A line of legal malpractice cases in New York, arising primarilly out of matrimonial underlying matters have found that if the client positively answers an allocution question of whether the client is satisfied with the attorneys’work, then a later legal malpractice case is forfeit.  Here in Stennett v Goldberg & Cohn, LLP   2020 NY Slip Op 33901(U) November 23, 2020 Supreme Court, Kings County Docket Number: 511918/2018 Judge: Pamela L. Fisher highlihghts the history of this doctrine.

“The court declines to dismiss plaintiffs cause of action for legal malpractice pursuant to CPLR § 321 l(a)(l), on the basis of plaintiffs llocution under oath, because New York State courts have not taken a consistent position on whether an allocution that a client was satisfied with the services of his/her attorney precludes a client from bringing a claim for legal malpractice (See Boone v. Bender, 74 A.D.3d 1111, 1113 [2d. Dept. 2010] (granting defendants’ motion for summary judgment on the grounds that the “open-court stipulation of settlement established
that the plaintiff was satisfied with the defendants’ representation of her”); Harvey v. Greenberg, 2009 NY Slip Op. 32625(U) [Sup Ct, NY County 2009] (granting motion to dismiss); ajf’d 82 A.D.3d 683, 683 [1st Dept. 2011]; Katebi v. Fink, 51A.D.3d424, 425 [l st Dept. 2008] (granting motion to dismiss); But see Cruciata v. Mainiero, 31 A.D.3d 306, 306 [1st Dept. 2006] (reversing dismissal under CPLR § 321 l(a)(l) “[d]espite the detailed on-the-record settlement of plaintiffs matrimonial action,” on the
grounds that “the former husband’s pension and other assets were overlooked in arriving at the stipulation”); Gad v. Sherman, 160 A.D.3d 622, 623 [2d. Dept. 2018] (affirming trial’s court’s order denying dismissal of complaint pursuant to CPLR § 321 l(a)(l) on the grounds that “the documentary evidence submitted by the defendant, consisting of the transcript of the April 2014 court appearance, failed to utterly refute the plaintiff’s allegations of malpractice”)). “

Martin Assoc., Inc. v Illinois Natl. Ins. Co. 2020 NY Slip Op 06860 [188 AD3d 572] November 19, 2020 Appellate Division, First Department is an excellent example of how the “but for” principle is applied.  In this case, the claim was that defendant attorneys failed to notify the excess carrier, and thus, coverage was lost.

“The court also properly dismissed the legal malpractice claim against Rubin. The duty to provide timely notice to the excess insurance carrier had long since expired when Rubin was retained in December of 2009. Thus, plaintiff cannot establish the element of proximate causation necessary to proving its legal malpractice claim, because it cannot show that if Rubin had provided notice to the excess carrier when it was retained, the carrier would not have denied coverage (see Reibman v Senie, 302 AD2d 290 [1st Dept 2003]). Nor did Rubin have the obligation to advise plaintiff of all potential malpractice claims against predecessor counsel when it was beyond the scope of its retention (see Keld v Giddins Claman, LLP, 170 AD3d 589 [1st Dept 2019]).”

Schlam Stone & Dolan LLP v Toussie  2020 NY Slip Op 06874 Decided on November 19, 2020 Appellate Division, First Department is an example of how the account stated doctrine works for attorneys.

“Plaintiff was entitled to summary judgment on its account stated claim, as it submitted documentary evidence showing that defendant Robert I. Toussie had “received and retained the invoice[s] without objection” (Perine Intl. Inc. v Bedford Clothiers, Inc., 143 AD3d 491, 493 [1st Dept 2016] [internal quotation marks omitted]). Toussie’s own written statements refute his argument that plaintiff was unauthorized to represent him, and/or that he had objected to plaintiff’s work, when he terminated plaintiff in early October 2018. The termination, which occurred prior to Toussie’s receipt of the relevant invoices, was rescinded by Toussie shortly thereafter. Despite regular correspondence between plaintiff and Toussie during the following months, there is no indication that he objected to plaintiff’s invoices or continued representation. Moreover, defendants’ legal malpractice counterclaims were not sufficiently intertwined with the account stated claim so as to preclude summary judgment (see Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453, 454 [1st Dept 2013], lv denied 23 NY3d 904 [2014]).”

Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP  2020 NY Slip Op 06711 Decided on November 17, 2020 Appellate Division, First  Department seems to be a case that could have been won, it it had been brought in 2016 rather than in 2018.

“Plaintiff, a general contractor, entered into a construction agreement with nonparty Well-Come Holdings, Inc. to perform construction and excavation work on property owned by Well-Come. In 2004 an adjacent property owner commenced an action against Well-Come and plaintiff alleging that the excavation work had damaged its property. In 2006 Well-Come commenced a declaratory judgment action against plaintiff and its insurerDefendant, as counsel for plaintiff, allegedly without plaintiff’s knowledge and consent, stipulated with Well-Come’s counsel that plaintiff and its insurer would jointly defend and indemnify Well-Come for all damages in connection with the project, including those that plaintiff claimed were caused by Well-Come’s own negligence. In 2007 defendant entered into a second stipulation, allegedly without plaintiff’s knowledge and consent, discontinuing the declaratory judgment action brought by Well-Come as against plaintiff and agreeing that plaintiff alone would defend and indemnify Well-Come (the 2007 stipulation). On July 29, 2013, a jury rendered a verdict as to damages against Well-Come and plaintiff, and on September 5, 2018, after five years of posttrial proceedings, a money judgment was entered against them jointly.

Plaintiff commenced this action on September 17, 2018, alleging that defendant committed legal malpractice by entering into the stipulations. Plaintiff alleges that entering into the 2007 stipulation, which shifted the responsibility for Well-Come’s defense from plaintiff’s insurer to plaintiff alone, was professional negligence. In December 2018 defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5). The motion court ruled that the complaint was time-barred because the statute of limitations had begun to run on July 29, 2013, the date on which the jury rendered its verdictwhich was the date on which plaintiff’s damages were reasonably calculable. We affirm.”

“”An action to recover damages for an attorney’s malpractice must be commenced within three years from accrual (see CPLR § 214[6]). A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court. In most cases, this accrual time is measured from the day an actionable injury occurs [or when the damages are sufficiently calculable], even if the aggrieved party is then ignorant of the wrong or injury.” (McCoy v v. Feinman99 NY2d 295, 301 [2002] [internal quotation marks and citation omitted]; King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541 [2d Dept. 2018]).”

Jewell Law, PLLC v Ruci  2020 NY Slip Op 33648(U) November 3, 2020
Supreme Court, New York County Docket Number: 655702/2019
Judge: Arthur F. Engoron displays some unique inductive reasoning, and some conventional legal reasoning.  Breach of Fiducary duty is dismissed in an unconventional matter.  Legal malpractice is more conventionally decided.

“This Court finds that the breach of fiduciary duty claim is duplicative of the legal malpractice claim as they seek identical relief, namely, damages in an amount to be determined at trial, plus interest and costs. Alphas v Smith, 147 AD3d 557, 559 (!81 Dept 2017) (breach of fiduciary duty claim was duplicative of malpractice claim as it sought similar damages). Furthermore, the actions of which Ruci complained are not within what this Court considers to be typical breach of fiduciary duty claims. Ruci’s position proves too much; it would mean that every malpractice claim would also allow a breach of fiduciary duty claim, which is not the law. ”

“Jewell claims that Ruci has failed adequately to plead legal malpractice, specifically, that Ruci has failed to allege “but for” causation, because any allegation that the court in the Underlying Action would have granted unsupervised visitation while a criminal court order of protection was in effect is impermissible speculation. That is incorrect. Here, Ruci alleges that Jewell: failed to file an emergency Order to Show Cause to commence the Underlying Action, which Ruci alleges would have expedited the Underlying Action and lessened the time missed between Ruci and his child; failed to file a Writ of Habeas Corpus, as directed by Ruci; improperly interfered with Ruci’s criminal case by pressuring Ruci to do certain things despite the fact that Jewell was not
retained to represent him in that proceeding; failed to effectuate proper and timely service in the Underlying Action prior to the initial court date, which increased the time missed between Ruci and his child; failed to secure unsupervised parenting time for Ruci at two court dates, which increased the time missed between Ruci and his child; filed frivolous Orders to Show Cause; improperly advised Ruci that it might be possible for him to take his child out of the country; and
asserted to the referee in the Underlying Action that Jewell was using electronic filing when no such electronic filing system was available in Queens County Family Court at that time. Clearly, Ruci has pleaded that but for Jewell’s actions and/or inactions in the Underlying Action, Ruci
would have been reunited with his child earlier than he was. Also, Ruci has adequately pleaded that he was denied visitation time, be it supervised or unsupervised. “

Hudson Yards LLC v Segal  2020 NY Slip Op 06353 Decided on November 05, 2020 Appellate Division, First Department is another case in which the brutal “but for” causation rule in legal malpractice ends a case.

“To recover damages for legal malpractice, the plaintiff must establish that the attorney (1) “failed to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community” and (2) that “such negligence was a proximate cause of the loss in question” (Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [1st Dept 2007]). The IAS court properly held that defendants met their prima facie burden of entitlement to summary judgment on the issues of negligence and proximate causation, and that plaintiff, in opposition, failed to raise a triable issue of fact.

The evidence submitted with the motions establishes that plaintiff and nonparty Fortress Credit Corp. (Fortress) did not privately come to a final settlement agreement, whether oral or otherwise, prior to the foreclosure sale. At most, plaintiff and Fortress agreed to some proposed settlement terms outside of defendant counsel’s presence. As there was no admissible evidence showing that plaintiff had entered into a settlement agreement with Fortress prior to the sale, plaintiff’s claim that defendants failed to advise him that the alleged settlement agreement was unenforceable fails.

In any event, the IAS court properly found that defendants’ advice to plaintiff regarding the sale was reasonable, even if they did not specifically advise him that the proposed agreement was unenforceable (see Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 667 [1st Dept 2017]). As the IAS court found, defendants’ decision to preserve the ability to reach a favorable settlement, while at the same time continuing to pursue its strategy of fighting a deficiency judgment on valuation in the event that settlement could not be reached, was an inherently reasonable one. Plaintiff’s hindsight criticism of this strategy does not support his malpractice claim (see Brenner v Reiss Eisenpress, LLP, 155 AD3d 437, 438 [1st Dept 2017]).

Finally, plaintiff has failed to raise an issue of fact surrounding proximate cause. As the IAS court found, the allegations underlying plaintiff’s malpractice claim were couched in terms of “gross speculations” about future events, without the requisite factual basis to support the allegation (see Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 [1st Dept 1999], lv denied 94 NY2d 759 [2000]).”

Olsen v Smith 2020 NY Slip Op 06214 [187 AD3d 675] October 29, 2020
Appellate Division, First Department is a familiar trope.  Supreme Court and the Appellate Division look over a pro-se complaint and find it wanting.

“In this action for legal malpractice, plaintiff alleges that defendants’ mishandling of her defense in a Family Court proceeding brought against her by nonparty John Doe resulted in her settling a separate civil action and other disputes with Doe on unfavorable terms. The court correctly determined that the complaint is devoid of allegations from which it could be inferred that any negligence by defendants in their handling of the family court proceeding was the “but for” causation of any damages (see Dweck Law Firm v Mann, 283 AD2d 292, 293 [1st Dept 2001]; see also Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 [1st Dept 1999], lv denied 94 NY2d 759 [2000]). Moreover, many of the factual allegations in the complaint, including those concerning the adjournment of a preliminary conference and defendants’ alleged wrongful withdrawal from representation, are flatly contradicted by documentary evidence in the record and therefore are not entitled to be considered as true (see Beattie v Brown & Wood, 243 AD2d 395 [1st Dept 1997]).

Plaintiff’s breach of fiduciary duty and breach of contract claims were properly dismissed as duplicative of the legal malpractice claim (see Courtney v McDonald, 176 AD3d 645, 646 [1st Dept 2019]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Renwick, J.P., Gesmer, Kern, Singh, JJ.”

In this case, the claim was that the attorney should have inquired about insurance that Plaintiff had, rather than taking the case and charging the client for representation that the insurance company would have provided.

The jury found otherwise.  in Cohen v Sive, Paget & Riesel, P.C.,  2020 NY Slip Op 06050 [187 AD3d 634] October 27, 2020  the Appellate Division, First Department affirmed.

“The jury’s verdict that defendant did not commit legal malpractice rested on a fair interpretation of the evidence (see KBL, LLP v Community Counseling & Mediation Servs., 123 AD3d 488, 489 [1st Dept 2014]; Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [1st Dept 2007]). The jury heard significant evidence about the standard of care an attorney owes to a client, including the information and explanations that an attorney should give to clients about submitting claims to their insurer. There was a sufficient basis for the jury’s crediting the testimony of defendant’s expert witnesses about the standard of care and placing less weight on plaintiffs’ expert’s testimony. The jury also heard evidence about the scope of defendant’s representation, as well as evidence that, shortly after it was retained, defendant advised plaintiffs to submit a claim to their insurer and that plaintiffs rejected that advice. There was also expert testimony that certain rights that defendant allegedly failed to explain to plaintiffs either belonged to plaintiffs’ insurer or otherwise would not have applied in this case.

The jury’s conclusion that defendant did not breach the standard of care by failing to advise plaintiffs that their insurer might have a duty to provide a defense also rests on a fair interpretation of the evidence. The jury heard expert testimony that the claim against plaintiffs would not be covered by the policy and that plaintiffs’ insurer would not have provided a defense.”

Plaintiff hired Defendant attorney to represent him in both a criminal and a civil matter.  The civil matter went wrong, and Plaintiff sued.  Defendant argued that you may not sue a criminal defense attorney absent a showing of “actual innocense.”  True enough, but…

“The court properly denied the motion to dismiss the first cause of action for legal malpractice. Plaintiff adequately plead that defendant, who was retained to represent him in a criminal matter, owed him a duty of care with respect to legal advice he allegedly offered in connection with a pending civil action (see Jane St. Co. v Rosenberg & Estis, 192 AD2d 451 [1st Dept 1993], lv denied 82 NY2d 654 [1993]). While the parties entered into a written retainer agreement stating that the legal representation was for the criminal matter, on this motion to dismiss the written retainer does not eliminate any possibility that defendant owed plaintiff a duty of care in connection with legal advice he had given and was continuing to give regarding the separate civil matter, insofar as plaintiff relied upon it within that matter rather than in the criminal matter (see Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 482 [1st Dept 2018]). Accordingly, there is no documentary evidence here sufficient to require dismissal of the legal malpractice claim pursuant to CPLR 3211 (a) (1) (see IMO Indus. v Anderson Kill & Olick, 267 AD2d 10 [1st Dept 1999]). Issues of fact precluding dismissal exist as to whether defendant’s legal malpractice was the proximate cause of any damages suffered by plaintiff in the civil matter and as to whether plaintiff suffered cognizable damages in that matter. Concur—Gische, J.P., Oing, Scarpulla, Mendez, JJ.”

Plaintiffs often wonder how their damages are computed.  One possible element of damages are the legal fees spent in defense of the underlying case. This is the central lesson of Rudolph v. Shayne Dachs  and it is the less of 83 Willow, LLC v Apollo 2020 NY Slip Op 05843 [187 AD3d 563] October 20, 2020 Appellate Division, First Department as well.

“For purposes of the motion, defendant does not dispute that his alleged failure to advise plaintiff of the consequences of a contingency clause in its contract to sell property was negligent, but contends that plaintiff cannot demonstrate that his negligence was the “but for” causation of ascertainable damages. On this record, triable issues of fact exist as to whether, but for defendant’s failure to inform plaintiff’s principal that it could be locked into the sale agreement in perpetuity if it did not obtain municipal approval for redevelopment, it would not have entered into the contract as written and would have avoided litigation with the buyer who sued for specific performance (see Leggiadro, Ltd. v Winston & Strawn, LLP, 151 AD3d 413 [1st Dept 2017]; Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437, 438-439 [1st Dept 2010]). Plaintiff’s alleged damages, as they relate to legal expenses defending the specific performance action, may be found to be proximately related to defendant’s negligent advice related to the issue of the contingency clause (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443).”