New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

No Legal Malpractice, No Contribution, No Indemnity Part 2

By Andrew Lavoott Bluestone on Posted in Uncategorized

Yesterday we discussed the legal malpractice aspect of Billiard Balls Mgt. LLC v Mintzer Sarowitz Zeris  Ledva & Meyers, LLP  2018 NY Slip Op 32019(U)  August 17, 2018
Supreme Court, New York County  Docket Number: 153477/2016  Judge: Carol R. Edmead.  It was dismissed, mostly on the basis of lack of privity, backed up by lack of evidence of departure.

Here is the decision on contribution and indemnity:

“Pillinger argues that the common-law indemnification claim must be dismissed as Mintzer cannot be indemnified for its own negligence. In opposition, Mintzer argues broadly that it has stated a valid claim for common-law indemnification. It does not, however, make any specific response to Pillinger’s argument or defend its common-law indemnification claim with any detail.

Generally, common-law indemnification requires one party that is “actively at fault in bringing about the injury” to indemnify another party that “is held responsible solely by operation of law because of [its] relation to the actual wrongdoer” (McCarthy v Turner Constr., ‘”‘ Inc., 17 NY3d 369, 374, 375 [2011] [internal quotation marks and citation omitted]). Here, if Mintzer is found liable to Billiard Balls, it will necessarily be because it has been found liable for its own negligence, not because it was found liable solely by operation of law. Thus, as Mintzer does not state or have a cause of action against Pillinger for common-law indemnification, the branch of the motion that seeks dismissal of that claim must be granted.

The Third-party Complaint alleges that “if the Plaintiff sustained damages … and recovers judgment against Mintzer, such damages will have been brought about in whole or in part as a result of the actions and conduct of Pillinger” (Third-party Complaint, No. 45). Accordingly, Mintzer alleges that, in the event of a verdict in Billiard Balls’ favor, it “shall be entitled to contribution from Pillinger, for an equitable share of any such judgment on the basis of the comparative degree of culpability of [Pillinger]” (id.).

Pillinger contends that the claim for contribution must be dismissed, as it did not cause, contribute to, or share in Mintzer’s alleged malpractice. Mintzer mounts a more detailed opposition to this branch of the motion seeking dismissal of the contribution claim than it does for the other causes of action in the Third-party complaint.

Mintzer argues that Pillinger contributed to Billiard Balls’ alleged damages. Specifically, Mintzer contends that Pillinger failed to make a showing of a meritorious defense, in their opposition to Gershman’s motion for a default judgment, and that failure contributed to Billiard Balls’ damages. Mintzer also claims that Pillinger contributed to the delay to answer because the Second Department noted:
“While [Billiard Balls’ general manager] averred that Billiard did not attempt to
avoid interposing an Answer, he acknowledged that he did nothing with regard to
interposing an answer until after the motion for leave to enter judgment had been
served by the plaintiff, at which time there was still an approximately 30-day
delay between the service of the motion and the date of the verified answer. Thus,
the delay was not attributable to insurance carrier delay, but rather, resulted from
Billiard’s attempts and negotiations to alter the outcome of its insurance carrier’s
disclaimer. Under these circumstances, we find the excuse for Billiard’s default
unreasonable” “

No Legal Malpractice, No Contribution, No Indemnity

By Andrew Lavoott Bluestone on Posted in Legal Malpractice Cases

Billiard Balls Mgt. LLC v Mintzer Sarowitz Zeris  Ledva & Meyers, LLP  2018 NY Slip Op 32019(U)  August 17, 2018  Supreme Court, New York County  Docket Number:  153477/2016   Judge: Carol R. Edmead is an interesting twist on the privity question.

“This is a legal malpractice action arising out of an automobile accident. Defendant Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP (Mintzer) briefly represented the plaintiff Billiard Balls Management (Billiard Balls) in an underlying action in Kings County, Gershman v Ahmad (index No. 18893/12) (the Gershman matter, or the underlying action), where the plaintiff Lizaveta Gershman (Gershman) alleged that Billiard Balls was liable under the Dram Shop Act.

Billiard Balls was insured at the time of the underlying accident by nonparty Capital Indemnity Corporation (Capital). Capital engaged Mintzer to represent Billiard Balls in the Gershman matter. Mintzer entered into two stipulations with counsel for Gershman, both of which extended Billiard Balls’ time to answer the complaint. However, Capital by letter dated December 28, 2012, denied coverage to Billiard Balls 1 and informed Mintzer that it would not be paying Billiard Balls’ legal bills. Mintzer, by letter dated January 25, 2013, informed Gershman’ s counsel that “we have been directed by the carrier not to interpose an Answer on behalf of Billiard Balls Management, LLC” (NYSCEF doc No. 62, ii 2).

On January 11, 2013, Billiard Balls’ time to answer Gershman’ s complaint expired. However, according to Aristotle Hatzigcorgiou (Hatzigcorgiou), a principal of Billiard Balls, Mintzer did not inform Billiard Balls about this deadline (Hatzigcorgiou aff, ii 9, NYSCEF doc No. 87). Nor did Mintzer move to be relieved as counsel. According to Billiard Balls, it did not learn of the deadline to answer until counsel for Gershman served a notice of motion, dated September 30, 2013, for a default judgment against Billiard Balls pursuant to CPLR 3215 (a) (b).

Only after it received the motion for a default against it did Billiard Balls retain thirdparty defendant Pillinger to defend against the motion (id., ii 1 O; see also NYSCEF doc Nos. 88 and 89 [emails between Billiard Balls and Pillinger exchanged in October 2013 ]). Pillinger opposed Gershmn’s motion and cross-moved to compel Gershman to accept Billiard Balls’ proposed answer. By an order dated May 7, 2014 (the May 2014 Order), the trial court in the underlying matter denied Gershman’s motion for a default and granted Billiard Balls’ motion to compel Gershman to accept its proposed answer. More than a year later, the Appellate Division, Second Department, reversed the May 2014 Order (Gershman v Ahmad, 131 AD3d 1104 [2d Dept 2015]). ”

“The salient fact related to Mintzer’s claim of legal malpractice against Pillinger is that Pillinger never represented Mintzer. Pillinger argues that the legal malpractice claim must be dismissed as it has no duty, except to clients, to practice law reasonably well. Indeed, the Appellate Division has held that “New York courts impose a strict privity requirement to claims of legal malpractice” and that “an attorney is not liable to a third party for negligence in performing services on behalf of his client” (Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]; but see Kumar v American Tr. Ins. Co. (49 AD3d 1353 [4th Dept 2008] [finding an exception to this strict-privity rule in cases involving equitable subrogation]).

Neither the Third-party Complaint, nor Mintzer’s opposftion alleges that an exception to the strict privity rule is appropriate because the doctrine of equitable subrogation is applicable. As Mintzer does not allege privity either, it has not stated a cause of action for legal malpractice against Pillinger. Nor does it have a cause of against Pillinger for legal malpractice. It is plain that Mintzer is not in privity with Pillinger and that equitable subrogation is not applicable to the relationship between the two law firms (see Fasso v Doerr, 12 NY3d 80 [2009] [noting that “[i]t is well established that when an insurer pays for losses sustained by its insured that were occasioned by a wrongdoer, the insurer is entitled to seek recovery of the monies it expended under the doctrine of equitable subrogation”]. Accordingly, the branch of Pillinger’ s motion that seeks dismissal of Mintzer’ s claim for legal malpractice must be granted.”

 

 

They Did Not File A WC Claim…Is That Legal Malpractice

By Andrew Lavoott Bluestone on Posted in Legal Malpractice Cases

The question of limited retainers v. handling the entire action for a client comes up in Provenzano v Cellino & Barnes, P.C.  2018 NY Slip Op 32063(U)  August 16, 2018  Supreme Court, Suffolk County  Docket Number: 14-18725  Judge: Joseph C. Pastoressa.  Plaintiff was injured in a motor vehicle accident which Cellino & Barnes took.  They did not file a WC claim for the client who alleged she was injured in a work-related accident.  Malpractice?

“Capetola testified that he did not handle workers’ compensation claims for defendant, and would
refer any such claims to outside counsel. He recalled that during the intake interview with plaintiff, she told him that she was struck by a car after she finished work. He could not recall whether plaintiff inquired about a workers’ compensation claim, or the number of times that he met with plaintiff. Capetola recalled that he assisted plaintiff in filing a no fault insurance claim. Plaintiff did not complain to Capetola about his handling of her accident case at any point during his representation. The retainer agreement indicated that defendant’s representation of plaintiff was “to prosecute [her] claim for injuries and damages sustained as a result of an accident … (and was] limited to all steps necessary to bring the action to trial, verdict or settlement and· does not include appellate practice, Surrogate’s and/or estate work, legal work pertaining to Medicare Set Aside issues, and legal work pertaining to Medicare lien evaluation.” The scope of legal services to be provided included “initial and ongoing investigation of [the] incident; securing potential witnesses and evidence; gathering appropriate medical records, employment records, wage records, education records and other records; drafting, filing, and responding to appropriate court documents; selection and retention of experts and investigators as necessary; appearance at court proceedings, depositions and arbitrations; conducting settlement negotiations; preparing for trial as appropriate and necessary; and maintaining appropriate contact with the client throughout.” ”

“Defendant contends that it was retained to pursue a tort action on plaintiffs behalf; therefore, it
had no duty to bring a workers’ compensation claim and plaintiffs complaint should be dismissed.
Defendant made a prima facie showing that plaintiff retained its services to bring only a negligence
action against the driver of the vehicle that struck her (see Block v Brecher, Fishman, Feit, Heller,
Rubin & Tannenbaum, 301 AD2d 400, 400, 753 NYS2d 84 [1st Dept 2003]). Plaintiff testified that
when she inquired about a workers’ compensation claim, defendant told her that she did not qualify for workers’ compensation benefits and that he “was not going that route.” Additionally, Capetola testified that he did not handle workers’ compensation claims on defendant’s behalf, and that he  generally referred any such claims to outside counsel. There is no indication in the record that Capetola advised plaintiff that he would file a workers’ compensation claim on her behalf and failed to do so. ”

“Accordingly, defendant’s motion for summary judgment dismissing the complaint is granted and
the cross-motion is denied. ”

 

So Many Differences Between the Departments in Judiciary Law 487 Cases

By Andrew Lavoott Bluestone on Posted in Uncategorized

Judiciary Law § 487 is an ancient part of the common law, recently elevated from a mere statute by the Court of Appeals.  That being said, the First and the Second Departments have a major difference in an agreed upon definition.  Here, in Bill Birds, Inc. v Stein Law Firm, P.C.
2018 NY Slip Op 05743  Decided on August 15, 2018  the Appellate Division, Second Department reminds us that “deceit” is the operative word and “chronic, extreme pattern of legal delinquency” is mere surplusage.  The First Department has different requirements.

“The defendants represented the plaintiffs in a trademark dispute against Equity Management, Inc. (hereinafter EMI), and General Motors, Service Parts Operation (hereinafter GM). In 2006, the defendants commenced an action (hereinafter the underlying action) on the plaintiffs’ behalf against EMI and GM in the United States District Court for the Eastern District of New York, alleging breach of a trademark licensing agreement and fraud. The complaint alleged that EMI and GM misrepresented to the plaintiffs that they had an ownership interest in the licensed products which in fact they did not have. On March 31, 2008, the court in the underlying action granted the motion of EMI and GM to dismiss the action on the ground that the parties’ agreement required that disputes relating to the agreement be commenced in the federal or state courts in Michigan.

Thereafter, the plaintiffs commenced the instant action against the defendants asserting causes of action to recover damages for legal malpractice, breach of contract, fraud, and a violation of Judiciary Law § 487. In the complaint, the plaintiffs set forth two alternative theories of liability. Under the theory premised upon legal malpractice, the plaintiffs asserted that they had meritorious claims against EMI and GM, and solely due to the defendants’ negligence, they were unable to recover monetary damages in the underlying action because the defendants failed to commence an action in the proper forum, and the statute of limitations had run. The plaintiffs further alleged fraud and a violation of Judiciary Law § 487, in that the defendants misrepresented the merits of the underlying action to them and to the court in the underlying action, in order to induce the plaintiffs to retain the defendants’ services to prosecute a meritless action and pay legal fees.”

“Contrary to the defendants’ contention, the cause of action alleging a violation of Judiciary Law § 487 was not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Lauder v Goldhamer, 122 AD3d 908, 911; Sabalza v Salgado, 85 AD3d 436, 438).

Nevertheless, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law § 487. A chronic extreme pattern of legal delinquency is not a basis for liability pursuant to Judiciary Law § 487 (see Dupree v Voorhees, 102 AD3d 912, 913). Further, the plaintiffs failed to allege sufficient facts demonstrating that the defendant attorneys had the “intent to deceive the court or any party” (Judiciary Law § 487; see Schiller v Bender, Burrow, & Rosenthal, LLP, 116 AD3d 756, 759; Agostini v Sobol, 304 AD2d 395, 396). Allegations regarding an act of deceit or intent to deceive must be stated with particularity (see CPLR 3016[b]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615; Armstrong v Blank Rome LLP, 126 AD3d 427; Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120). That the defendants commenced the underlying action on behalf of the plaintiffs and the plaintiffs failed to prevail in that action does not provide a basis for a cause of action alleging a violation of Judiciary Law § 487 to recover the legal fees incurred.”

Snow and Ice Cases Are Hard; Legal Malpractice Cases Are Even More Difficult

By Andrew Lavoott Bluestone on Posted in Legal Malpractice Cases

In general, a legal malpractice case based upon a problemed medical malpractice case may be the most difficult litigation case known;  it requires competence in two different spheres, and a lot of experts.  A snow and ice case is difficult for plaintiff, since there are so many defenses.  A legal malpractice case based upon a lost snow and ice case is downright depressing.

Blair v Loduca  2018 NY Slip Op 05744  Decided on August 15, 2018  Appellate Division, Second Department is just such a case.  Plaintiff slipped on ice outside the building where she was employed.  Attorney failed to determine or sue the correct owner.

“In 2008, the plaintiff, who was a security guard for an apartment building, allegedly was injured when she slipped and fell on ice outside the building during a snowstorm. A few months later, she retained the defendants to prosecute an action to recover damages for her personal injuries (hereinafter the underlying action). The Supreme Court granted a motion by the defendant in the underlying action pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction over that defendant, a limited liability company which was formally dissolved in 2007 and did not own the building at the time of the accident. Subsequently, the plaintiff commenced this action against the defendants, alleging that they committed legal malpractice in the underlying action by suing the wrong defendant and by doing so just before the expiration of the statute of limitations, despite having been retained by the plaintiff shortly after the accident.

After discovery in this action, the defendants moved for summary judgment dismissing the complaint on the basis that the underlying action was not viable due to, among other things, the storm in progress rule. The Supreme Court denied the motion, finding that triable issues of fact existed as to whether the property owner created or exacerbated the dangerous condition that allegedly caused the plaintiff’s accident. The defendants appeal.”

“In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v Patmar Props., Inc., 123 AD3d 890, 890; Kruger v Donzelli Realty Corp., 111 AD3d 897; Smith v Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839; Meyers v Big Six Towers, Inc., 85 AD3d 877). “Under the so-called storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” (Marchese v Skenderi, 51 AD3d 642, 642; see Solazzo v New York City Tr. Auth., 6 NY3d 734; Dumela-Felix v FGP W. St., LLC, 135 AD3d 809, 810; McCurdy v Kyma Holdings, LLC, 109 AD3d 799, 799; Smith v Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839, 840; Weller v Paul, 91 AD3d 945, 947; Mazzella v City of New York, 72 AD3d 755, 756). If a storm is ongoing, and a property owner elects to remove snow, the owner must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177; Petrocelli v Marrelli Dev. Corp., 31 AD3d 623; Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546; Chaudhry v East Buffet & Rest., 24 AD3d 493). In such an instance, that property owner, if moving for summary judgment in a slip-and-fall case, must demonstrate in support of his or her motion that the snow removal efforts he or she undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177).

In support of their motion for summary judgment dismissing the complaint in this action, the defendants submitted the plaintiff’s deposition testimony, the deposition testimony of the building’s doorman, the affidavit of a meteorologist, and certified climatological data. These submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress (see Aronov v St. Vincent’s Hous. Dev. Fund Co., Inc., 145 AD3d 648, 649; Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177; Ali v Village of Pleasantville, 95 AD3d 796, 797). Since the defendants made a prima facie showing that the storm in progress rule applied to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident (see Baker v St. Christopher’s Inn, Inc., 138 AD3d 652, 653; Burniston v Ranric Enters. Corp., 134 AD3d 973, 974; Meyers v Big Six Towers, Inc., 85 AD3d 877, 877-878; Alers v La Bonne Vie Org., 54 AD3d 698, 699). The plaintiff failed to raise a triable issue of fact.”

In this Case It Does Not Matter Who Started the Case

By Andrew Lavoott Bluestone on Posted in Legal Malpractice Cases

In the end, it only matters that the law firm was given notice of the claims. D’Angelo v Kujawski   2018 NY Slip Op 05750  Decided on August 15, 2018  Appellate Division, Second Department stands for the proposition that once the law firm had notice of the claims, then substitution of the proper party as plaintiff did not prejudice the law firm.

“In November 2011, the Surrogate’s Court issued letters of limited administration to the plaintiff for the decedent’s estate. Thereafter, the VA denied the plaintiff’s claim submitted by K & K. Subsequently, by letter dated December 20, 2013, the defendant Mark C. Kujawski, on behalf of K & K, informed the plaintiff that K & K had been unable to retain a suitable medical expert and, as a result, would no longer continue to represent her in the case. Thereafter, the plaintiff, pro se, commenced an action in the United States District Court for the Eastern District of New York (hereinafter the District Court) against the United States, inter alia, to recover damages for medical malpractice and wrongful death. An amended complaint was thereafter filed by counsel. The District Court dismissed the federal action, finding that the claims set forth in the amended complaint had not been presented to the VA in the notice of claim.

Thereafter, by summons and complaint dated and filed December 15, 2016, the plaintiff commenced this action to recover damages for legal malpractice against Kujawski, K & K (hereinafter together the appellants), and the other attorney who was engaged pursuant to the retainer agreement. The caption did not state that the plaintiff was suing in her capacity as the administrator of the decedent’s estate. However, the complaint alleged that the plaintiff had been appointed administrator of the decedent’s estate and detailed the history of the appellants’ engagement to pursue a claim against the VA related to the decedent’s death, and the eventual dismissal of the federal action by the District Court. The appellants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the basis that the plaintiff, in her individual capacity, did not have a viable claim against them since the plaintiff engaged K & K in her capacity as the administrator of the decedent’s estate. The plaintiff cross-moved for leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity.

The Supreme Court, inter alia, granted the plaintiff’s cross motion for leave to amend the complaint and denied, as academic, the appellants’ motion to dismiss the complaint insofar as asserted against them.”

“The Supreme Court providently exercised its discretion in granting the plaintiff leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity. The proposed amendment, which only sought to shift the causes of action from the plaintiff in her individual capacity to herself in her representative capacity, was proper since the allegations set forth in the complaint gave the appellants notice of the legal malpractice causes of action being asserted against them in the amended complaint (see United Fairness, Inc. v Town of Woodbury, 113 AD3d at 755; Matter of Highland Hall Apts., LLC v New York State Div. of Hous. & Community Renewal, 66 AD3d at 682; JCD Farms v Juul-Nielsen, 300 AD2d at 446; Plotkin v New York City Tr. Auth., 220 AD2d at 654). Moreover, the appellants’ contention that they would be prejudiced by the amendment because the applicable statute of limitations had expired by the time the plaintiff sought leave to amend the complaint is without merit, since the original complaint was timely filed and gave the appellants notice of the transactions and occurrences pleaded in the amended complaint (see CPLR 203[f]; see also George v Mt. Sinai Hosp., 47 NY2d 170, 178; Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 202).

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion for leave to amend the complaint and, in light of the amendment, properly denied, as academic, the appellants’ motion to dismiss the complaint.”

A Costly Landlord-Tenant Proceeding

By Andrew Lavoott Bluestone on Posted in Uncategorized

This entire episode could have been prevented.  The most likely reason for the problem is that the landlord purchased the building at a foreclosure sale and never became aware that the prior owner had entered into a stunning stipulation.  Beyond that mere fact, it is true that ancient SRO regulations on the UWS created a morass.

JMW 75 LLC v Belkin Burden Wenig & Goldman, LLP   2018 NY Slip Op 31945(U)  August 10, 2018 Supreme Court, New York County  Docket Number: 156352/2017   Judge: Shlomo S. Hagler reaffirms the widely understood principle that subsequent attorneys may not be held responsible for acts of prior attorneys.

“Plaintiff is the owner and landlord of a building located at 166 West 75th Street, New York, New York 10023 (“the Building”) where tenants Claude Debs (“Debs”) and Violaine Galland (“Galland”) (collectively, “the tenants or the respondents”) reside. In 2008, plaintiff’s predecessor-in-interest, 166 West 75th Street LLC (“the Prior Owner”), commenced a summary holdover proceeding in Housing Court against the tenants (166 West 75′” Street LLC v Claude Debs Galland a/k/a Claude Debs and Violaine Debs Galland a/k/a Violaine Galland, Civ Ct, Housing Part, NY County, Nov. 10, 2008, Lebovits, J., Index No. L&T 91914/08). The parties settled the litigation, pursuant to a stipulation dated November 10, 2008, which was “so-ordered” by Hon. Gerald Lebovits (“the Stipulation”) (NYSCEF Doc. No. 9, exhibit C). The Stipulation established Debs and Galland as rent stabilized single room occupancy (“SRO”) tenants (id. 3-4), and provided the landlord with an option to terminate the tenancy in exchange for the payment of $3 .5 million (id., 5-7). In addition, the parties stipulated to include a liquidated damages clause under the following circumstances:

8.  In the event that Landlord brings an action under paragraph 7 (for nonpayment of rent, nuisance or breach of the lease] and fails, the Landlord will pay the Tenant $250,000, irrespective of whether Tenant chooses to vacate the:apartment for the Payment. The Payment shall be as and for liquidated damage’s, it being agreed that Tenants’ damages in such event, would be impossible to’ ascertain, and that the Payment constitutes a fair and reasonable amount under the circumstances and· is not a penalty.
* * *
“12. This Stipulation shall be binding against and shall inure to the benefit of the parties, their agents and successor in interest and shall survive any transfer of  title.”

In 2016, plaintiff commenced a holdover summary proceeding (“the Underlying Holdover Proceeding”} against Debs and Galland seeking possession of one of respondents’ SRO units based upon a claim that respondents-were violating a substantial obligation of the lease and the Housing Maintenance Code by allowing the premises to be occupied by two children (JMW 75 LLC v Claude Debs and Violaine Galland, and “John Doe” and “Jane Doe;” Civ Ct, Housing Part, NY County, Oct.1 i, 2016, Schreiber, J, Index No. L&T61276/16)

Simultaneously; JMW 75 commenced two non-primary residence holdover proceedings with respect to other SRO units occupied by respondents. At the time of the comencement of this proceeding in Housing Court, plaintiff was represented by Kaplain & Duval LLP.

On May -18, 2016, a Consent to Change Attomey form was filed with the Housing Court substituting _Belkin Burden as attorneys of record for petitioner in place and stead of Kaplain & Duval LLP (NYSCEF Doc. No. 9, Exhibits P and 2). On October 11,2016, the Hon. Michelle D. Schreiber granted, in relevant part, respondents’ motions for summary judgment and counterclaim for liquidated damages in the sum of $250,000, pursuant to the Stipulation (NYSCEF Doc. No. 9, Exhibit E).”

“‘The common thread in both Wielaard and the Underlying Holdover Proceeding is one
simple fatal flaw in plaintiffs cause of action. Plaintiff is missing evidence of a violation having
been placed against the premises necessary to warrant any likelihood of success of its argument.
As such, it is beyond cavil that plaintiff knowingly commenced the meritless Underlying
Holdover Proceeding against Debs and Galland which directly precipitated the adverse
determination and ultimately resulted in the triggering of its liability to pay the liquidated
damages of $250,000.00. Simply stated, if plaintiff had not pursued the fatally flawed claitns in
the Underlying Holdover Proceeding, plaintiff would not have faced any liability whatsoever. It
was plaintiffs actions, and not the defendant’s, that caused its own damages.
If plaintiff possessed viable grounds for Underlying Holdover Proceeding, it would not
have subjected itself to liability under the Stipulation’s liquidated damages clause. It is not so
much the alleged ignorance of the existence of the Stipulation and the provision relating to the
trigger of the liquidated damages language as the lack of viability of the proceeding itself that
caused injury to plaintiff. Any argument claiming ignorance would not have changed the course
of the proceeding. Plaintiff would not have prevailed in the Underlying Holdover Proceeding
with the proposed alternative arguments. “

A Series of Unsettling Events with Legal Malpractice to Follow

By Andrew Lavoott Bluestone on Posted in Uncategorized

Brothers-in-law can be a problem to a successful car sales operation as is sadly set forth in Brausch v Devery  2018 NY Slip Op 31929(U) August 7, 2018  Supreme Court, Suffolk County
Docket Number: 11-28918  Judge: Denise F. Molia.  Plaintiff has a nice little used car lot and allows his brother-in-law to help him run it.  When he has to, Plaintiff tells others that the brother-in-law is the COO.  Nice title for a used-car salesman.  Everything grinds to the end when checks start to be forged, and the mother-in-law claims that she lent money to the used car lot.  It’s even worse when the law firm forgets to file a reply to a counterclaim and the answer/reply is stricken.

“Initially. the Devery defendants contend that the plain ti ff lacks standing to bring this action. as the claims against the third-party defendants in the underlying action belonged solely to A&A. and that he does not have standing to assert claims of legal malpractice on behalf or A&A. With respect to standing. It is u threshold determination. resting in part on policy considerations. that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria (see Society of Plastics Industries v. County  of Suffolk. 77 NY2d 761. 570 NYS2d 778 [ 19911). .. Standing … requires an interest in the claim at issue in the lawsuit that the lav,1 wi II recognize as a sufficient predicate for determining the issue at the litigant’s rcquc.!st … Without … standing. a party lacks authority to sue” (Caprer v. Nussbaum. 36 AD3d 176, 825 NYS2d 55 [2d Dept 2006] [internal citations and quotation marks omitted]). It is well settled that. in addition to the elements discussed above the elements or a cause of action for legal malpractice include the existence or an attorney-client relationship between the plaintiff and the defendant.  Lindsay v, Pasternack Tilker Ziegler Walsh Stanton & Romano LLP.129 AD3d 790. 780 N’YS3d 124 (2d Dept 2015)  Terio , Spodek. 63 AD3d 719, 880 NYS2d 679; 2d Dept 2009) and that the relationship must exist at the time of the alleged malpractice (Tabner v. Drake, 9 AD3d 606, 780 NYS2d 85 [3d Dept 2004). Here,  it is undisputed that the plaintiff retained the Dcvner firm to reprcscnt his corporation and him indivually and that said firm remained the attorney of record at all times relevant herein. The issue of the relative culpability of the defendants docs not alter these basic fact that the plaintiff had an attornye-client relationship with Devery and the Devary firm.”

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