Matin v Chowdhury  2020 NY Slip Op 32491(U)  June 18, 2020  Supreme Court, Queens County  Docket Number: 701633/2019  Judge: Joseph Risi is the story of possible dual representation in the purchase of a franchise.  Naturally something went wrong, and now there are claims and third-party claims of legal malpractice.

“Applying these principles to the case at bar, the court concludes that the allegations of the third-party complaint as well as certain documentary evidence submitted by the Billah defendants, including e-mails and the underlying management agreements between Chowdhury and the plaintiff in the main action, Mohammed Matin (“Matin”), do not conclusivelyestablish as a matter of law that the Billah defendants are entitled to dismissal of the third-party claim for legal malpractice asserted against them. 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 [2007]; Von Duerring v Hession & Bekoff, 71 AD3d 760 [2d Dept 2010]). To establish causation, a plaintiff must show that, but for the lawyer’s negligence, he
or she would have prevailed in the underlying action or would not have incurred any damages (id.).

Here, the third-party complaint sufficiently alleges a claim for legal malpractice by stating that, in 2018, Chowdhury believed that the Billah defendants were acting as her attorney with respect to the management agreement and the purchase agreement between Matin and Chowdhury, and that the Billah defendants were negligent in failing to advise and discuss with Chowdhury all the legal rights and remedies available to her, failing to know the applicable law, and failing to advise Chowdhury of a conflict of interest in representing both Matin and Chowdhury in connection with the management agreement. The third-party complaint further alleges that, as a result of this alleged negligence, Chowdhurysigned the management agreement thatshewould have not otherwise signed and forewent legal action to recover the $95,000.00 paid by Chowdhury in the purchase of the subject Subway restaurant. The Billah defendants primarily argue that they did not provide legal representation to Chowdhury in connection with the management agreement and subsequent asset
purchase agreement between Chowdhury and Matin. In support of their motion, the Billah defendants submitted an email dated June 28, 2016, in which it was stated that the Billah defendants represented Matin in the preparation of the contract of sale between Matin and Chowdhury and that Chowdhury informed Matin that she would not be represented by an attorney in the transaction, as well as the signed asset purchase agreement between the parties dated April 13, 2018, the signed management agreement between the parties dated October 4, 2017, and the signed management agreement between the parties dated January 16, 2018. These documents, however, do not completely disprove Chowdhury’s factual allegations of legal malpractice surrounding the events that occurred in connection with the management agreement and the asset purchase agreement between Matin and Chowdhury in 2018.”

Here, seller’s attorney is sued for a real estate transaction gone bad.  The dispute was about title problems.  In Jenkin v Cadore, 2020 NY Slip Op 03649  Decided on July 1, 2020
Appellate Division, Second Department, one important issue is that Plaintiffs did not use an expert affidavit in opposition to summary judgment.

“On December 14, 2012, the plaintiff, James Jenkin (hereinafter the buyer), and the defendants third-party plaintiffs, Veronica Cadore and Michelle Cadore (hereinafter together the sellers), entered into a contract for the sale of real property in Brooklyn. The sellers were represented in the transaction by the third-party defendants, Peter J. Goodman and The Goodman Law Firm (hereinafter together the Goodman defendants). The contract required that the sellers provide marketable title.

On December 21, 2012, the buyer’s title insurance company raised certain objections [*2]to the sellers’ title to the subject property. On March 7, 2013, the buyer’s attorney sent Goodman a letter scheduling the closing for April 8, 2013, with marketable title as required by the contract and with time being of the essence. On March 18, 2013, Goodman rejected the proposed closing, indicating that the sellers were unable to deliver clear and marketable title at that time. However, Goodman also advised the sellers that all substantive title issues had been resolved and that the objections to title could easily be removed by ministerial action. He cautioned the sellers that they risked a lawsuit for specific performance by the buyer if they attempted to unilaterally cancel the contract. On March 21, 2013, the sellers emailed Goodman, indicating their belief that the contract had expired and authorizing Goodman to return the down payment to the buyer. On April 3, 2013, the buyer’s attorney sent Goodman a letter stating that the title insurance company had waived its objections to title, and rescheduled the closing for April 22, 2013, with time being of the essence. When the closing did not go forward, the buyer commenced this action against the sellers, seeking, inter alia, specific performance of the contract of sale.

Thereafter, the sellers commenced a third-party action against the Goodman defendants, seeking to hold them liable, inter alia, on a theory of legal malpractice for failing to terminate the contract of sale and refund the buyer’s down payment in accordance with their instructions. Following joinder of issue in the third-party action, the Goodman defendants moved, inter alia, for summary judgment dismissing the third-party complaint. Insofar as relevant, the sellers cross-moved for summary judgment on the cause of action in the third-party complaint to recover damages for legal malpractice. In an order dated April 14, 2017, the Supreme Court granted the Goodman defendant’s motion, denied the sellers’ cross motion, and dismissed the third-party complaint. The sellers appeal.

“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” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845; see Bells v Foster, 83 AD3d 876, 877). ” 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'” (Bells v Foster, 83 AD3d at 877, quoting Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018).

In order to be entitled to summary judgment dismissing a cause of action, a defendant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). ” Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial'” (Buczek v Dell & Little, LLP, 127 AD3d 1121, 1123, quoting Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d 955, 956).

Here, the Goodman defendants established their prima facie entitlement to judgment as a matter of law dismissing the sellers’ cause of action to recover damages for legal malpractice through the affirmation of an expert witness establishing both that Goodman did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and the sellers did not sustain actual and ascertainable damages as a result of any alleged breach of Goodman’s duty (see Buczek v Dell & Little, LLP, 127 AD3d at 1123; Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d at 956).

In opposition, the sellers failed to raise a triable issue of fact, since they did not produce any expert evidence regarding whether Goodman’s conduct constituted malpractice and caused the sellers to incur damages, and under the circumstances of this case, such expert evidence was required for an evaluation of the adequacy and propriety of Goodman’s actions (see Healy v Finz & Finz, P.C., 82 AD3d 704, 706; Northrop v Thorsen, 46 AD3d 780, 782; Natale v Samel & Assoc., 308 AD2d 568, 569). In this regard, the record demonstrates that Goodman’s conduct in the instant case did not rise to the level of malpractice as a matter of law (cf. Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511, 514). The sellers’ conclusory and speculative contention that Goodman breached the duty of loyalty to them due to his professional relationship with the real estate broker [*3]handling the transaction was likewise insufficient to raise a triable issue of fact (see generally Morgan v New York Tel., 220 AD2d 728, 729).”

Real Estate claims fill a large part of the Legal Malpractice docket in New York.  This is certainly not surprising, as real estate might be the largest economic engine for New York City, and there is certainly a lot of money moving around in the real estate market.  Moncho v Miller  2020 NY Slip Op 31821(U)  June 12, 2020  Supreme Court, New York County  Docket Number: 155382/2017  Judge: W. Franc Perry is a fine example.  Here, the question surrounds standing, privity and whose ox was gored.

“The following facts are taken from the second amended complaint. Plaintiffs allege that, at all relevant times, Moncho was the sole shareholder of 261 East 78 Realty Corp. (NY St Cts
Elec Filing System [NYSCEF] Doc No. 149, second amended verified complaint, ¶ 2). From April 1, 2007 through February 28, 2014, 261 East 78 Realty Corp. owned a six-story medical office building located at 261 East 78th Street in Manhattan (id., ¶ 4). Miller was the sole member of 261 Lofts Manager, LLC (id., ¶ 6). Sprei was Miller’s business associate (id., ¶ 8). On December 6, 2011, 261 East 78 Realty Corp. filed for Chapter 11 bankruptcy protection in the United States Bankruptcy Court for the Southern District of New York (id., ¶ 27).

On January 1, 2013, Moncho, in his capacity as president of 261 East 78 Realty Corp., entered into a retainer agreement with the DelBello firm (id., ¶ 11). Pursuant to the retainer
agreement, the DelBello firm was to provide legal services to 261 East 78 Realty Corp., including, but not limited to, the prosecution of a Chapter 11 bankruptcy proceeding (id., ¶ 12). Pasternak was one of the attorneys who was anticipated to offer services to 261 East 78 Realty Corp. (id., ¶ 13). Pasternak was a non-equity partner in the DelBello firm (id., ¶ 14). Plaintiffs allege that, upon confirmation of the bankruptcy plan, the DelBello firm and Pasternak continued to provide legal services to Moncho individually (id., ¶ 16). The DelBello firm continued to send invoices to Moncho (id., ¶¶ 18-19; exhibit C).

Approximately one week later, on January 10, 2013, Pasternak began suggesting that Moncho utilize Sprei as a plan funder and Madison Realty Capital as lender (id., ¶ 29). Plaintiffs
allege, upon information and belief, that neither Pasternak nor the DelBello firm performed any due diligence as to Sprei or Miller’s suitability as plan funders (id., ¶ 30). Plaintiffs allege that there were at least seven lawsuits filed against Sprei and/or Miller, with similar allegations and  which resulted in judgments against Miller and Sprei (id., ¶ 31). Plaintiffs allege, upon information and belief, that Sprei induced Pasternak to recommend him to plaintiffs by promising to pay him a personal brokerage commission in the amount of $25,000 (id., ¶ 32). According to plaintiffs, Sprei, in fact, paid Pasternak a $25,000 commission (id., ¶ 33). In September 2013, Pasternak negotiated a settlement of 261 East 78 Realty Corp.’s debt
with the secured creditor (id., ¶ 43). One of the key terms of the settlement was that the secure creditor would foreclose and plaintiffs would lose the property if the reorganization plan were not fully funded by Friday, February 28, 2014 (id., ¶ 44).”

“Pasternak next argues that the “inability to fund” legal malpractice claim should be dismissed because it is refuted by documentary evidence, and fails to allege but for causation. In
addition, Pasternak contends that the legal malpractice claim based on his alleged conflict of interest in accepting a commission fails to allege but for causation. Pasternak maintains that he only represented 261 East 78 Realty Corp. Finally, Pasternak argues that the Bankruptcy Court’s Fee Order granting fees bars the legal malpractice claims based on the doctrine of res judicata.

To state a cause of action for legal malpractice, the plaintiff must allege that “the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,” and that the “breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]). Violations of disciplinary or ethical rules do not, by themselves, give rise to a cause of action (Sumo Container Sta. v Evans, Orr, Pacelli, Norton & Laffan, 278 AD2d 169, 170-171 [1st Dept 2000]; Lavanant v General Acc. Ins. Co. of Am., 212 AD2d 450, 451 [1st Dept 1995]). However, “liability can follow where the client can show that he or she suffered actual damage as a result of the conflict” (Tabner v Drake, 9 AD3d 606, 610 [3d Dept 2004]). “Unsupported factual allegations, conclusory legal argument or allegations contradicted by documentation, do not suffice” (Dweck Law Firm v Mann, 283 AD2d 292, 293 [1st Dept 2001]). “Moreover, the client must plead specific factual allegations establishing that but for counsel’s deficient representation there would have been a more favorable outcome to the underlying matter” (id.). “To recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship” (Moran v Hurst, 32 AD3d 909, 910 [2d Dept 2006]). “Since an attorney-client relationship does not depend on the existence of a formal retainer agreement or upon payment of a fee, a court must look to the words and actions of the parties to ascertain the existence of such a relationship” (Nelson v Kalathara, 48 AD3d 528, 529 [2d Dept 2008] [citation omitted]; see also Matter of Priest v Hennessy, 51 NY2d 62, 71 [1980] [payment of fee by third party does not create attorney-client relationship between attorney and payor]). “[A]n attorneyclient relationship is established where there is an explicit undertaking to perform a specific task” (Wei Cheng Chang v Pi, 288 AD2d 378, 380 [2d Dept 2001], lv denied 99 NY2d 501 [2002]).

However, “[t]he unilateral belief of a plaintiff alone does not confer upon him or her the status of a client” (Moran, 32 AD3d at 911). Pasternak has failed to establish the absence of an attorney-client relationship with Moncho. While Pasternak points out that the retainer agreement was between 261 East 78 Realty Corp. and the DelBello firm (NYSCEF Doc No. 240), an attorney-client relationship does not depend on the existence of a retainer agreement. Moreover, the fact that the Bankruptcy Court authorized the DelBello firm to appear on behalf of 261 East 78 Realty Corp. is not dispositive (see Terio v Spodek, 63 AD3d 719, 721 [2d Dept 2009] [“the fact that it was purportedly not the attorney of record at the time of a hearing before the United States Bankruptcy Court to determine whether the particular asset at issue qualified as an exemption, is not dispositive of the existence of an attorney-client relationship during the period of the alleged negligence”]). The invoices relied upon by Pasternak do not conclusively establish that Pasternak was not Moncho’s attorney.
In any event, the legal malpractice claims are legally insufficient.

Although plaintiffs allege that Pasternak “introduce[ed] his client to a plan funder who he knew lacked the ability to fund a reorganization plan” (NYSCEF Doc No. 149, second amended
verified complaint, ¶ 162), plaintiffs do not allege any damages resulting from this purported negligence (see Lavanant, 212 AD2d at 451). Moreover, plaintiffs’ allegation that “had Moncho been able to utilize his preferred choice of plan funder, the Lightstone Group, none of the injuries incurred as the result of Miller and Sprei’s acts would have occurred” (NYSCEF Doc No. 149, second amended verified complaint, ¶ 169) is too speculative (see Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006] [“speculation on future events is insufficient to establish that the defendant lawyer’s malpractice, if any, was a proximate cause of any such loss”]). ?

VPC Projects, LLC v Golenbock Eiseman Assor Bell & Peskoe LLP   2020 NY Slip Op 32069(U)   June 2, 2020  Supreme Court, New York County  Docket Number: 156097/2016  Judge: Margaret A. Chan was decided on the question of whether investigating insurance coverage for a nuisance complaint was part of the attorney-retention or merely a ministerial act, for which no legal malpractice could occur.  In the end, judge Chan decided that the attorneys helped out, but did not incur an obligation to handle an insurance claim.

“Soon after opening Veronica Peoples Club (“the bar”) in 2010, plaintiff was met with multiple noise complaints from its neighbors, Peter and Lena Jou. Consequently, plaintiff received citations and was subject to hearings and fines from the New York City’s Department of Environmental Protection (DEP). Peter and Lena Jou ultimately commenced a nuisance action against plaintiff and its landlord on January 2, 2012 (the Jou Action). ”

“Immediately after the commencement of the Jou Action, Robert Millstone sent defendant copies of the pleadings in the Jou Action. On January 4, 2012, an attorney in defendant’s firm, Elizabeth Jaffe, emailed Heather Millstone asking whether plaintiff had insurance coverage. Heather Millstone responded on January 5 and furnished Jaffe with plaintiff’s insurance broker’s name, Jennifer Shoemaker, and her contact information. On January 6, Jaffe emailed Shoemaker at her office, W.B. Payne Co. (the third-party defendant), and requested that Shoemaker send the Jou Action complaint to plaintiff’s insurance carrier in order to serve as plaintiff’s notice of claim. Jaffe also requested that Shoemaker keep Jaffe apprised
of the status of the insurer’s review of the claim; Shoemaker agreed to do so.

In response to the email exchange between Jaffe and Shoemaker, Heather Millstone emailed Jaffe asking whether plaintiff was covered by the insurance carrier, to which Jaffe responded “no, not at all. Probably not, but we will give it a shot just in case” (NYSCEF # 118, Email dated January 6, 2012). On January 10, 2012, Shoemaker faxed a notice of claim and the complaint in the Jou Action to plaintiff’s insurer’s representative, RCN. Shoemaker also confirmed to Jaffe that she sent the notice of claim to plaintiff’s insurer and that she
would advise Jaffe of coverage “as soon as I receive the claim notification with the claim number[,] I will forward over to you for your records” (NYSCEF # 149, Email dated January 10, 2012). ”

“Defendant denies being retained to make an insurance coverage determination for the underlying Jou Action. Defendant characterizes Jaffe’s  equest for the insurance policy and forwarding it to plaintiff’s insurance broker as ministerial acts – not an undertaking of the insurance coverage issue. Defendant  contends that even if an obligation did exist, defendant fulfilled it by tendering the Jou Action complaint to plaintiff’s insurance agent. ”

“As such, defendant has made its prima facie showing that its scope of representation in the Jou Action did not include rendering an insurance coverage determination, including a follow-up on plaintiff’s insurance claim. Plaintiff has not raised an issue of fact to defeat defendant’s prima facie case. In so determining that plaintiff’s insurance coverage issue was not within defendant’s scope of representation, defendant is not liable for failing to act outside the scope of its retention (AmBase Corp., 8 NY3d at 435). Hence, defendant’s
remaining contentions are academic and will not be addressed.

Plaintiff’s claim that defendant’s alleged erroneous advice was the proximate cause of its damages is likewise academic. Nonetheless, plaintiff fails to show that it would not have incurred any damages but for defendant’s alleged negligence (see Rudolf v Shayne, Dachs, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotations and citations omitted]). The Millstones’ respective emails in February and March 2012 show that the prominent reason plaintiff lost its investment or “throwing in the towel” was because the bar was not profitable to warrant dealing with the incessant noise complaints and fines (NYSCEF ## 127, 129, 139).”

Legal malpractice cases frequently revolve around real estate, and almost as frequently around intra-sibling disputes.  Wong v Yeung-Ha  2020 NY Slip Op 31832(U)  June 11, 2020
Supreme Court, Kings County Docket Number: 505276/18,   Judge: Karen B. Rothenberg hits both issues when a $14 Million estate consisting of Brooklyn and Hong Kong properties devolves into a family fight over the proceeds.

“On March 15, 2018, Angie commenced this action against attorney Yeung-Ha, the G&Y Law Firm, her mother, Esther Mak Wong (Esther), individually and as Trustee of the Esther Mak Wong Revocable Trust and the Esther Mak Wong Revocable Trust II (the Trusts), her sister, Wendy Wong Hoi Ying a/k/a Wendy Wong (Wendy), and her brothers, Alan Wong Chi Hang a/k/a Alan C.H. Wong (Alan) and Michael Wong Kin Hang a/k/a Michael K.H. Wong (Michael).”

“The complaint alleges that Angie’s father, Bill Wong a/k/a Bill Wai Wo Wong (Bill), died on September 7, 2014, “leaving a large estate . . .” (complaint at ¶ 10). Bill allegedly “left a will devising, in relevant part, one half of all of [his] tangible personal property (including all insurance policies pertaining thereto) to Esther, with the other half to be divided equally (one eighth each) among Angie, Alan, Michael, and Wendy” (id. at ¶ 12). Bill’s will allegedly “devised one half of [his] residual estate to Esther, and the other half to be divided equally among Angie, Alan, Michael, and Wendy, so that each would receive an eighth of [his] residual estate” (id. at ¶ 13). Angie was allegedly named Executor of her father’s will (id. at ¶ 14).
The complaint alleges, upon information and belief, that “in or about July 2014 Michael and Alan met with Yeung-Ha and G&Y and then or thereafter Michael and Alan decided [that] Yeung-Ha and H&Y should do legal work for Bill’s estate” (id. at ¶ 15). When Bill died, Michael allegedly “contacted Angie and suggested [that] she retain YeungHa and G&Y as her attorneys to represent her in the probate of Bill’s estate” (id. at ¶ 16). On September 23, 2014, Angie and Esther allegedly executed a written retainer agreement (retainer agreement) hiring attorney Yeung-Ha’s law firm, the G&Y Law Firm, to do legal  work regarding Bill’s estate (id. at ¶ 17).

Yeung-Ha allegedly advised Angie that “the size of Bill’s estate subjected it to the federal and estate tax, and that the portion of the estate available for distribution to Bill’s heirs would be reduced by at least five million dollars if something was not done to reduce the potential estate tax liability” (id. at ¶ 18). Yeung-Ha also allegedly advised Angie that the estate tax could be reduced if the family implemented the following estate plan: (1) Angie, Alan, Michael and Wendy would renounce their inheritances, pursuant to EPTL § 2-1.11; (2) Angie would renounce her appointment as Executor of Bill’s estate; (3) Bill’s estate would pass to Esther through intestacy; and (4) Esther would establish multiple limited liability companies (LLCs) and grantor retained annuity trusts (GRATS) to hold the properties devised by Bill’s estate, and pay Angie, Alan, Michael and Wendy the income from those properties (id. at ¶ 19). Esther, Michael, Alan and Wendy allegedly agreed to go forward with Yeung-Ha’s proposed estate plan (id. at ¶ 21). Angie, based on her family’s encouragement, allegedly “agreed to the renunciations and to the appointment of Esther as administrator . . . of the estate” (id. at ¶ 24). ”

“Importantly, the Second Department has held that “a legal malpractice plaintiff need not, in order to assert a viable cause of action, specifically plead that the alleged malpractice
fell within the agreed scope of the defendant’s representation” because “[l]egal malpractice actions . . . are not subject to special pleading requirements” (Shaya B. Pacific, LLC, 38
AD3d at 39). “Rather, a legal malpractice defendant seeking dismissal pursuant to CPLR 3211 (a) (1) must tender documentary evidence conclusively establishing that the scope of
its representations did not include matters relating to the alleged malpractice” (id.). Here, the retainer agreement submitted in support of defendants’ dismissal motion
does not conclusively establish that the scope of defendants’ representation did not include matters relating to the alleged malpractice. Although the retainer agreement generally
lists certain “tasks that need to be performed in connection with the estate[,]” it also states that “[w]e are prepared to handle all work which is required to be performed or that you
request us to perform . . .” (emphasis added). In addition, while the retainer agreement initially states (on page one) that “I am writing in order to set forth an agreement between
us concerning our representation of Esther as proposed Executor of [Bill’s] estate[,]” it later states (on page two) that “we are undertaking joint representation . . .” of Angie and
Esther. Contrary to defendants’ contentions, the retainer agreement does not expressly limit the scope of that legal representation and does not expressly state that defendants’
legal representation of Angie is in her representative capacity only. Furthermore, Angie’s signature on the retainer agreement does not indicate that she executed it in her
representative capacity as Executor of Bill’s estate.

In any event, even absent privity, Angie may maintain a legal malpractice claim against Yeung-Ha and the G&Y Law Firm in her individual capacity, as a matter of law, since the complaint specifically alleges that those defendants engaged in a fraudulent scheme to induce Angie to execute the Renunciation and thereby relinquish her inheritance. In addition, the complaint sufficiently alleges the elements of a legal malpractice claim. Accordingly, defendants’ motion to dismiss Angie’s second cause of action for legal malpractice is denied.”

A client walks into the office and tells you he was hurt.  You discuss his situation, and tell him that you will not take the case.  You hand him a letter saying you will not be taking the case.  Can there be liability when he later discovers that he could have sued the City of New York?

The answer to at least part of the question is found in Lago v Gucciardo Law Firm  2020 NY Slip Op 31716(U) June 3, 2020 Supreme Court, New York County Docket Number:  57977/2018
Judge: Barbara Jaffe.

“In advancing causes of action against defendants for legal malpractice and breach of contract, plaintiff alleges in his complaint, in pertinent part, that on October 9, 2015, he “retained” defendants to represent him and advise him as to whether he had “any legal claims to compensate” him for an accident he had while working as a laborer on August 25, 2015 for a subcontractor at a New York City-owned construction site. Defendants advised him that there was no basis for filing a lawsuit and referred him to a Workers’ Compensation attorney. Thus,plaintiff alleges, defendants failed to advise him that he had causes of action against City for its failure to provide a safe place to work in violation of Labor Law§§ 200, 240, and 241(6), in that it caused and permitted “the improper hoisting of construction materials, which resulted in a sewer pipe” striking the ladder on which he stood, causing him to fall some eight feet to the bottom of the trench in which the ladder had been placed, injuring him. “‘But for’ those failures, plaintiff claims, he “would have had a viable and valuable personal injury action against The City of New York.” Based on these allegations, plaintiff claims that defendants may be held liable for legal malpractice. ”

“To prevail on a motion for summary judgment, the movant must establish, prima facie, its entitlement to judgment as a matter of law, providing sufficient evidence demonstrating the
absence of any triable issues of fact. (Jacobsen v New York City Health & Hasps. Corp., 22 NY3d 824, 833 [2014]). If this burden is met, the opponent must offer evidence in admissible
form demonstrating the existence of factual issues requiring a trial; “conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient.” (Justinian Capital SPC v WestLB AG, 28 NY3d 160, 168 [2016], quoting Gilbert Frank Corp. v Fed. Ins. Co., 70 NY2d 966, 967 [1988]). In deciding the motion, the evidence must be viewed in the “light most
favorable to the opponent of the motion and [the court] must give that party the benefit of every favorable inference.” (0 ‘Brien v Port Authority of New York and New Jersey, 29 NY3d 27, 37 [2017]).

To establish a claim for legal malpractice, a party must show 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 approximately used the party to sustain actual and ascertainable damages. (Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007]). To establish proximate cause, a plaintiff must demonstrate that but for the attorney’s negligence, the plaintiff would have prevailed in the underlying matter or would not have sustained ascertainable damages. (Nomura Asset Cap. Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40 [2015]).

Here, defendants prove, based on plaintiff’s deposition, that there was no retainer agreement or contract with plaintiff, that the firm performed no legal services for him and
sent him no bills or invoices, and that he did not believe that the firm was representing him.  hus, defendants demonstrate, prima facie, that there was no attorney-client relationship between them and plaintiff. In any event, plaintiff has apparently retreated from the claim in his complaint that he had retained defendants to represent him, and now asserts that at the consultation, a fiduciary duty arose.

The evidence offered by defendants also reflects that plaintiff transmitted to the firm no confidences, that they had no history with him nor communications following the consultation
apart from the alleged rejection letter, and that the firm had undertaken no task on plaintiff’s behalf beyond referring him to the Workers’ Compensation attorney. Thus, defendants
demonstrate, prima facie, that no fiduciary relationship resulted from the consultation. The opinion offered by plaintiff’s expert that defendants owed him a fiduciary duty not to
“give false recommendations or false advice where it was reasonably foreseeable that the client would rely on the recommendation or advice” is unsupported by legal authority as are all of his opinions. His opinion that a lawsuit against City is “implicate[ d]” under the Labor Law is of no evidentiary value and likewise, unsupported.

Even if plaintiff had felt overwhelmed by the firm’s opinion that he had no case and thus pursued the claim against City no further, he offers no evidence that defendants were aware of his feelings in that regard. (See Gregor v Rossi, 120 AD3d 447 [1st Dept 2014] [“Plaintiffs subjective belief did not create an attorney-client relationship or a close relationship approaching privity that imposed upon defendants a duty to them to impart correct information … “]). That the firm made available to him a Workers’ Compensation attorney does not prove otherwise. In any event, plaintiffs feeling apparently subsided when he eventually retained not one but two successor attorneys to pursue his claim against City.”

Legal malpractice plaintiffs rarely get procedural wins.  Fernandez v McCarthy  2020 NY Slip Op 03079  Decided on May 28, 2020 Appellate Division, First Department is an exception.

“Under the circumstances, we find that, although plaintiff delayed in seeking an extension of his time to re-serve the complaint, the motion court appropriately exercised its discretion when it extended plaintiff’s time in the interest of justice (CPLR 306-b), as plaintiff established the existence of several relevant factors weighing in favor of an extension (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-105 [2001]; Chase Home Fin. LLC v Adago, 171 AD3d 533 [1st Dept 2019]). Plaintiff’s legal malpractice claim, which would otherwise be lost due to the running of the statute of limitations, seems to be potentially meritorious, and defendants have not established that they would suffer substantial prejudice from the extension, where they had actual notice of this action and the allegations against them from early on (see Wimbledon Fin. Master Fund, Ltd. v Laslop, 169 AD3d 550 [1st Dept 2019]; Pennington v Da Nico Rest., 123 AD3d 627 [1st Dept 2014]).”