New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

A Novel Question of Law in a Legal Malpractice Setting?

Posted in Legal Malpractice Cases

It’s rare, very rare, to come across what the Court thinks might be a novel question of law, especially in a legal malpractice setting.  Generally, the triumvirate of claims found in a legal malpractice setting are legal malpractice, breach of contract and breach of fiduciary duty,  In FTI Consulting, Inc. v CT Miami, LLC  2018 NY Slip Op 31923(U)  August 6, 2018  Supreme Court, New York County  Docket Number: 654062/2016  Judge: Melissa A. Crane we see a new participant:  ordinary negligence.  To date, courts have generally relegated any negligence claim against an attorney to “legal malpractice” rather than “negligence.”

“The following facts are from the third-party complaint (TPC). Akerman, a law firm, represented CT Miami in connection with a certain Florida litigation (the Florida litigation) (TPC, ¶2-3, 5). While that matter was ongoing, Akerman recommended that CT Miami hire an e-discovery company, plaintiff FT! Consulting, Inc. (FTI) to provide support services (TPC, ¶8-9). CT Miami hired FTI in September 2013 (id., i!7). CT Miami claims at that time the estimated cost of FTl’s services the parties agreed to was $4,900 (id., iii! 8-10). CT Miami also claims that “Akerman explicitly confirmed” that it was only obligated to pay the $4,900 estimate amount (id.,¶ 15). ”

“Akerman first argues that Florida’s two-year statute oflimitations for legal malpractice (Fla. Stat. Ann. § 95.11 [4]) bars all five causes of action applicable in this matter pursuant to New York’s “borrowing statute” (CPLR § 202). This argument relies upon plaintiffs claims as all sounding in legal malpractice. However, CT Miami asserts no claim for malpractice and takes no issue with the legal services Akerman rendered in the Florida litigation. Instead, CT Miami alleges a claim for simple negligence, separate and apart from Akerman’s legal services.

New York courts have previously recognized the distinction between professional malpractice and ordinary negligence in the medical malpractice context (e.g., Yaniv v Taub, 256 AD2d 273, 274 [1st Dept 1998] [“failure to communicate significant medical findings to a patient or his treating physician is not malpractice but ordinary negligence”]; McKinney v Bellevue Hosp., 183 AD2d 563, 565 [pt Dept 1992] [permitting claim of simple negligence where a malpractice action barred]). “The critical question in determining whether an action sounds in medical malpractice or simple negligence is the nature of the duty to the plaintiff which the defendant is alleged to have breached” (Stanley v Lebetkin, 123 AD2d 854, 854 [2d Dept 1986] [citations omitted]). A claim for simple negligence is “restricted to those cases where the alleged negligent act is readily determinable by the trier of the facts on common knowledge,” whereas a claim for malpractice is one that typically requires expert testimony or other specialized knowledge (Hale v State of New York, 53 AD2d 1025, 1025 [4th Dept 1976]). In other words, “[t]he distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter or medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” (Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603 [internal quotation marks and citation omitted]).

Although this may be an issue of first impression for New York courts in the context of legal malpractice, the same logic applies to the distinction between simple negligence and legal malpractice as with respect to medical malpractice. An example typically used to demonstrate the distinction in the medical context is that of a nurse spilling hot water on a patient. The fact that a medical professional causes the injury does not tum this act of simple negligence into a medical malpractice.

Similarly, the mere fact that a negligence claim is asserted against an attorney, without more,
does not render it a claim for legal malpractice. Here, the act complained off – the hiring of a
company that allegedly overcharged for unauthorized work – does not require any special legal
skill and can be “assessed on the basis of the common everyday experience of the trier of the
facts” (id. at 603).

The cases cited by Akerman in support of its legal malpractice argument are distinguishable. Calcutti v SBU, Inc., a Southern District of New York case cited by Akerman for the principle that, “[l]egal malpractice, as opposed to ordinary negligence, is the appropriate cause of action to bring against an attorney who allegedly performed his/her professional duties negligently,” involved a complaint that asserted both a malpractice and a negligence claim against an attorney (224 F Supp 2d 691, 700 [SD NY 2002]). Notably, Calcutti permitted both claims to go forward (id. at 701). Santiago v 370 Broadway Assoc., which Akerman cites for the general proposition that, “[ m] al practice is the negligence of a professional toward a person for whom a service is rendered” actually holds only that, “an insurance broker is not capable of committing ‘professional malpractice”‘ (264 AD2d 624, 624-25 [1st Dept 1999], affd as modified, 96 NY2d 765 [2001]). The general proposition cited in that decision does not turn every claim against an attorney into legal malpractice any more than it would tum every claim against a doctor into medical malpractice.

That CT Miami is bringing this action against its former law firm is insufficient, on its own, to tum this action into one for legal malpractice. Accordingly, Akerman does not get the benefit of the shorter statute of limitations period applicable to malpractice claims and Florida’s longer four year statute of limitations applies to the claims (Fla. Stat. § 95.11 et seq.). Thus, the action is timely.”

A Terrible Injury, But Which Law Firm May Be Accountable?

Posted in Legal Malpractice Cases

We discussed Gilbo v Horowitz  2018 NY Slip Op 31844(U)  July 31, 2018  Supreme Court, New York County  Docket Number: 158727/2017  Judge: Margaret A. Chan last week in the context of ripeness in a multiple -attorney setting.  Beyond whether the case is ripe against prior attorneys while the underlying case is pending, is the question of how to break out (or apportion) blame in a multi-attorney setting.  First, some of the facts from the car accident case:

“Plaintiff is an attorney and represents himself in this matter. In the underlying personal injury action, plaintiff suffered devastating injuries when he was struck by a motor vehicle driven by non·party Crandall Glasglow as he walked across Flatbush Avenue in Brooklyn, New York, on July 21, 2012. Plaintiff alleges that he suffered a traumatic brain injury, :fracture of the left humerus and the neck vertebrae, and a severed brachial plexus of the left arm, among other injuries (NYSCEF Doc. No. 1- Verified Complaint at 1J 11). Plaintiff spent nine weeks in a medically induced coma and seven months recuperating in the hospital (id at 1111 12·13).

On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement with defendant Mark L. Bodner, P.C. (Bodner) and simultaneously executed a Power of Attorney authorizing his mother to pursue a personal injury claim related to the accident on his behalf (id at 1J 18). Bodner negotiated asettlement with Glasglow’s insurer on September 21, 2012, for the purported limit of the policy- $25,000.00 (id at 1J 20). Bodner attempted to deliver the net proceeds of that settlement to Gilbo, but Gilbo refused it (id at 1J 28). Bodner later filed a Notice of Claim against the City of New York, which is stamped received on October 18, 2012 (NYSCEF Doc. No. 8- Notice of Claim).

For his claim against the City of New York, Gilbo contacted another attorney, non-party Sherwin Suss, who was then of counsel to defendant Dillon, Horowitz & Goldstein, LLP (DHG), in November 2012 (id at ~ 29). Plaintiff executed a retainer agreement with DHG on March 13, 2013 (NYSCEF Doc. No. 18-Retainer). Despite the retainer, plaintiff appeared self-represented at a GML §50h hearing held with the City of New York on October 16, 2013 (NYSCEF Doc. No. 7). DHG commenced
an action on plaintiffs behalf against the City of New York in Kings County Supreme Court under the Index no. 506293/2013 (the Kings County action). DHG characterized its retainer agreement as one to “investigate the viability of Plaintiffs potential cause of action against the City” (NYSCEF Doc. No. 30 – Dillon Aff at~ 13). DHG made a FOIL request, conducted a site visit with plaintiff, and timely filed the Kings County action to preserve plaintiffs claim against the City (id). In November 2014, Suss stopped working for DHG. Three years later, DHG moved to be relieved as counsel in the Kings County action, which was granted on December 1, 2017. Court records reflect that Gilbo represents himself in that Kings County action. ”

“DHG argues that the legal malpractice claim also fails because the complaint fails to articulate that its conduct was the “but for” cause of any alleged damages. It also argues that there are no damages as the Kings County action is pending. This court concurs on both arguments.

Recovery for legal malpractice requires proof of three elements: (1) attorney negligence; (2) the negligence was the ‘proximate cause’ of the actual loss sustained; and (3) quantifiable damages (Cosmetics Plus Group, Ltd v Traub, 105 AD3d 134, 960 NYS2d 388 [1st Dept 2013]). There is no dispute that the Kings County action remains pending. As such, no adverse decision exists that would suggest that “but for” defendants’ alleged negligence, plaintiff would have had a more favorable outcome. Plaintiff, at this juncture, has not sustained any actual damages attributable to the alleged malpractice; plaintiffs claim is not ripe. Consequently, his claim for legal malpractice is dismissed with leave to replead (see Flintlock Const. Services, LLP v Rubin, Fiorella & Friedman LLP, 110 AD3d 426, 427 [1st Dept 2013]; Parametric Capital Mgt., LLC v Lacher, 15 AD3d 301, 302 [1st Dept 2005]; Kahan Jewelry Corp. v Rosenfeld, 295 AD2d 261 [1st Dept 2002]). Plaintiff withdraws his claim for specific performance (second cause of action) in his opposition (NYCSEF Doc No. 43 – Plaintiffs Opposition 11 17). In any event, that cause of action is not cognizable. A judge of the Kings County Supreme Court permitted DHG to be relieved in that action. Thus, this court could not make an award of specific performance in contravention of another court’s determination to relieve DHG. Plaintiffs cause of action for specific performance is permitted to be
withdrawn. “

Judiciary Law 487 Has a Very High Hurdle to Clear

Posted in Legal Malpractice Basics

Many JL § 487 cases are brought; few get to be considered for damages and far fewer ever get to the trier of fact. Yerushalmi v Schoenfeld  2018 NY Slip Op 05623  Decided on August 1, 2018  Appellate Division, Second Department is an example.

“In 2002, Malka Yerushalmi (hereinafter Malka) commenced an action for a divorce and ancillary relief against the plaintiff herein. The defendants herein represented Malka in the divorce action from 2011 to 2013. In 2004, the Supreme Court granted Malka’s motion for pendente lite relief. Over a period of nine years, the plaintiff made six different motions seeking to modify the pendente lite order. The Supreme Court repeatedly denied his motions, and, in 2012 and 2013, it awarded attorneys’ fees to the defendants. Two of the orders denying modification were appealed to this Court, and this Court affirmed (see Yerushalmi v Yerushalmi, 136 AD3d 809; Yerushalmi v Yerushalmi, 82 AD3d 1217). In both cases, this Court determined that no grounds for modification existed. In Yerushalmi v Yerushalmi (136 AD3d 809), this Court also affirmed the award of attorneys’ fees to the defendants.

In 2014, the plaintiff commenced this action, alleging that Malka had lied on her 2011 statement of net worth by stating that the value of her interest in certain family assets was unknown, and that, by certifying the statement of net worth, the defendants had violated Judiciary Law § 487. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court granted the motion. The plaintiff appeals from so much of the order as directed dismissal of the first through fourth causes of action, and from so much of a judgment entered upon the order as dismissed those causes of action.

We agree with the Supreme Court’s determination to grant that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the first through fourth causes of action, which alleged violations of Judiciary Law § 487. Even as amplified by the plaintiff’s affidavit and supporting evidence, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted “with intent to deceive the court or any party” (Judiciary Law § 487[1]; see Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d 591, 592-593; Jaroslawicz v Cohen, 12 AD3d 160, 160-161).”

Breach of Fiduciary Duty and Overbilling

Posted in Legal Malpractice Cases

One of the most common reflexive decisions by courts is to dismiss a breach of contract as well as a breach of fiduciary duty as duplicitive of the cause of action for legal malpractice.  If the claims of breach arise from the same facts and damages are similar then they are duplicitive.  However, when there is a legal malpractice claim that an asset has been lost and a breach of fiduciary duty claim that there has been overbilling, then they should not be duplicitive.  Mostly, however, trial courts dismiss without too much contemplation.

Menkes v Ballard Spahr LLP   2018 NY Slip Op 31834(U)  August 1, 2018  Supreme Court, New York County  Docket Number: 151471/2017  Judge: Robert R. Reed takes the time to look at the genesis of damages.

“Plaintiff, Sheryl Menkes (“Menkes”), a lawyer, sues her former attorneys, Ballard Spahr
LLP (“Spahr”) and John B. Harris (“Harris”), for legal malpractice, negligence and breach of
contract. Defendants now move, pursuant to CPLR 3124, to compel discovery. Menkes
opposes, arguing the cost of production is burdensome and should be borne – at least in part – by
defendants. Menkes, in addition, cross-moves to 1) serve a supplemental summons and
amended complaint; 2) add a claim for improper and excessive billing; 3) disqualify Spahr from
serving as counsel for itself, prose, and Harris, and 4) dismiss the defendants first, second and
fourth counterclaims. Defendants oppose. ”

“Menkes also moves to serve a supplemental summons and amended complaint. In
general, leave to amend pleadings, pursuant to CPLR 3025(b ), should be liberally granted where
there is neither undue prejudice nor unfair surprise. Permitting leave to amend is a discretionary
function of the trial court and should be freely granted “absent a showing that the facts
supporting the amendment do not support the purported claim or claims” (see Loewentheil v.
White Knight, LTD., 71 AD3d 581) (internal quotation omitted). Here, Menkes seeks leave to
add a cause of action for improper and/or excessive legal fees, which is separate and apart from
the other causes of action (see Cherry Hill Market Corp. v. Cozen O’Connor P. C., 118 AD3d
514 [holding that plaintiffs’ third cause of action, alleging that defendants breached their
fiduciary duty because they either collected and/or billed plaintiffs for excessive and/or unearned
fees, should not have been dismissed as duplicative of the malpractice causes of action]).
Accordingly, plaintiff is granted leave to serve a supplemental summons and amended _complaint
to add the improper and/or excessive fee cause of action. “

A Terrible Injury, Lots of Litigation Problems and It’s Still Too Early

Posted in Legal Malpractice Cases

Time tick by, constantly and rapidly.  Gilbo v Horowitz  2018 NY Slip Op 31844(U)  July 31, 2018
Supreme Court, New York County  Docket Number: 158727/2017  Judge: Margaret A. Chan is an example of how there can be a terrible injury, yet no clear legal malpractice landscape.  Besides the confusion over which attorney might be responsible, there is the question of timing.

“Plaintiff is an attorney and represents himself in this matter. In the underlying personal injury action, plaintiff suffered devastating injuries when he was struck by a motor vehicle driven by non·party Crandall Glasglow as he walked across Flatbush Avenue in Brooklyn, New York, on July 21, 2012. Plaintiff alleges that he suffered a traumatic brain injury, :fracture of the left humerus and the neck vertebrae, and a severed brachial plexus of the left arm, among other injuries (NYSCEF Doc. No. 1- Verified Complaint at 1J 11). Plaintiff spent nine weeks in a medically induced coma and seven months recuperating in the hospital (id at 1111 12·13).

On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement with defendant Mark L. Bodner, P.C. (Bodner) and simultaneously executed a Power of Attorney authorizing his.mother to pursue a personal injury claim related to the accident on his behalf (id at 1J 18). Bodner negotiated a settlement with Glasglow’s insurer on September 21, 2012, for the purported limit of the policy- $25,000.00 (id at 1J 20). Bodner attempted to deliver the net proceeds of that settlement to Gilbo, but Gilbo refused it (id at 1J 28). Bodner later filed a Notice of Claim against the City of New York, which is stamped received on October 18, 2012 (NYSCEF Doc. No. 8- Notice of Claim).”

“Recovery for legal malpractice requires proof of three elements: (1) attorney negligence; (2) the negligence was the ‘proximate cause’ of the actual loss sustained; and (3) quantifiable damages (Cosmetics Plus Group, Ltd v Traub, 105 AD3d 134, 960 NYS2d 388 [1st Dept 2013]). There is no dispute that the Kings County action remains pending. As such, no adverse decision exists that would suggest that “but for” defendants’ alleged negligence, plaintiff would have had a more favorable outcome. Plaintiff, at this juncture, has not sustained any actual damages attributable to the alleged malpractice; plaintiffs claim is not ripe. Consequently, his claim for legal malpractice is dismissed with leave to replead (see Flintlock Const. Services, LLP v Rubin, Fiorella & Friedman LLP, 110 AD3d 426, 427 [1st Dept 2013]; Parametric Capital Mgt., LLC v Lacher, 15 AD3d 301, 302 [1st Dept 2005]; Kahan Jewelry Corp. v Rosenfeld, 295 AD2d 261 [1st Dept 2002]). “

Not A Huge Amount; Not Many Good Choices

Posted in Legal Malpractice Cases

Marder’s Antique Jewelry, Inc. v Bolton  2018 NY Slip Op 31828(U)  July 31, 2018
Supreme Court, New York County  Docket Number: 152926/2012  Judge: Arlene P. Bluth is an excellent example of how a “legal malpractice” case becomes an unsuccessful legal malpractice case.  Practitioners and the general public are quick (and often accurate) in pointing out a departure from good practice.  A common mistake is to stop there and declare it “legal malpractice.”  It is not yet legal malpractice without the additional three elements:  proximity, “but for” causation and ascertainable damages. Hence, mistakes are not enough.

“This legal malpractice action arises from an underlying case (“Underlying Case”)
regarding Plaintiffs attempt to recover jewelry or its monetary value from Plaintiffs cousin
Toby Fischer (“Ms. Fischer”) and the Provident Loan Society of New York (“Provident”)
(NYSCEF Doc. No. 32 at 2). Plaintiff alleges that Defendant committed legal malpractice by,
inter a/ia, failing to prevent Provident from selling the jewelry. ”

“Plaintiff has been in the jewelry business for several decades. In 2004, Plaintiff took 39
items of antique jewelry from its inventory and lent them to Ms. Fischer so she could photograph
them in connection with her clothing business (NYSCEF Doc. No. 2 at 2). Instead ofretuming
all the jewelry, Ms. Fischer pawned 38 items to Provident for a loan of $16,400 (NYSCEF Doc.
No. 36 at 10).
Marder consulted with Defendant and alleges that Defendant told him that he could get
the jewelry back by paying back Ms. Fischer’s loans to Provident or he could pay Defendant
legal fees to get the jewelry back. Plaintiff chose to pay Defendant rather than paying Provident his cousin’s debt (or a negotiated lesser amount) and in November 2005, Plaintiff retained
Defendant to sue Ms. Fischer and Provident. The Underlying Complaint seeks to recover the
jewelry (replevin) or its monetary value (conversion). A preliminary injunction restraining the
sale of the jewelry was obtained. ”

“Even though Plaintiff was unable to recover the jewelry in the Underlying Case, he still
would have been able to recover the full monetary value of the jewelry, which would have been
sufficient as Plaintiff did not claim that the jewelry was sentimental or otherwise worth more
than just its monetary value (Ross v. Louise Wise Services. inc., 8 NY3d 478, 489, 836 NYS2d
509, 515-516 (2007] [holding that “compensatory damages are intended to have the wrongdoer
make the victim whole – to assure that the victim receive fair and just compensation
commensurate with the injury sustained”]). Marder is an expert at valuing antique jewelry and
could have established the value of the jewelry without inspecting the jewelry itself 1 Because
Plaintiff did not need the actual jewelry to assess its value, he was not prejudiced from the sale of
the jewelry. lfthe Underlying Case had gone to trial, then Plaintiff would have been able to
obtain a money judgment for the full value of the jewelry, regardless of whether the jewelry was
sold; this means that Plaintiff did not suffer ascertainable and actual damages, which is the crux
of a legal malpractice claim.
Any claim by Plaintiff that he desired to repossess the jewelry more than he desired to
obtain its monetary value is inconsistent with his actions. Plaintiff originally made the decision
not to pay Ms. Fischer’s loans to recover the jewelry and instead chose to pay a lawyer and commence the Underlying Case. While Marder was understandably reluctant to pay his cousin’s
debt to recover his own jewelry, pursuing legal action instead of promptly recovering the jewelry
was a business decision made by Plaintiff, not Defendant. Likewise, Plaintiffs decision to settle
instead of going to trial to prove the value of the jewelry and obtain a judgment therefor was a
business decision by Plaintiff. Plaintiffs business decisions do not constitute Defendant’s legal
malpractice. “

Courts Simply Do Not Like Judiciary Law 487

Posted in Uncategorized

There are very few successful Judiciary Law § 487 cases.  Courts stretch and bend to find a way around what appears to be actual deceit by attorneys.  Take Matneja v Zito  2018 NY Slip Op 05298  Decided on July 18, 2018  Appellate Division, Second Department as an example.  Here it is alleged that a law firm knew that its client registered a building under a fake name, and when the owners were sued for rent overcharges, refused to tell the DHCR that the name was fake.  Deceit?  No, says the Second Department.

“In 2009, the plaintiff, a former tenant of a rent-stabilized building owned by the defendant Rosa Zito and her now deceased husband, Mario Zito, obtained an order from the Division of Housing and Community Renewal (hereinafter DHCR) for rent overpayments. While the plaintiff had named Mario Zito as the owner of the building in the rent overcharge complaint, the DHCR identified the owner during the proceeding, and in the final order, as the defendant JPR Zito, based on an inaccurate annual registration summary for the building from 2008. The defendant Horing Welikson & Rosen, P.C. (hereinafter HWR), who represented Rosa (Mario had since died) and JPR Zito throughout the proceeding, never advised the DHCR of the error. The plaintiff, who was not represented by counsel at the DHCR proceeding, did not discover the error until he attempted to enforce the order. He claims that JPR Zito does not exist and, consequently, he cannot collect any of the money awarded to him. In 2010, the plaintiff requested that the DHCR amend its order so as [*2]to reflect that the building was owned by Rosa, but the agency refused because, in 2008, the building was registered as owned by JPR Zito.

The plaintiff commenced this action against Rosa, JPR Zito, and HWR, seeking a judgment that would allow him to enforce the DHCR order against Rosa. As is relevant to this appeal, the plaintiff alleged that HWR violated Judiciary Law § 487 by failing to disclose that Rosa owned the building and allowing the DHCR to issue an unenforceable order against a nonexistent entity. HWR moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, and in the order appealed from, the Supreme Court granted the motion. The plaintiff appeals from so much of the order as granted that branch of HWR’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it.

On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez,84 NY2d 83, 87). Judiciary Law § 487 provides that an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is guilty of a misdemeanor, and “forfeits to the party injured treble damages, to be recovered in a civil action.” Here, under the particular circumstances of this case, and even accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible inference, we agree with the Supreme Court’s determination to grant that branch of HWR’s motion, made pursuant to CPLR 3211(a)(7), to dismiss the complaint insofar as asserted against it (see Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524; Costalas v Amalfitano, 305 AD2d 202, 203-204; Hansen v Caffry, 280 AD2d 704, 705).”

Judicial and Quasi-Judicial Immunity in Professional Malpractice Cases

Posted in Legal Malpractice Cases

Litigants often want to sue a court-appointed official, whether it be a guardian ad litem, an attorney for the child, an accounting expert or another kind of expert practitioner who is inserted into the case.  When those practitioners are attorneys, the question of privity arises; when they are not, the question of whether they are immune from suit needs to be examined. In Saucedo v Pierangelo  2018 NY Slip Op 31750(U)  July 24, 2018  Supreme Court, New York County  Docket Number: 160330/2016 Judge William Franc Perry explains judicial immunity for a “parenting coordinator.”

“Plaintiff commenced this negligence/malpractice action against defendant, Roger Pierangelo, a Nassau County Parent Coordinator, during the pendency ofa custody action in Nassau County Supreme Court. In the custody action, the Nassau County Supreme Court so ordered a stipulation on January JO, 2012 between the child’s parents directing, among other things, that the parties retain a Parent Coordinator, defendant herein.

Defendant now moves for an order pursuant to CPLR §321 l(a)(7), dismissing the complaint on the grounds that it fails to state a cause of action and on the grounds that the Eleventh Amendment bars plaintiff from seeking damages against defendant, since he was, at all times stated within the complaint, acting in his quasi-official capacity as a Court-approved Nassau County Parent  Coordinator, and as such should be afforded judicial immunity from the instant action. Defendant also seeks an order pursuant to CPLR §321 l(a)(J); CPLR §321 J(d); and CPLR §321 l(a)(S), dismissing the action on the grounds that it is time barred by the applicable statute of limitations. ”

“Defendant’s motion to dismiss the complaint must be granted as plaintiffs action is barred by the doctrine of judicial immunity. It is well settled that individuals serving in judicial capacities as well as those who are delegated judicial or “quasi-judicial” functions are_ immune from civil suits based on any actions taken in their official capacities. See Mosher-Simons v. County of Allegany, 99 N.Y.2d 214, 220, 783 N.E.2d 509, 753 N.Y.S.2d 444 (2002). This judicial immunity privilege is regularly applied to expert witnesses when such witnesses are appointed by the court. See Bridget M v. Billick, 36 A.D.3d 489, 490, 826 N.Y.S.2d 568 (!st Dept. 2007) (holding that “a psychiatrist appointed by the court as a neutral forensic evaluator with the consent of the parties’ attorneys and the children’s Law Guardian in an underlying custody proceeding in Family Court has judicial immunity from suit for malpractice regarding the work he performed”); Finkelstein v. Bodek, 131 A.D.2d 337, 516 N.Y.S.2d 464 (!st Dept. 1987) (“Included within those groups of persons who enjoy immunity for statements uttered in a judicial proceeding are court-appointed experts who are ordered to conduct psychiatric examinations.”); Young v. Campbell, 87 A.D.3d 692, 929 N.Y.S.2d 249 (2nd Dept. 2011) (dismissing a negligence/malpractice action against psychologists and social workers who had been appointed to aid courts in divorce and neglect proceedings because “judicial immunity preclude the plaintiff from recovering damages for negligence or malpractice against them”); Colombo v. Schwartz, 15 A.D.3d 522, 789 N.Y.S.2d 744 (2nd Dept. 2005) (finding that
psychiatric expert “has judicial immunity from suit regarding the work he performed as a court appointed psychiatric expert in connection with the plaintiffs spousal support litigation”).

Public policy supports the protection afforded a court-appointed expert based on immunity from suit. In certain matters, a court may rely on the opinions of experts to fully and fairly determine the issues raised in litigation. Judicial immunity protects judges in the performance of their judicial functions so as to allow them to exercise independent judgment without the threat of legal reprisal, which is “critical to our judicial system.” Ashmore v Lewis. 2012 N.Y. LEXJS 337 (Sup Ct. New York County 2012), citing, Mosher-Simons v County of Allegany, 99 NY2d 214, 219, 783 N.E.2d 509, 753 N.Y.S.2d 444 (2002), quoting Tarter v State of New York. 68 NY2d 511, 518, 503 N.E.2d 84, 510 N.Y.S.2d 528 (1986). “A logical extension of this premise is that ‘other neutrally positioned [individuals], regardless of title, who are delegated judicial or quasi-judicial functions should also not be shackled with the fear of civil retribution for their acts.’.” Id. citing, Mosher-Simons, 99 NY2d at 220, quoting Tarter, supra.
Here, because Dr. Pierangelo was a court-approved Parent Coordinator, serving a quasi-judicial
function, and Judge Bennett relied on his testimony and conclusions in rendering her decision, he is entitled to immunity from suit regarding the work he performed as a court approved Parent Coordinator. As such, this action must be dismissed as it is barred by the doctrine of judicial immunity. “

Even This Is Not A Good Judiciary Law 487 Case

Posted in Legal Malpractice Cases

Judiciary Law § 487 is an ancient part of the common law.  It was enacted only 30 years after the Magna Carta.  That’s as old as it gets in Anglo-American law.  It is sparsely uphold and sparingly applied. Jean v. Chinitz 2018 NY Slip Op 05521  Decided on July 26, 2018 Appellate Division, First Department is an example of how courts shy away from its application.

“In its February 16, 2017 order, the motion court correctly dismissed the first cause of action in the original verified complaint to the extent that it alleged a violation of Judiciary Law § 487, because plaintiff failed to plead the essential elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit (see Judiciary Law § 487; Doscher v Manatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]). Accordingly, the portion of the first cause of action in the original verified complaint that alleges a section 487 violation fails to state a cause of action under the statute (see CPLR 3211[a][7]). Additionally, plaintiff’s section 487 cause of action lacks the requisite particularity (see CPLR 3016[b]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]).”

“Plaintiff argues that the amended verified complaint added allegations of intentional deceit on the part of defendants, as manifested in the form of email communications from defendants to plaintiff falsely assuring him that his medical malpractice case was still active when, in fact, it had been dismissed due to defendants’ failure to comply with three discovery orders of the motion court. Plaintiff further alleges that defendants’ deceit injured him by depriving him of the opportunity to take steps to remedy or vacate the dismissal. Plaintiff’s theory presumes that the trial court justice presiding in the medical malpractice action would have vacated the dismissal and reinstated the action had plaintiff moved for such relief. Given the circumstances under which the medical malpractice action was dismissed, however, involving three separate discovery orders for provision of medical authorizations and physician reports, each of which was disregarded by plaintiff’s attorney, it is, at best, purely speculative that the medical malpractice court would have granted such relief. Thus, plaintiff’s claim of injury lacks sufficient support to sustain his claim that defendants’ false email communications were the proximate cause of any injury to him (see Pellegrino v File, 291 AD2d 60, 64 [1st Dept 2002], lv denied 98 NY2d 606 [2002] [dismissing legal malpractice claim where plaintiffs’ allegations did not, on their face, establish that but for their medical malpractice attorney’s conduct in failing to inform them of the dismissal of their medical malpractice action, they would not have sustained the actual ascertainable harm]).

Moreover, “[t]reble damages awarded under Judiciary Law [section] 487 are not designed to compensate a plaintiff for injury to property or pecuniary interests” (Specialized Indus. Svcs. Corp. v Carter, 99 AD3d 692, 693 [2d Dept 2012] [internal quotations marks omitted]). Rather, “they are designed to punish attorneys who violate the statute and to deter them from betraying their special obligation to protect the integrity of the courts and foster their truth-seeking function'” (id., quoting Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Thus, plaintiff’s advancement of a section 487 cause of action in this case is inconsistent with the purpose of the statute, and dismissal of that cause of action was warranted for that additional reason.

The August 31, 2017 order, which denied plaintiff’s motion to reargue defendants’ motion to dismiss the amended complaint, is appealable, because the court entertained the merits of plaintiff’s motion, thereby effectively granting reargument (see Granite State Ins. Co. v Transatlantic Reins. Co., 132 AD3d 479, 484 [1st Dept 2015]). Upon reargument, however, dismissal of the section 487 cause of action was appropriate, as plaintiff proffered nothing on his reargument motion that would alter the motion court’s original conclusion that plaintiff’s section 487 cause of action was insufficiently pled in his amended verified complaint.

Additionally, by its August 31, 2017 order, the motion court properly denied plaintiff’s alternative motion to amend the complaint, as the proposed pleading did nothing more than add detailed factual allegations as to the times and contents of the email communications in question. As already noted, it failed, however, to correct the fundamental flaw in plaintiff’s section 487 cause of action as previously pleaded, namely, that the injury that plaintiff alleged to have [*3]suffered as the result of defendants’ deceit is speculative, rendering that cause of action invalid (see CPLR 3211[a][7]).”

The Statute of Limitations is Looming…But It Still May Be Too Early!

Posted in Legal Malpractice Cases

What does one do when there is a potential legal malpractice claim against a former attorney, yet the underlying case has not yet been dismissed, though it is mortally wounded?  Does one wait for the inevitable end of the case and then claim that it is not (now) too late to sue the former attorney?  Not a very good choice. The better choice is to commence the action and then ask that it be tolled or stayed until the underlying action is decided.  Sometimes this will benefit the defendant, sometimes not.

Spitzer v Newman  2018 NY Slip Op 05514  Decided on July 25, 2018  Appellate Division, Second Department is an example of the former solution.

“This action alleging legal malpractice arises out of loans the plaintiff made to several people in 2006. In return for the loans, the borrowers signed notes and confessions of judgment. On April 1, 2007, the borrowers allegedly defaulted on the notes. In July 2013, more than six years after the alleged defaults, the plaintiff commenced an action against the borrowers (hereinafter the underlying action). The underlying action is pending in the Supreme Court, Kings County, under Index No. 13874/13.

After commencing the underlying action, the plaintiff commenced this action in May 2015, alleging legal malpractice against the defendant, the attorney who represented him in the loan transactions at issue in the underlying action. The plaintiff alleges that the defendant failed to timely file the confessions of judgment and also failed to timely commence actions to recover on the notes. The defendant moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint as barred by the statute of limitations or, in the alternative, as premature. The Supreme Court denied the motion, but stayed this action pending resolution of the underlying action. The defendant appeals.”

“Here, the defendant’s motion to dismiss under the statute of limitations was based on the premise that his representation of the plaintiff in connection with underlying loan transactions ended in 2009. Accordingly, he contends, the three-year statute of limitations for legal malpractice expired in 2012, before this action was [*2]commenced in 2015 (see CPLR 214[6]). In opposition, however, the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the statute of limitations as to this action (see Grace v Law, 24 NY3d 203, 212; Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789-790; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086; cf. Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048, 1049-1050). Accordingly, we agree with the Supreme Court’s determination that the complaint was not subject to dismissal pursuant to CPLR 3211(a)(1) and (5) (see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790; Louzoun v Kroll Moss & Kroll, LLP, 113 AD3d 600, 601-602).

Moreover, to the extent that the plaintiff’s action may be premature because, while the underlying action is pending, it cannot be determined whether the defendant’s alleged legal malpractice proximately caused the plaintiff to sustain damages (see generally Shumsky v Eisenstein, 96 NY2d 164, 166; Ackerman v Price Waterhouse, 84 NY2d 535, 542-543; Hershco v Gordon & Gordon, 155 AD3d 1006Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796), the Supreme Court providently exercised its discretion in staying this action pending the determination of the underlying action (see Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 22:5 at 119-122 [2009 ed]; cf. Flintock Constr. Servs., LLC v Rubin, Fiorella & Friedman LLP, 110 AD3d 426), rather than granting dismissal of the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.”

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