The Statute of limitations is an embodiment of a social policy which, in essence keeps the world turning.  Old, stale claims have an expiration date, and little opportunity exists to keep them alive.  Even continuous representation, in the legal malpractice setting, has significant limits.  Mehra v Morrison Cohen LLP  2020 NY Slip Op 33234(U) October 2, 2020
Supreme Court, New York County Docket Number: 159868/2019 Judge: O. Peter Sherwood is an example of the statute in play in a commercial setting.

“Plaintiffs assert claims for:
1) Malpractice against all defendants, as defendants failed to exercise the required degree of care in drafting the Holding operating agreement to protect Mehra’s voting and control rights, and possibly also his economic rights.
2) Breach of fiduciary duty against all defendants, for recommending a change to the Holding operating agreement which favored Teller over Mehra and for advising Teller on how to deprive Mehra of his rights to the business. ”

“Defendants argue that, since almost all of the allegations of their malpractice were for events in or before 2014, the only conduct alleged within the three-year statute of limitations is their participation in the 2016 operating agreement revisions, which is alleged only upon information and belief. Invoices subpoenaed from EOS show legal services relating to the operating agreement were performed only by Allen & Overy, not defendants (Memo, NYSCEF Doc. No. 17, at 8-9). Accordingly, defendants argue any claims related to their work in 2014 is barred by the statute of limitations or superseded by the intervening counsel by Allen & Overy in 2016. Even if the Firm did work on the 2016 revisions, the provisions at issue here were in the 2014 originals, meaning that the 2016 work (if there was any) was not the proximate cause of plaintiffs’ injuries. ”

“However, plaintiffs have not alleged damages from the alleged 2016 revision work by the defendants. Plaintiffs effectively allege defendants worked on the revisions and failed to correct the alleged 2014 malpractice. However, defendants allege they were injured by the “loss of voting power and control over business operations” (Opp at 20), which occurred when the operating  agreements were signed in 2014. Plaintiffs also note that “[h]ad Defendants exercised the appropriate degree of care in implementing their clients’ request for an equal partnership, [the injuries] could not have happened” (id. at 10). Accordingly, the malpractice claim accrued in 2014. As far as plaintiffs allege the statute of limitations was tolled by the continuous
representation doctrine, they have not alleged continuous representation. “The continuous representation doctrine . . . recognizes that a person seeking professional assistance has a right to
repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered. The doctrine also appreciates the client’s dilemma if required to sue the attorney while the latter’s representation on the matter at issue is ongoing (Shumsky v Eisenstein, 96 NY2d 164, 167 [2001]
[internal citations omitted]). “Application of the continuous representation . . . doctrine is nonetheless generally limited to the course of representation concerning a specific legal matter . .
. . Instead, in the context of a legal malpractice action, the continuous representation doctrine tolls he Statute of Limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice (id. at 168 [internal citations omitted]). Plaintiffs have not alleged continuous representation, but two instances of representation. They have not alleged representation on this matter was continuous from 2014
through 2016. Accordingly, the malpractice claim is barred by the statute of limitations and fails as untimely. “

As we have noted many times, real estate issues prompt a great number of legal malpractice cases.  There is both real money and real complicated litigative issues in big NY real estate and it often ends in legal malpractice disputes.  Genesis REOC Co., LLC v Poppel 2020 NY Slip Op 33230(U) October 1, 2020 Supreme Court, New York County Docket Number:  156733/2017 Judge: Carol R. Edmead  is one of them.

Genesis is a limited liability company formed in 2011 by Jazz Realty, through its member nonparty Andrew Stone (Stone), and by nonparty Genesis Member, LLC (Genesis Member),
through its member nonparty Karim Hutson (Hutson). The Company was formed for the purpose of investing in “low and moderate-income housing projects backed by tax credit equity investors in New York and New Jersey.” (First Amended Complaint (FAC), iJ 14 [NYSCEF No. 77].) Jazz Realty was “the investor partner and contributed capital to fund the Company’s investment activities …. ” (Id., ii 17.)

Pursuant to the Company’s limited liability agreement (Agreement) dated January 27,2011, Hutson was appointed as the manager of the Company and was responsible for identifying
potential investments for approved projects. (Id., ii 18.) Hutson was also required to receive Jazz Realty’s approval prior to using the Company’s funds for any investment opportunity and was prohibited from referring these opportunities to any other party, including himself, prior to obtaining Jazz Realty’s approval.

Poppel and Williams are both lawyers and were members of Berman Indictor and Pecker & Abramson PC, respectively. The F AC alleges that defendants acted as counsel for the
Company from the date the Company was formed in 2011 through July 2017, when defendants resigned their representation. (Id., ii 23.) Plaintiffs state that Jazz Realty, acting on the advice of defendants, invested over three million dollars to fund the Company’s approved investments. Defendants allegedly represented to plaintiffs that the Company would earn “developer fees, construction revenues, and profits … ” (Id., ii 25.)”

“In December 2015, plaintiffs commenced a separate action against Hutson and his affiliated companies (the Hutson Action), seeking to recover profits earned in connection with
the Company’s projects. Plaintiffs alleged, among other claims, an individual and derivative claim against Hutson for breach of fiduciary duty. This cause of action stated that, as manager, Hutson breached his fiduciary duty to the Company by, among other things, “[m]isappropriating Company investments for his own benefit …. ” (Berman Indictor’s exhibit B, Complaint, ii 154 [NYSCEF No. 85].) Plaintiffs claimed that, as a result ofHutson’s breaches, “the Company and Jazz Realty have been damaged in an amount to be proved at trial but in no event less than $41,306,574.” (Id., ii 155.) ”

“As noted above, plaintiffs settled in the Hutson Action. During oral argument the court asked plaintiffs, “[w]hat is your best case law for that proposition, that if the party is not made
whole, the settlement agreement is not a bar to the malpractice claim?” (See tr at 34.) However, the only case law presented by plaintiffs, or any party, in the context of a settlement agreement and a claim for legal malpractice pertained to when the lawyers provided counsel to plaintiff in negotiating a settlement agreement. (See e.g. Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]) (“A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel.”) However, in this situation, the court finds these decisions inapplicable, as defendants were not plaintiffs’ counsel in the Hutson Action.
Further, plaintiffs’ arguments that they have made “carve outs” in the settlement agreement in order to bring claims against counsel is misplaced, as defendants were not parties to
the settlement agreement. (See tr or oral argument at 33.) In addition, plaintiffs’ declarations in the settlement agreement that they are accepting less than 100% of their damages or their assertions during oral argument that Hutson is not performing his obligation under the agreement, are irrelevant. (See also plaintiffs’ memo oflaw at 19 noting that Hutson has refused to make any payments.) Plaintiffs voluntarily chose to settle in the Hutson action. Plaintiffs brought the Hutson Action to recover for many of the same damages as alleged
in the present action. Plaintiffs argue that their damages are not speculative and can be calculated after full disclosure of the books and records. As it stands, the court agrees with defendants that part of plaintiffs’ requested damages, as they relate to the settlement agreement, are speculative. Plaintiffs have not provided the specific amount of money that they expect to receive under the terms of the settlement agreement as written and it is unclear from the settlement agreement what damages remain.

As noted, “[t]he object of compensatory damages is to make the injured client whole.” (Campagnolla v Mulholland, 76 NY2d 38, 42 [1990].) In addition to the legal expenses above,
the loss sustained by plaintiffs as a result of defendants’ negligence is alleged to be, in pertinent part, the improperly diverted revenues and unauthorized taking of capital that was also sought as damages in the Hutson Action. Thus, if ultimately successful in this action, plaintiffs’ recoverable damages would be limited to the amount of remaining damages not accounted for in the settlement agreement. “To hold otherwise would go beyond the usual purpose of tort law to compensate for loss sustained and would give the client a windfall opportunity …. (internal quotation marks and citation omitted).” (McKenna v Forsyth & Forsyth, 280 AD2d 79, 83 [4th Dept 2001].) “

A shocking practice in an otherwise virtuous area of law has recently bobbed up to the surface.  Lee v Leeds, Morelli & Brown, P.C.  2020 NY Slip Op 33374(U) September 30, 2020 Supreme Court, Kings County Docket Number: 8651/05 Judge: Ingrid Joseph is the latest case in which the Leeds Morelli paradigm of “anti-discrimination” litigation is exposed.  Another example is Dowe v. Leeds Brown Law, P.C. et al   .  In these two cases Plaintiffs alleged that there was a fake representation of them by Leeds Morelli.  They alleged that Leeds Morelli partnered with the employer in order to bring and settle large number of discrimination cases at a discount for the employer and a detriment for the employees, but with a profit for the law firm.  From Lee:

“Plaintiffs commenced this putative class action seeking damages for breach of fiduciary duty, legal malpractice and fraud, among other claims, stemming from a global settlement agreement between LMB and Bear. Plaintiffs contend that the agreement was secretly designed to materially benefit both LMB and Bear while depriving plaintiffs of the right to bring legal actions against Bear for race, age and gender discrimination by compelling plaintiffs to settle for capped and inadequate settlement awards.

In or around early 2001, LMB was consulted by several Bear employees,including plaintiffs Lee and Roe, regarding employment discrimination claims against Bear. Plaintiffs each  executed an undated retainer agreement authorizing LMB to represent them with respect to “negotiating a settlement” against Bear. On or about October 1, 2001, LMB and Bear agreed to a global settlement award and process which was memorialized in a “Dispute Resolution Agreement by Single Settlement Payment” (DRA), dated October 17, 2001. The DRA set forth a global settlement amount of $3 million. From the global settlement amount, Bear agreed to pay LMB’s one-third contingency fee of $1 million that the 52 claimants  represented by LMB (including plaintiffs) would otherwise be required to pay from their settlement allocations. The remaining $2 million in settlement funds was to be distributed among the claimants according to the settlement process set forth in the DRA. Under this process, each of the 52 participating claimants would receive an up-front $2,500 payment for releasing their right to bring any claims and/or causes of action against Bear, and the $1.87 million remaining in the global settlement fund would then be divided among the claimants basedupon the merits of each individual claim. The merits of each claim would be examined by an independent evaluator, selected by LMB, who would thereafter issue a settlement
award to the claimant, if merited, based upon submissions from LMB on behalf of the claimant and from Bear in opposition. If any amount remained in the settlement fund
following distribution of all claimants’ awards, such sums would be donated by Bear to the New York Times 9/11 Fund.”

“Plaintiffs commenced the instant action on March 23, 2005. In their complaint, plaintiffs set forth causes of action against LMB and LMB attorneys for breach of fiduciary duty (first), fraud (third) and legal malpractice (sixth), against Bear and the John Doe defendants for aiding and abetting breach of fiduciary duty (second), aiding and abetting fraud (fourth), constructive fraud (fifth) and tortious interference with a contract (seventh) Plaintiffs’ eighth and final cause of action is interposed against all defendants for “commercial bribery.” The gravamen of plaintiffs’ claims is that LMB and Bear agreed to a mutually beneficial global settlement agreement, which (1) capped the amount of damages Bear would pay to settle the claims, which in tum capped the amounts LMB’s clients could recover under the settlement process, (2) guaranteed a generous $1,000,000 legal fee to LMB and (3) protected Bear from negative publicity which may have ensued from litigation of employment discrimination claims in court.  Plaintiffs allege that LMB “duped” their clients into waiving relief in court and into participating in the “sham” settlement process for “arbitrary” and “inadequate” settlement awards. Plaintiffs contend that because the DRA made the $1 million legal fee contingent on LMB persuading the 52 claimants to execute releases and participate in the “sham” settlement, a conflict of interest was created between LMB and its claimant/ clients. ”

“By order dated January 8, 2020, this court dismissed the complaint in its entirety. The court found the first cause of action for breach of fiduciary duty untimely as it accrued, at the latest, upon plaintiffs’ execution of the superseding retainer agreements on October 2, 2001 and October 3, 2001, wherein plaintiffs expressly assented to the global settlement process pursuant to the DRA and waived any other claims or causes of action against Bear. The court applied the three-year statute of limitations as it determined the remedy sought by plaintiffs was purely monetary in nature. Because the instant action was not commenced until March 23, 2005, the breach of fiduciary cause of action was barred by the statute of limitations. In addition, the court found that the cause of action for breach of fiduciary duty was subject to dismissal as duplicative of the legal malpractice cause of action, because both claims were based on the same facts and did not allege distinct damages. In the January 8, 2020 order, the court found that the legal malpractice cause of action was also barred by the statute of limitations, since it accrued at the latest, on March 6, 2002 and March 7, 2002, when plaintiff Lee and plaintiff Roe, respectively, signed and swore to the “Evaluation Allocation and Release Agreement[s]” accepting the settlement awards. The court also dismissed the cause of action for fraud as it determined that plaintiffs failed to plead that they suffered actual pecuniary loss or and “out-of- pocket” loss as the result of the alleged fraud. “

Attorneys took on a jail beating case only to find that the most major injury, amputation of a testicle, was undertaken due to an incidental diagnosis of cancer, not due to trauma from the beating.  So, can they just quit?  Court says no.

Scott v Leventhal  2020 NY Slip Op 33276(U) September 30, 2020 Supreme Court, New York County Docket Number: 656211/2017 Judge: Debra A. James distinguishes the difference between withdrawal pre-complaint and after.

“Decedent, Patrick Fleming (Fleming or ·decedent) retained the legal services of defendants on September 8, 2015, after he was allegedly assaulted by a New York City Department of Correction officer on August 16, 2015, while incarcerated at Rikers Correctional Facility (second amended complaint, New York St Cts Electronic Filing System [NYSCEF] Doc No. 5 at ~~ 1, 6, 12). Defendants were retained to file a personal injury lawsuit on Fleming’s behalf (retainer agreemen~, NYSCEF Doc No. 239 ~
2). Fleming alleged that as a result of the assault, his right testicle had to be amputated (NYSCEF Doc No. 5 fl 7). Medical imaging as a result of Fleming’s assault revealed right testicular cancer (id. 1 10). ”

On October 17, 2016, defendants wrote to Fleming and declined to bring a lawsuit on his behalf (withdrawal letter, NYSCEF Qoc No. 246). Fleming later passed away due to complications from cancer {NYSCEF Doc No. 5 fl 11). His mother, as administrator of his estate, eventually brought suit in federal court for the alleged incident (federal court filing, NYSCEF Doc No. 273; Scott deposition tr, NYSCEF Doc No. 261 at 96) .”

“Notwithstanding the above, the court finds unconvincing defendants’ argument that they were obligated to withdraw after their investigation showed that the underlying tort claim was without merit (~ee Willis v Holder, 43 AD3d 1441, 1441 [4th Dept 2007] [conclusory assertiori that the underlying action lacks merit is insufficient to establish good and sufficient cause for withdrawal]). While it may be arguable that decedent’s amputation was due to cancer and not the assault, the
medical records indicate that the cancer was found incidentally
and subsequent to imaging performed as a result of the
assault. The fact that a lawsuit is of “questionable liability,
limited damages, and a likely unfavorable trial result not
the type of impairment of the attorney-client relationship that
permits withdrawal of counsel” (Countryman v Watertown Hous.
Auth_,_, 13 Misc 3d 632, 633 [Sup Ct, Jefferson County 2006]). ”

 

Strategic choices in medicine and law have always been given great deference by the Courts.  “Medicine is an art, not a science” is often heard in Med Mal trials.  Strategic choices by attorneys may cover a vast area of their acts at trial, in hearings and elsewhere. Wormser, Kiely, Galef & Jacobs LLP v Frumkin  2020 NY Slip Op 33172(U) September 28, 2020
Supreme Court, New York County Docket Number: 160569/2013 Judge: Paul A. Goetz is a good example.

“Turning to plaintiffs motion, plaintiff first argues that they are entitled to a summary judgment order dismissing defendants’ remaining  counterclaim for legal malpractice because their alleged negligent conduct is not actionable as it concerns reasonable strategic choices. Further, plaintiff argues that defendants cannot possibly show that but-for plaintiffs alleged mistakes in the underlying arbitration proceeding they would have obtained a more favorable result. Finally, plaintiff argues that the counterclaim should be dismissed because defendants did not suffer any damages as a result of the alleged malpractice as Mr. Frumkin subsequently sold the condominium units in a sham transaction to an entity owned by his mother, bought out Mr. Persaud, and then
resold the units for a generous profit.

It is well-established that an action for legal malpractice requires proof of an attorneys’negligence, a showing that the negligence was the proximate result of the injury, and evidence of actual damages. Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301A.D.2d63, 67 (1st
Dep’t 2002). While an attorney may be held liable for conduct which falls below the ordinary skill and knowledge commonly possessed by a member of the profession, “retrospective complaints about the outcome of defendant’s strategic choices and tactics, without demonstrating that those exercises of judgment were so unreasonable at the inception as to have manifested professional incompetence” are not actionable. Rodriguez v. Fredericks, 213 A.D.2d 176, 178 (1st Dep’t 1995). Thus, “[a]ttomeys may select among reasonable courses of action in prosecuting their clients’ cases without thereby committing malpractice.” Dweck Law Firm v. Mann, 283 A.D.2d 292, 293 (1st Dep’t 2002). ”

“However, as discussed in the reply affidavit of plaintiff’s expert Mr. Chertoff, the fatal flaw of defendants’ argument and their expert affidavit is their reliance on hindsight and the conclusions drawn by the arbitrators in their decision, to evaluate plaintiffs strategic decisions at the time of the arbitration proceeding. Affidavit of Gregory H. Chertoff sworn to on August 26, 2020, para. 2. This is not the appropriate standard for evaluating an attorneys’ conduct for purposes of a
malpractice claim. Rather, plaintiffs conduct must be evaluated in the context in which it was made, in comparison to the reasonable skill and knowledge commonly possessed by similarly situated attorneys, and without the knowledge of how the arbitrators ultimately ruled. See
Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430 (1st Dep’t 1990); see also Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301A.D.2d63, 69 (1st Dep’t 2002). “

A classic example of a case which probably could not be won.  It was lost because of discovery deficiencies by the attorney.  Woman goes to wax salon, has wax applied to her eyebrows.  Eventually she is diagnosed with herpes and HPV.  Salon used and re-used same sticks, and had a pot of wax which was endlessly re-used for all the patrons.  However, her brows were never tested nor was the wax.  Really no way to prove the wax caused the outbreak, even though it could have logically.  Hence, even though the attorney failed in discovery, no “but for” proximate cause in  Schoenberg v Dankberg  2020 NY Slip Op 33133(U)  September 25, 2020  Supreme Court, New York County  Docket Number: 159404/2016
Judge: Robert D. Kalish.

“Plaintiff retained Defendant Dankberg as her attorney to represent her in the underlying matter of Schoenberg v. Li Xia Gu, No. 013961/2012 (Nassau County) (“the underlying action”), in which she sued a nail salon and its owner and employees (“the underlying defendant salon”) alleging that she sustained personal injuries “as a result of her eyebrows negligently [being] waxed by [the salon]” on October and November of 2009. (Complaint in the underlying action, NYSCEF Doc. No. 111, generally & ¶ 12.) The complaint in the underlying action (“the underlying complaint”) alleged that the salon “negligently, recklessly, and carelessly used a  hazardous contaminated wax.” (Id. ¶ 16.) The underlying complaint further alleged that the wax was contaminated because the salon used the “same vat of wax, which remained heated in a ‘crock pot’ at the facility for all patrons and customers until and after it became unfit for human use.” (Id. ¶ 18.) The underlying complaint further alleged that “[f]resh wooden sticks, like ‘popsicle sticks,’ were used … to apply the wax, but the same sticks were dipped into the same wax used by all patrons, thereby negligently becoming contaminated for further use by humans.” (Id. ¶ 19.) The underlying complaint further alleged that as a result of, inter alia, the salon’s negligence, Plaintiff suffered personal injuries. (See, e.g., id. ¶ 77.) The underlying complaint alleged eleven causes of action and asked for an award of compensatory damages in the amount not less than $1,000,000 for each cause of action plus punitive damages. (See generally id.) ”

“According to Plaintiff’s complaint in the instant legal malpractice action (“the instant complaint”), on August 30, 2013, the defendants in the underlying action filed a motion for an
order, pursuant to CPLR 3126, dismissing the underlying action due to Plaintiff’s failures to comply with her discovery obligations in the underlying action. (Complaint, NYSCEF Doc No
144, ¶ 17.)1

Further, according to the instant complaint and as submitted into the record, in an order dated November 26, 2013, Plaintiff was ordered to serve said discovery responses within 30 days of the date of the order in the underlying action. (Id. ¶ 18.) The order noted that “[i]n the event that the plaintiff fails to comply with the directives of this [o]rder, plaintiff’s complaint shall be dismissed upon the Movant’s submission of an Affirmation of Non-Compliance.” (Id., citing Order dated Nov. 26, 2013, NYSCEF Doc No 133, Ex. A.)

Further, according to the instant complaint, a compliance conference was held in the underlying action on February 27, 2014, where counsel for the underlying defendant informed
the court that “none of the discovery responses listed in the court’s November 26, 2013 order had been provided by [underlying Plaintiff/Plaintiff].” (Id. ¶ 22.) According to the instant complaint, Plaintiff’s attorney Dankberg was not present at said conference, but “instead hired a per diem attorney who was not familiar with [P]laintiff’s case.” (Id. ¶ 23.) ”

“On the first element, Defendant Dankberg fails to present sufficient evidence in admissible form establishing as a matter of law that he acted with the sufficient skill and care of
an ordinary member of the legal profession. While uncontradicted testimony by itself can be sufficient to establish entitlement to summary judgment, it strains credulity that an attorney in Dankberg’s position would not keep one piece of documentation establishing that he notified Plaintiff that he was requesting information that was in the possession of Plaintiff and/or attempted to communicate with Plaintiff or Plaintiff’s father in order to to avoid the underlying action being dismissed pursuant to CPLR 3126. (Cf. Gonzalez v Ellenberg, 5 Misc 3d 1023(A) [Sup Ct 2004] [“[C]onclusory, self-serving statements with no expert or other evidence which would tend to establish, prima facie, that they did not depart from the requisite standard of care is not sufficient to sustain this burden.”].) The Court further notes that Defendant has failed to sufficiently explain why the underlying defendant’s CPLR 3126 motion was unopposed by Dankberg although Dankberg took on the underlying case and he further verified the underlying Plaintiff/Plaintiff’s complaint against the underlying defendant stating that he had reviewed “documents, files and books and records maintained by plaintiff.” (NYSCEF Doc No 111 [Attorney Verification].) Moreover, there is no evidence or any assertion that Dankberg communicated to his client that the action was dismissed pursuant to CPLR 3126, and that he discussed any potential next steps with his client thereafter. (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 434-35 [1st Dept 1990]; cf. Simons v Petrarch LLC, 2017 N.Y. Slip Op. 30457[U], 34 [N.Y. Sup Ct, New York County 2017] [internal citation omitted].)

Nevertheless even if Defendant Dankberg was negligent in failing to respond to the discovery requests which then resulted in the dismissal of the underlying action, this Court finds
that the instant action must be dismissed because Defendant Dankberg has demonstrated that his conduct was not the proximate cause of Plaintiff’s damages, as there would be no reasonable basis for a fact finder in the underlying action to award judgment in favor of Plaintiff. (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015].) “

Clients often intuit the departure from good practice in their cases.  Referring attorneys generally pinpoint the mistake.  Few consider how and whether they can prove that “but for “the mistake or departure, there would have been a better result.  Katsoris v Bodnar & Milone, LLP
2020 NY Slip Op 05040 Decided on September 23, 2020 Appellate Division, Second Department is a good example.

“Here, the complaint failed to adequately allege actual, ascertainable damages. The general allegations that, as a result of the alleged acts of malpractice, the plaintiff was caused to incur “additional legal fees,” and caused to suffer “financial damages and expense,” “adverse financial consequences,” and “direct financial damage,” were all conclusory and inadequate to constitute “actual, ascertainable damages” (Dempster v Liotti, 86 AD3d at 177). To the extent that the complaint addressed the plaintiff’s settlement, the complaint alleged that the defendant’s negligence in its handling of the divorce action caused the plaintiff to suffer “direct prejudice . . . in both trial and/or settlement,” and that, but for such negligence, the plaintiff “would have fared far better at trial and/or in settlement of the Divorce Action.” These allegations are conclusory and lack any factual support, and they are inadequate to sufficiently allege that the stipulation of settlement that the plaintiff entered into with his former wife was “effectively compelled” by the mistakes of counsel (Rau v Borenkoff, 262 AD2d 388, 389; see Benishai v Epstein, 116 AD3d 726, 728). “The fact that the plaintiff subsequently was unhappy with the settlement [he] obtained . . . does not rise to the level of legal malpractice” (Holschauer v Fisher, 5 AD3d 553, 554). “Moreover, the plaintiff failed to plead specific factual allegations showing that, had he not settled, he would have obtained a more favorable outcome” (Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 758; see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083; Dweck Law Firm v Mann, 283 AD2d 292, 293; Rau v Borenkoff, 262 AD2d at 389). Accordingly, we agree with the Supreme Court’s determination to grant that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, alleging legal malpractice.”

 

Lawyer is hired to represent buyer in an apartment building purchase.  Purchase goes bad because instead of a regular multiple dwelling setting, the building is actually a Single Room Occupancy (SRO) which are an old form of a hotel.  Buyer does not get what it expected.  Claim against attorney is that it did not read the title report with all the consequences one might expect.  After some litigation the attorneys third-party the seller in Wiles v JLC & Assoc. September 22, 2020 Supreme Court, New York County Docket Number: 150706/2017 Judge: Kathryn E. Freed.

JLC alleged that Murphy knew that these representations were false, that she knew plaintiffs would rely on them, and that she made the same in order to induce plaintiffs to enter into the PSA and to induce JLC to advise plaintiffs to enter into the same. Doc. 29 at pars. 16, 17.Specifically, JLC claimed that Murphy knew that: 1) the RSI claimed the right to remain in the building pursuant to the Rent Stabilization Code (“RSC”); 2) the RSI had asserted this right in the Housing Court proceeding commenced in 2014; 3) the RSI obtained a vacatur of a stipulation of settlement in the Housing Court proceeding pursuant to which stipulation the RSI had agreed to vacate the building; 4) the DOB refused to approve Murphy’s plan to convert the building to a two-family dwelling and that the HPD violations against the building prevented her from obtaining a C of 0 for a two-family dwelling. Doc. 29 at par. 18. JLC further claimed that Murphy falsely stated under oath that she believed that the Housing Court proceeding was still pending. Doc. 29at par. 18.”

“As noted above, plaintiffs allege that their damages were caused by JLC’s legal malpractice insofar as JLC “negligently fail[ed] to discover and disclose material information relating to the [b ]uilding that was readily available, by failing to advise [plaintiffs] of the consequences of [the RST’s] rent-stabilized status, and by failing to negotiate fair terms on behalf of [the plaintiffs] for the [e]scrow [a]greement, [thereby breaching] its obligation to provide competent legal services
and representation to [plaintiffs].” Doc. 1 at par. 72. Also noted above is that JLC claims in its third-party complaint that any damages sustained by plaintiffs were caused in whole or in part by the fraud and negligent misrepresentations by Murphy. Doc. 29 at pars. 22-24, 26-30. Since JLC
clearly alleged that “the breach of duty by [Murphy had] a part in causing or augmenting the injury for which contribution is sought” (Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d at 603), Murphy’s motion to dismiss the contribution claims must be denied. “

Melendez v Renfroe, Driscoll & Foster, LLP  2020 NY Slip Op 32600(U) August 11, 2020 Supreme Court, New York County  Docket Number: 157344/2019 Judge: W. Franc Perry tells a familiar story.  Familiar as in family.  Legal malpractice can take place in any legal setting, whether injury,  inheritance, invention or intellectual settings.  Siblings fighting over ineritance is a frequent trope.  This case is about whether the mother and father favored the two other siblings over plaintiff.

“This legal malpractice action arises out of the Defendants’ representation of Plaintiff in an action before the Surrogate’s Court, County of Suffolk, regarding the disposition of certain assets of Luis Melendez, Plaintiff’s father. Following an adverse decision to Plaintiff issued by the Honorable John M. Czygier, Jr., Plaintiff brings this action alleging malpractice against
Defendants. Defendants Renfroe, Driscoll & Foster LLP and Patrick Foster (collectively, “Foster”) move to dismiss the complaint as against them.”

“At trial, Plaintiff alleged that he began to assume control of Adel over time through sweat equity and controlled M. Brothers since its inception, that his father had signed a stock power transferring 50% of M. Brothers (that belonged to Adelaida at the time) to him on March 21, 2008, and that his parents had all along intended for him to inherit Adel. (NYSCEF Doc No. 31 at 1.) Plaintiff also alleged that, six days before he passed and while suffering from ALS, dementia, cancer, and a broken hip, his father signed a gift tax return indicating that he had transferred ownership of Adel to Plaintiff.

After the 4-day bench trial, Judge Czygier, Jr., ruled in favor of Adelaida, holding that Plaintiff failed to meet his burden in proving that Luis gifted the assets to Plaintiff. In pertinent
part, Judge Czygier, Jr. indicated that to believe Plaintiff’s narrative would require “a suspension of belief,” that he found Plaintiff’s testimony incredible, that Plaintiff forged his father’s signature, and that Plaintiff had fabricated a document arranging a lease between the two asset companies.

Plaintiff alleges that the Defendants were negligent: 1. in failing to subpoena Adelaida or call her to the stand; 2. in failing to call Alan Gellerman, the accountant for the asset companies, to the stand; 3. in failing to call unspecified employees of the asset companies to the stand; and 4. in failing to submit the gift tax return into evidence (collectively, the “alleged malpractice”).”

“Here, Plaintiff fails to set forth a cause of action for legal malpractice because he cannot show that “but for” the alleged malpractice, he would have prevailed in the underlying action. For one, Plaintiff alleges that Foster should have called Adelaida to the stand, specifically to question her about her deposition testimony regarding her and her husband’s intention to give Adel to the Plaintiff in lieu of the $500,000.00 given to his two brothers. (NYSCEF Doc No. 37 at 9-10.) Plaintiff indicates that this is a party admission that should have been brought up at trial. However, the deposition testimony immediately prior to the excerpt cited by Plaintiff in his opposition only indicates that Adelaida’s intention was to bequeath Adel to Plaintiff after both her and her husband had passed away. (NYSCEF Doc No. 26 at 109.) There are no specific factual allegations that any line of questioning of Adelaida would have altered Judge Czygier, Jr.’s ultimate decision on the testamentary intent of Adelaida and her husband.

Further, Judge Czygier, Jr. found the Plaintiff’s testimony regarding his purported ownership of Adel and M. Bros incredible for several reasons. First, Plaintiff admitted to signing
a State Liquor Authority application, a stock purchase agreement, and a resignation letter all on his father’s behalf, which fell far short of meeting the clear and convincing standard required to establish donative intent. Second, Judge Czygier, Jr. specifically discounted the credibility of the gift tax return in question because it was “purportedly executed on October 13, 2013 . . . six days before the decedent died, at a time when, by any measure, his physical and mental condition was deteriorating.” (NYSCEF Doc No. 31 at 21.) There are no specific factual allegations indicating that Gellerman’s testimony would have swayed Judge Czygier, Jr. to believe that the transfer was legitimate, especially considering that the Judge specifically considered the gift tax return and knew the extent of Gellerman’s alleged involvement in its preparation.

In light of the documentary evidence and after accepting as true all facts alleged in the complaint, Plaintiff has failed to show that “but for” the alleged malpractice, he would have
prevailed in the underlying action. The complaint fails to state a cause of action for malpractice because it does not sufficiently allege that Defendants’ negligence was the proximate cause of Plaintiff’s damages. Because Plaintiff has failed to establish proximate cause, dismissal is required. (Leder v Spiegel, 31 AD3d at 268.)”

One might engage in a plethora of unacceptable acts, yet not be responsible for legal malpractice.  How can this be?  Might one delay a case for two years and still be safe from a law suit?  Can one arrange for a client to take a 23% interest rate litigation loan, yet still avoid a claim?  The answer is definitely “yes.”

Graham v Law Offs. of Spar & Bernstein, P.C.  2020 NY Slip Op 32563(U) August 7, 2020 Supreme Court, New York County Docket Number: 155996/2019 Judge: W. Franc Perry  is a good example.    “Plaintiff commenced this action on June 17, 2019, setting forth three causes of action. First, Plaintiff alleges that S&B deviated from good and accepted practice by failing to commence Action 1 for two years and by failing to make a motion for summary judgment in a case where there was a presumption of liability because Plaintiff’s vehicle was struck in the rear. Second, Plaintiff alleges that S&B deviated from good and accepted practice by advising her to enter into the funding agreements with Golden Pear. Third, Plaintiff alleges that S&B deviated from good and accepted practice by failing to arbitrate the Plaintiff’s denial of No-Fault benefits, causing her to rely on her private health insurer for her neck surgery, resulting in a $60,000.00 medical lien. ”

“In Plaintiff’s first claim for legal malpractice, she alleges that Defendants deviated from good and accepted practice by failing to file a motion for summary judgment. She alleges that
“[a]s a result of the defendants’ negligence in not obtaining summary judgment at the earliest possible time, the plaintiff lost the benefits of having summary judgment on liability at a sooner time.” (NYSCEF Doc No. 2 at ¶ 41.)

While it is true that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence (Quiros v Hawkins, 180 AD3d 500, 501 [1st Dept 2020]), Plaintiff has failed
to demonstrate a meritorious cause of action for legal malpractice. Plaintiff fails to include any specific factual allegations to support her claim that “but for” the Defendants’ failure to
expeditiously file a motion for summary judgment, she would have achieved a more favorable result. (See Crawford v Himmelstein, 2011 WL 2552326 [Sup Ct, NY County 2011], citing Wexler v Shea & Gould, 211 AD2d 450 [1st Dept 1995].) Rather, Plaintiff merely alleges in a conclusory fashion, that the motion for summary judgment could have been brought at an earlier time and that would have constituted a benefit to her. (Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1185–86, [3d Dept 2015].) Further, the prior action settled for the full amount of the prior defendants’ Geico policy; thus, a more favorable result was not possible. ”

“Geico chose to discontinue Plaintiff’s No-Fault benefits because an independent medical examination caused Geico to determine that no further treatment was necessary. Plaintiff alleges that Defendants’ choice to not arbitrate that decision constitutes legal malpractice. Defendants respond that the choice to not arbitrate was a strategic one, because if they had lost at the arbitration, Plaintiff would have been collaterally estopped from using her injuries as evidence in the forthcoming litigation.

“[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment, where the proper course is open to reasonable doubt. Thus, ‘selection of one among several reasonable courses of action does not constitute malpractice.’” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990], citing Rosner v Paley, 65 NY2d 736, 738 [1985].) “To establish entitlement to the protection of the attorney judgment rule, an attorney must offer a ‘reasonable strategic explanation’ for the alleged negligence.” (Ackerman v Kesselman, 100 AD3d 577, 579 [2d Dept 2012].)

Here, Defendants’ course of action in not arbitrating the denial of benefits was reasonable. Collateral estoppel applies in the context of arbitration decisions regarding the denial of No-Fault benefits. (Acevedo v Holton, 239 AD2d 194 [1st Dept 1997]; Uptodate Medical Services, P.C. v State Farm Mutual Auto. Ins. Co., 23 Misc 3d 42 [2d Dept 2009]; Rozewski v  Krautmann, 151 AD3d 1945 [4th Dept 2017].) Thus, as alleged in the Complaint, Defendants’ decision does not constitute malpractice.”