Attorneys are given the benefit of the doubt in many “strategic” decisions.  Which witnesses to call, which questions to ask, which expert to use.  These are all routinely held to be part of the “art” of trial, which is not a “science.”

Roth v Ostrer  2018 NY Slip Op 03218 [161 AD3d 433] May 3, 2018
Appellate Division, First Department presents a different, and somewhat rare take on the question of “strategy” v. “judgment.”

“Plaintiff alleges that defendants committed legal malpractice by withdrawing, without first consulting with him, his appeal from a November 2012 order of Supreme Court, Orange County (Lawrence H. Ecker, J.), that dismissed his CPLR article 78 petition to annul his summary termination from the Newburgh Police Department, without a pretermination hearing pursuant to Civil Service Law § 75 or Town Law § 155.

Defendants failed to demonstrate as a matter of law that their withdrawal of the appeal was not negligence but a reasonable strategic decision (see Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551 [1st Dept 2011]). The withdrawal resulted in plaintiff’s forgoing a pretermination hearing, which would have entitled him to procedural safeguards and allowed for disciplinary measures less severe than termination. By contrast, the reinstatement hearing to which the Town of Newburgh consented upon vacatur of plaintiff’s conviction and his plea to harassment in the second degree, a violation (Penal Law § 240.26), and at which defendants represented plaintiff, was limited to whether, in the Town’s discretion, plaintiff should be reinstated to his position (see Civil Service Law § 75; Town Law § 155; Public Officers Law § 30 [1] [e]).

The allegations in the complaint establish that but for defendants’ conduct in withdrawing the appeal from Justice Ecker’s ruling, and in sending a different lawyer than the one promised to represent him at the reinstatement hearing, he would not have incurred damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]). Plaintiff showed that he would have prevailed on the appeal had it not been withdrawn, because Justice Ecker erred in concluding that plaintiff’s conviction of assault in the third degree, based on criminal negligence (Penal Law §§ 15.05 [4]; 120.00 [3]), a misdemeanor, constituted a violation of his oath of office, i.e., arose from “knowing or intentional conduct indicative of a lack of moral integrity,” and warranted termination without a hearing pursuant to Public Officers Law § 30 (1) (e) (Matter of Duffy v Ward, 81 NY2d 127, 135 [1993]). Justice Ecker reasoned that third-degree assault was a violation of plaintiff’s oath of office merely because criminal negligence requires more than ordinary civil negligence, and that therefore it “did not negate a finding that [plaintiff] engaged in ‘knowing or intentional’ conduct within the meaning of [Public Officers Law § 30 (1) (e)]” (Matter of Roth v Town of Newburgh, Sup Ct, Orange County, Nov. 16, 2012, Ecker, J., index No. 3014/2012). In addition, the elements of criminally negligent assault in the third degree do not necessarily warrant a finding of lack of moral integrity (see Duffy, 81 NY2d at 135).”

Criminal defendants cannot successfully sue their criminal defense attorneys if they are striving to show that their criminal conviction was a result of legal malpractice.  This is a principle set forth by the Court of Appeals in Carmel v. Lunney.  

However, Sehgal v DiRaimondo 2018 NY Slip Op 06619 [165 AD3d 435]
October 4, 2018 Appellate Division, First Department. shows that there can be interesting variations in which claims might still exist.

“Plaintiff, a lawful permanent resident of the United States since 1998, pleaded guilty in 2014 to certain violations of federal election laws and was sentenced to one year probation. He alleges that he separately sought advice from defendants, who are specialists in immigration law, concerning the immigration consequences of his plea. Defendants provided a legal memorandum in which they advised plaintiff that it was unlikely he would be deported as a result of his plea and that, if he were placed in removal proceedings, he could seek a waiver from inadmissibility. Plaintiff alleges that, in reliance on the advice, he pleaded guilty and later traveled abroad. Upon his return to the United States, plaintiff was detained, placed in removal proceedings, and incarcerated for approximately four months.”

“We affirm dismissal of part of the malpractice claim on alternative grounds. Plaintiff’s claim that he pleaded guilty to criminal charges in reliance on defendants’ negligent legal advice concerning the immigration consequences of the plea is barred by his guilty plea and lack of any claim of innocence (Carmel v Lunney, 70 NY2d 169, 173 [1987]; Yong Wong Park v Wolff & Samson, P.C., 56 AD3d 351 [1st Dept 2008], lv denied 12 NY3d 704 [2009]).

However, the policy underlying the rule established in Carmel v Lunney, does not require dismissal of the entirety of plaintiff’s legal malpractice claim, because the remainder of his claim that defendants failed to advise him of the potential immigration consequences of traveling outside the United States as a result of entering a guilty plea does not dispute the validity of his conviction (see generally Carmel v Lunney; see also Bass & Ullman v Chanes, 185 AD2d 750 [1st Dept 1992]). Further, plaintiff’s allegations that he relied on defendants’ faulty legal advice concerning the immigration consequences of his guilty plea in deciding to travel abroad after he pleaded guilty, resulting in his being detained and subjected to removal proceedings, state a valid cause of action for legal malpractice. Defendants’ other [*2]arguments present disputed factual issues concerning the standard of care and proximate cause that are not properly resolved on a motion to dismiss the complaint (see Urias v Daniel P. Buttafuoco & Assoc., PLLC, 120 AD3d 1339, 1343 [2d Dept 2014]). Concur—Friedman, J.P., Sweeny, Kapnick, Gesmer, Singh, JJ.”

Settlements of civil legal actions are a good thing as well as completely necessary.  Sit in the Jury Coordinating Part in Kings County for a day, and you will see 250+ cases being called.  That’s 250 cases every day.  There might be 30 judges available to try a case in Kings County.  Doing the math indicates that the legal system cannot exist without vast amounts of settlements between litigants.

There is no rational justification for the question of whether one is satisfied with the attorney’s work in an in-court settlement allocution.  We suggest that it is there simply to inoculate the attorney.  Smith v V.J Longhi Assoc.  2019 NY Slip Op 32836(U)  September 26, 2019 Supreme Court, New York County Docket Number: 150122/2019 Judge: W. Franc Perry is a prime example.  While there are some very good arguments for dismissal (the case was prosecuted, the correct defendants were in the case, experts were hired and prepared to testify, there was no preclusion of evidence), the court leans on the “satisfaction” of the client.

“Plaintiff retained V.J. Longhi Associates (“Longhi”) in or about November, 2005 to pursue a medical malpractice action on her behalf against Victor Ho, M.D. (“Dr. Ho”), Victory Memorial Hospital (“Victory Hospital”) and Staten Island University Hospital – North (”S.I.Hospital”). At that time, Morris Handler (“Handler”) was associated with Longhi and worked on plaintiffs case. (NYSCEF Doc. Nos. 1, ~~ 2-6, and 33). Plaintiff alleges that defendant Handler did nothing to prepare her case and litigate the action for eight years until Dr. Ho came from Saudi Arabia for his deposition on April 30, 2013. (Id.,~ 9). According to the complaint, plaintiff alleges that she was forced to settle her malpractice action for much less than the action was worth, as a result of the defendants’ professional negligence in failing to properly prepare her case for trial.

In support of their motion seeking to dismiss the complaint for failure to state a claim, defendants provide documentary evidence which they claim refutes the  allegations in the complaint and reveals that plaintiff consented to the settlement on the record in open court. (NYSCEF Doc. Nos. 6 – 20). In addition, defendants submit the affidavit of Morris Handler in support of their motion. (NYSCEF Doc. No. 4). Defendants maintain that the record demonstrates that the allegation that the underlying medical malpractice action was not properly prepared for trial, is belied by the documentary evidence, including the-Bill of Particulars which was served and filed on August 22, 2006. (NYSCEF Doc. Nos. 9, 10). In addition, defendants note that prior to serving the Bill of Particulars, Longhi retained Arnold E. DiJoseph, P.C., a seasoned litigator, to prosecute plaintiffs medical malpractice action. ”

“Defendants rely on the transcript in the underlying action which demonstrates that after the parties agreed to settle the malpractice action, plaintiff who had been present in the courtroom throughout the trial, was allocuted on the record indicating that she had agreed to
settle her case for $300,00. The transcript shows that plaintiff accepted the settlement “of [her] own free will and not under any duress whatsoever” and that she was satisfied with the legal representation in the matter. (NYSCEF Doc. No. 20, pp. 139-140). ”

“Viewing the complaint in the· light most favorable to the plaintiff (see Leon v Martinez,84 NY2d at 87-88), it fails to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying medical malpractice action or that plaintiff would not hav~ incurred any damages (see Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083; Holschauer v
Fisher, 5 AD3d 553, 772 NYS2d 836 [2004]; Rau v Borenkoff, 262 AD2d 388, 691NYS2d140 [1999]). The complaint also fails to sufficiently allege that the subject settlement plaintiff agreed to in open court, was “effectively compelled by the mistakes of counsel” (Tortura v Sullivan
Papain Block McGrath & Cannavo, P. C., 21 AD3d at 1083). ”

“Plaintiff does not set forth any allegations in the complaint to demonstrate that defendants’ actions “forced her” to settle the action. She does not set forth the substance of the alleged misrepresentations by defendants, nor does she set forth how these misrepresentations
compelled her to settle the matter. Moreover, plaintiff stated at the conclusion of the trial, in open court, that she was satisfied with her counsel and wanted to resolve the matter through settlement rather than continue with the trial. (NYSCEF Doc. No. 20, p1p.39-40).”

A retainer agreement may be required by various NYS rules, but lack of one will not make attorney fees collectible.  On the other hand, a specific retainer agreement may limit liability for failure to undertake other litigation.  Flusser v Bikel 2019 NY Slip Op 32847(U) September 24, 2019
Supreme Court, New York County Docket Number: 155158/2019
Judge: Michael L. Katz is a good example.

“Plaintiff was represented in an action for divorce, Alan Flusser v Marlise Flusser, Index No. 314558/11, by Robert M. Preston, Esq. and his then-firm, Preston, Stutman & Partners, P.C., until on or about May 27, 2014.  That representation ended when plaintiff signed a retainer agreement with the defendant law firm, Bikel & Mandarano, a limited liability partnership, by which the firm agreed to represent her in connection with two limited issues; namely, (i) “the prosecution or defense of a divorce action;” and (ii) “the prosecution or defense of a Family Court proceeding concerning custody, visitation and support proceedings, including the attempt to negotiate a resolution of the matter.”

“Plaintiff contends that her former attorney, Mr. Preston, committed legal malpractice by failing to assert a specifically enumerated counterclaim against Mr. Flusser for the spousal maintenance arrears when the original Answer was filed in April 2012 and by failing to obtain discovery relating to the monies purportedly owed.

Plaintiff alleges, without any documentary proof and in direct contravention of the terms of the retainer agreement, that “the scope of defendants’ representation came to include representing and advising [her] with respect to claims for allegedly unpaid legal fees and for a charging lien brought by Preston and his firm and a claim for legal malpractice against Preston and his firm.””

“In the instant case, the retainer agreement enumerated the specific legal services that the defendant law firm would provide, and did not include a duty to provide any representation or advice with respect to the former attorney’s claim against plaintiff for unpaid legal fees or with respect to plaintiff’s potential claim against her former attorney for alleged legal malpractice. See, AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 (2007); Keld v Giddins Claman, LLP, 170 AD3d 589, 589 (lSt Dep’t 2019) .”

“Thus, there is no basis for plaintiff to assert a claim against defendants for legal malpractice based on the firm’s purported failure to ‘thoroughly investigate’ and/or preserve a potential claim against plaintiff’s former attorney, or to advise plaintiff with regard to a matter wholly outside the scope of the firm’s agreed upon representation.”

Suing an attorney where there was no direct relationship – privity- is impermissible in legal malpractice settings unless the conduct complained of falls within the very narrow exception of “fraud, collusion, malice or other special circumstances.”  Here, the conduct fell into this “narrrow” exception.

A legal malpractice case must be commenced within three years of the departure from good practice, but this period may be tolled by “continuous representation.”  This too is a narrow exception.  Plaintiffs in Webster v Sherman 2018 NY Slip Op 06590 [165 AD3d 738] October 3, 2018 Appellate Division, Second Department  failed to fall into this exception.

“With respect to the cause of action alleging legal malpractice, although the Supreme Court properly determined that there was no attorney-client relationship between the plaintiff and T&L (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792 [2015]; Lombardi v Lombardi, 127 AD3d 1038, 1042 [2015]; Terio v Spodek, 63 AD3d 719, 721 [2009]), the second amended complaint set forth a cause of action which fell “within the narrow exception of fraud, collusion, malicious acts or other special circumstances under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity” (Mr. San, LLC v Zucker & Kwestel, LLP, 112 AD3d 796, 797 [2013] [internal quotation marks omitted]; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1112 [2011]).

However, as an alternate ground for affirmance, T&L contends, as it did in the Supreme Court, that this cause of action is barred by the statute of limitations. “In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable [statute of] limitations period, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired” (Hohwald v Farm Family Cas. Ins. Co., 155 AD3d 1009, 1010 [2017] [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 197 [2017]). “If the defendant meets this initial burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (Amrusi v Nwaukoni, 155 AD3d 814, 816 [2017] [internal quotation marks omitted]; see Shah v Exxis, Inc., 138 AD3d 970, 971 [2016]).

The statute of limitations for a cause of action alleging legal malpractice is three years [*3]from the accrual of the cause of action (see CPLR 214 [6]; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086 [2016]; Farage v Ehrenberg, 124 AD3d 159, 163 [2014]). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court . . . regardless of when the operative facts are discovered by the plaintiff” (Farage v Ehrenberg, 124 AD3d at 164 [citations omitted]; see McCoy v Feinman, 99 NY2d 295, 301 [2002]; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086).

However, legal malpractice claims which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies (see Glamm v Allen, 57 NY2d 87, 91-94 [1982]; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 [2015]; Farage v Ehrenberg, 124 AD3d at 164), in which case the three-year statute of limitations is tolled for the period following the alleged malpractice “until the attorney’s continuing representation of the client on a particular matter is completed” (Farage v Ehrenberg, 124 AD3d at 164; see Zorn v Gilbert, 8 NY3d 933, 934 [2007]; Glamm v Allen, 57 NY2d at 93). For the doctrine of continuous representation to apply, there must be clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038 [2013] [internal quotation marks omitted]; see Farage v Ehrenberg, 124 AD3d at 164).

Here, T&L met its prima facie burden by establishing that the last date of the alleged malpractice occurred on January 11, 2006, and the action against it was not commenced until February 6, 2013 (see 3rd & 6th, LLC v Berg, 149 AD3d 794, 795 [2017]; Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d at 1038). In opposition, the plaintiff failed to raise a triable issue of fact as to whether continuous representation tolled the statute of limitations (see 3rd & 6th, LLC v Berg, 149 AD3d at 795-796; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1087).”

Clients and attorneys all too often focus, almost entirely, on the “mistake” made in a legal malpractice setting, while giving little thought to the “but for” element.  What would have happened if the mistake had not been made.  762 Westchester Ave. Realty, LLC v Mavrelis 2018 NY Slip Op 08452 [167 AD3d 684] December 12, 2018 Appellate Division, Second Department is a good example.  The Court reversed when it found insufficient proof of whether the tax abatement would have been given had the request been timely made.

“The plaintiff, a limited liability corporation that owned real property in the Bronx, commenced this action alleging, inter alia, legal malpractice against the defendant Bill Mavrelis, also known as William N. Mavrelis (hereinafter the defendant). Specifically, the plaintiff alleged that it had retained the defendant to prepare and file an application for a tax abatement on the plaintiff’s behalf, that the defendant filed the application late, and that the lateness of the filing was the basis for the denial of the application. Prior to the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability with respect to the cause of action alleging legal malpractice. In an order dated January 4, 2016, the Supreme Court, among other things, granted that branch of the motion. The defendant appeals from that portion of the order.”

“Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the issue of the defendant’s liability, as it failed to present any evidence that its application for the subject tax abatement would have been granted had it been timely filed (see Zaidman v Marcel Weisman, LLC, 106 AD3d at 814; Erdman v Dell, 50 AD3d at 628). Moreover, the limited, pre-discovery record before us presents unresolved triable issues of fact regarding the cause of the late filing, including the extent, if any, to which such cause is attributable to any act or omission on the part of the defendant.

Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment on the issue of the defendant’s liability for legal malpractice, regardless of the sufficiency of the defendant’s opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).”

A building owner wants to convert from office space to residential.  An architect is hired.  Someone forgets to determine whether air rights remain with the building or have previously been sold.  Problem!

140 W. 57th St. Bldg., LLC v Falconer  2019 NY Slip Op  2768(U)  September 18, 2019 Supreme Court, New York County Docket Number: 155934/2019 Judge: Frank P. Nervo discusses the various elements and standards.

“Defendants contend that documentary evidence establishes their defense, as a matter of law, to the instant suit. Dismissal under CPLR § 3211(a)(1) is “warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter oflaw” (Leon v. Martinez, 84 NY2d 83 [1994]). “The evidence submitted in support of such motion must be ‘documentary’ or the motion must be
denied” (Cives Corp. v. George A. Fuller Co., Inc., 97 AD3d 713 [2d Dept 2012]). Documentary evidence is unambiguous, authentic, and undeniable; however, affidavits, deposition testimony, and letters are not considered documentary evidence for the purpose of motions to dismiss (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 997 [2d Dept 2010]; see also GEM Holdco, LLC v. Changing World Technologies, L.P., 127 AD3d 598 [1st Dept 2015]). Here, defendants have submitted their own affidavits in support of their motion to dismiss. It is beyond cavil that these affidavits are improper on a CPLR § 3211 (a)(1) motion to dismiss, and the Court will not consider them for that purpose. To the extent that Hill’s affidavit annexes a proposal purportedly accepted ·by plaintiffs, the proposal is unsigned and does not establish a defense, as a matter of law, to plaintiffs’ claims of malpractice (Exhibit 1 to Hill Affidavit).”

“”It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 NY2d 382, 389 [1987]; see also Gelita, LLC v. 133 Second Ave., LLC, 42 Misc 3d 1216[A] [Sup. Ct. NY County (Konreich, J.)] [2014]). Notwithstanding, “[p]rofessionals may be subject to tort liability for failure I to exercise reasonable care, irrespective of their contractual duties” (Sommer v. Fed. Signal Corp., 79 NY2d 540, 551 [1992]). -New York has long recognized tort liability for architectural malpractice (see e.g. 530 E 59 Corp. v. Unger, 43 NY2d 776 [1977]). ”

“Nor is a claim for professional malpractice duplicative of a breach of contract claim, as defendants contend. Professionals are subject to tort liability for their failure to exercise reasonable care, regardless of their contractual duties (Sommer, 79 NY2d at 551; see also 7 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 83 [1st Dept 1999]). Consequently, treating the allegations in the complaint as true and according plaintiffs the benefit of every favorable inference, the complaint validity asserts causes of action against defendants for breach of contract and professional malpractice sufficient to survive a motion to dismiss. “

Greenstreet of N.Y., Inc. v Davis  2018 NY Slip Op 07837 [166 AD3d 470]
November 15, 2018 Appellate Division, First Department illustrates how requirements for privity or near-privity are analyzed by the AD.

“Whether characterized as professional malpractice or negligent misrepresentation, the central issue is whether plaintiff has sufficiently alleged a relationship of privity with Gibson and Seinuk, or the functional equivalent of privity, to impose a duty owed on them in relation to plaintiff (see North Star Contr. Corp. v MTA Capital Constr. Co., 120 AD3d 1066, 1069 [1st Dept 2014]; Bullmore v Ernst & Young Cayman Is., 45 AD3d 461, 464 [1st Dept 2007]).

Here, the court properly determined that the amended complaint, as amplified by the affidavit from plaintiff’s president (see Wall St. Assoc. v Brodsky, 257 AD2d 526, 526-527 [1st Dept 1999]), has adequately asserted such a relationship. Plaintiff alleges that it had direct communications with Gibson and Seinuk during the course of the project; that defendants were aware that the drawings submitted were incorrect insofar as Gibson failed to reference structural insulated panels (SIPs); that Seinuk negligently advised plaintiff to back the SIPs with plywood out of concern for wind shear and failed to advise plaintiff that doing so would violate the New York City Building Code; that Gibson and Seinuk knew that plaintiff would rely on their drawings and representations; and that plaintiff reasonably relied on these representations (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 425 [1989]).”