road which terminates at the Great South Bay. It is from that terminus that plaintiff alleges the unspecified individuals gained access to his property.

A short recitation of the procedural history of Palmieri I, as culled from the record currently before the Court, is necessary for a full understanding of the instant determination. Palmieri I was seemingly settled when the parties entered into a Stipulation dated July 17, 2004 which was filed in the County Clerk’s office on August 6, 2004. According to the Stipulation, the Town agreed to erect or cause to be erected an eight (8′) foot high chain-link fence having a gate secured by a lock essentially blocking off public access to plaintiff’s property. The fence was to be built within sixty (60) days of the signing of the Stipulation. On July 24, 2006 the Town of Babylon moved to vacate that Stipulation based upon their contention that the proposed fence was illegal because it blocked navigable waters. A Justice of this Court [Cohalan, J.l agreed and granted that motion on June 11 2007. Plaintiff then appealed to the Appellate Division, Second Department. The Appellate Division reversed this Court in a decision dated November 25, 2008. At that point in the litigation rather than comply with its obligations under the Stipulation, the Town of Babylon filed a motion pursuant to CPLR §3211 seeking dismissal of the plaintiffs’ Complaint. That motion was denied and the decision affirmed (see Palmieri v. Town of Babylon, 87 AD3d 625 [2011]). Of note, the Appellate Division, Second Department declined to impose sanctions against the Town of Babylon, as requested by the plaintiff. This Court is unaware of what, if anything, occurred in the next six (6) years, however, on May 16, 2014, plaintiff moved for contempt against the Town of Babylon, the Supervisor and the Town Council. It appears from the record before the Court that the defendants therein claimed that the Town’s failure to erect the fence was due to the changing topography or the subject area in that Hurricane Sandy caused sufficient erosion such that the location of the proposed fence was now underwater thereby invoking the jurisdiction of the Department of Environmental Conservation (DEC). The Town defendants maintained that approval from that agency was now necessary before the fence could be erected. On July 29th and 31st, 2015 that matter came to a hearing and in a decision dated October 29, 2015 the Court (Hudson, J.) denied the application for contempt based solely on an insufficiency of proof, but warned the parties that they should move expeditiously to fulfill the obligations imposed by the Stipulation.”

“After careful consideration, the Court finds that the plaintiffs causes of action sounding in tortious interference with a contract and violation of Judiciary Law §487 must be dismissed based upon the doctrine of collateral estoppel. Throughout the plaintiffs’ Complaint arc allegations that the defendants herein engaged in a scheme with the Town of Babylon to deny the plaintiff the relief afforded him within the 2004 Stipulation of Settlement. As the Palmieri I litigation endured the torturous history evidenced by the present record before the Court. certain factors occurred which operated to stall the Town’s obligation to construct the fence at issue, most notably the motions and appeals which litter the record. “

When Does a Failure to Answer Malpractice Claim Commence?

Posted in Legal Malpractice Cases

It doesn’t get much simpler than a legal malpractice claim that the attorneys failed to answer, and a default judgment was entered.  When does the statute of limitations commence?  Billiard Balls Mgt., LLC v Mintzer Sarowitz Zeris Ledva & Meyers, LLP  2018 NY Slip Op 00018
Decided on January 2, 2018  Appellate Division, First Department gives something of an answer.

“Plaintiff Billiard Balls Management (Billiard) sufficiently stated a claim for legal malpractice. The record clearly establishes an attorney-client relationship, as defendant entered into two stipulations extending Billiard’s time to answer in an underlying personal injury action, which were filed in court, and represented itself as Billiard’s attorney (see Cooke v Laidlaw Adams & Peck, 126 AD2d 453, 455 [1st Dept 1987]; compare Pellegrino v Oppenheimer & Co., Inc., 49 AD3d 94, 99 [1st Dept 2008]).

The motion court also properly determined that the action was timely commenced (CPLR 214[6]). Assuming that the malpractice claim accrued on January 11, 2013, when the time to answer the underlying complaint expired, or the earlier date of December 28, 2012, when the insurer disclaimed coverage, Billiard was prevented from exercising any legal remedy by virtue of the underlying motion court’s order, which denied the underlying plaintiff’s motion for a default judgment against Billiard, until that order was subsequently reversed by the Second Department in September 2015 (Gershman v Ahmad, 131 AD3d 1104 [2d Dept 2015]; see Coyle v Lefkowitz, 89 AD3d 1054, 1056 [2d Dept 2011]; Brown v State of New York, 250 AD2d 314, 319 [3d Dept 1998]).”

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