it is neither novel, nor a surprise that legal malpractice might come up in a complicated trust/estate/real estate/debtor-creditor case.  Here, a valuable building in the meatpacking district of New York City was at issue. Romanoff v Trustees of the Sheryl Romanoff Irrevocable Grantor Trust. 2020 NY Slip Op 31150(U) May 4, 2020 Supreme Court, New York County
Docket Number: Index No. 157641/2014 Judge: James E. d’Auguste illustrates how the thicket grows.

“New Roads, a Delaware company, was the sole shareholder of GHC, and Gerald had sole control over New Roads. Gerald and his spouse Sheryl each owned 49.5% of the common stock of New Roads. Nicholas Romanoff (Nicholas), Robert’s son and their grandson, owned the remaining 1%. In turn, GHC owned the property located at 55 Gansevoort Street in Manhattan (the Property). Over the years, GHC, New Roads, and Gerald had taken out or guaranteed millions of dollars in loans. As a result of these guarantees, there were two mortgages on the Property. When the debtors were unable to repay their debts, the Gans defendants obtained judgments against them in New Jersey and sought their enforcement in New York. Gerald had transferred his 49.5% share of New Roads to his wife in an effort to keep the stock from his creditors. Sheryl put the stock into two trusts: The Sheryl Romanoff Irrevocable Grantor Trust (the IGT), which contained 49.5% of the shares of the common stock of New Roads, and the Sheryl Romanoff Grantor Retained Annuity Trust (the GRAT), which initially contained 49.5% of the New Roads shares. Robert and Zimmerman had been the co-trustees of both trusts, and Robert was a lifetime beneficiary. In 2012, the GRAT ceased to exist and the corpus transferred to the IGT. The Gans defendants sought and obtained an order which set aside the transfers as fraudulent (55 Gans Judgment LLC v Romanoff, Sup Ct, NY County, Feb. 6, 2013, Mendez, J., index No. 106008/2011 [the 55 Gans Judgment order], appeal dismissed 123 AD3d 452 [1st Dept 2014], lv dismissed 26 NY3d 1073 [2015]). The order effectively denuded the IGT, which by this time contained 99% of the shares of the New Roads stock. On June 25, 2012, the Gans defendants settled their disputes with Gerald, Sheryl, GHC, and New Roads (NYSCEF Doc. No. 238 [the Settlement]). Under the Settlement, the Gans defendants forgave all mortgage obligations, released Gerald’s debts, released their judgments against the debtors, satisfied an unrelated judgment against GHC, and made certain payments to GHC and its attorney. In exchange, the debtors transferred the Property to the Gans defendants. The 55 Gans Judgment order rejected Robert’s attempt to intervene in the action and oppose the settlement, and Robert’s appeals on behalf of the trusts were dismissed because the co-trustee did not take part in or support the litigation (see 55 Gans Judgment LLC v Romanoff, 123 AD3d 452 [1st Dept 2014]). ”

“Collateral estoppel and res judicata protect litigants from repetitive lawsuits, promotes judicial economy, and preserves the integrity of the judicial system (Paramount Pictures Corp. v
Allianz Risk Transfer AG, 31 NY3d 64, 73 [2018] [Paramount]). Collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Wilson v Dantas, 29 NY3d 1051, 1062 [2017]
[internal quotation marks and citation omitted]). The doctrine is a subset of the broader doctrine of res judicata (see Wilson v Dantas, 29 NY3d at 1062). Res judicata bars all claims “arising out of the same transaction or series of transactions as a claim that was previously resolved on the merits and which the party opposing preclusion had a full and fair opportunity to litigate” (Platon v Linden-Marshall Contr. Inc., 176 AD3d 409, 410 [1st Dept 2019] [internal quotation marks and citation omitted]). Res judicata applies even to claims that were not litigated if they were or could have been raised previously (Wilson, 29 NY3d at 1062; see Munroe v Park Ave. S. Mgt., 99 AD3d 426, 427 [1st Dept 2012]). For this reason, a judgment on the merits in a prior action between the same parties bars litigation under a different legal theory (see Dickerson v United Way of N.Y. City, 113 AD3d 452, 452-453 [1st Dept 2014]). Further, if the losing party does not appeal an adverse judgment in a prior case between the same parties, that party cannot assert the claim in another lawsuit (see Cohen v Glass, 173 AD3d 580, 580 [1st Dept 2019]). ”

“The Court grants motion sequence no. 005 in its entirety. As the Gans defendants argue, plaintiffs lack standing to raise the trust-based claims they assert against them in the third and fifth causes of action. The issue of standing, the Gans defendants point out, has been resolved in several prior orders within and outside of the New York State courts. They cite the First Department decision in Romanoff III, which found that Romanoff I collaterally estopped Robert from pursuing trust-based claims, and that due to Nicholas’ privity with Robert, collaterally estoppel precluded Nicholas as well (Romanoff III, 148 AD3d at 617). In Romanoff I, Justice Singh emphasized in 2017 that “both Robert and Nicholas do not have standing to bring these claims on behalf of the trusts in any capacity, and Robert has no standing to bring the derivative claims on behalf of the corporations” (Romanoff I, NYSCEF Doc. No. 185 [2017 NY Slip Op 30461[U], *16 (March 8, 2017)]). That order further found that there was no standing because the trusts had been terminated, and that this also meant that plaintiff lacked standing to sue derivatively on behalf of New Roads (id. at 16-17). The Gans defendants also annex copies of the oral argument transcripts from Romanoff v New Roads Realty Corp. (Chancery Ct, DE, Civ Action 12375 –VCS, April 10, 2017, Slights, Vice Chancellor [“Slights Transcript”] [NYSCEF Doc. No. 195]), in which the Vice Chancellor adheres to the New York State court rulings. Further, the trust beneficiaries have no standing to sue regarding property that was in the trusts (see Matter of Larchmont Pancake House v Board of Assessors and/or Assessors of the Town of Mamaroneck, 33 NY3d 228, 240 [2019]; Buechel v Bain, 275 AD2d 65, 65 [1st Dept 2000]).

As Griffon correctly notes, the sixth cause of action for rescission also must be dismissed based on collateral estoppel. Justice Singh dismissed plaintiffs’ rescission claim
in Romanoff III. The trial court ruled that adequate monetary damages were available, noting that plaintiffs’ asserted goal had been to sell the Property at a higher value. It stated that plaintiffs’ assertions to the contrary were conclusory and without any evidentiary basis (Romanoff III, “

In a recurring theme, the “but for” element of legal malpractice is the place where battles are lost.  Rag & Bone Holdings LLC v Hand Baldachin & Assoc. LLP  2020 NY Slip Op 31149(U) May 2, 2020 Supreme Court, New York County Docket Number: Index No. 156994/2019  Judge: Andrea Masley is a fine example.  The Court determines that the case is timely.  It determines that there is enough of an attorney-client relationship for “privity.”  However, there is no “but for” causation.

“Defendants contend that the legal malpractice claim must be dismissed because the alleged legal malpractice occurred in 2012, and this action was not commenced until
2019, far beyond the three year statute of limitations. Holdings asserts that its claim is timely because defendants continuously represented Holdings in connection with the
matters at issue until at least January 2017.  As alleged in the complaint, defendants routinely advised Holdings relating to the MA and the calculation of T J PRP’s distributions pursuant to the operating agreement, which depended on the calculation of the management fee under the MA (NYSCEF 11, Complaint at ~~25, 33). These allegations are also supported by documentary evidence, including an email sent by defendant Hand to TJ PRP in November 2016 and defendants’ invoices (NYSCEF 38, Email; NYSCEF 40, Invoices).
While the court acknowledges that the allegations in the complaint involve references to the MA and its application, but do not involve specific action taken by defendants regarding the agreement, the references to the MA in the exhibits submitted by Holdings demonstrate a continued representation in connection with the MA. At this stage, the allegations, as supported by documentary evidence, are sufficient to deny the motion to dismiss on statute of limitations grounds. At the very least, the documentary evidence raises an issue of fact as to continuous representation. ”

Standing
“Defendants contend that the complaint must be dismissed because Holdings is not a party to the MA. Defendants contend that as a nonparty, Holdings lacks standing
to sue for damages based on defendants’ alleged malpractice in drafting the MA. Holdings asserts that the legal work that defendants performed in connection with the
MA was performed on behalf of Holdings, as evidenced by defendants’ own invoices. Holdings alleges “specific facts upon which the existence of an attorney-client
relationship or privity between the parties could be inferred” (Conti v Polizzotto, 243 AD2d 672, 673 [2d Dept 1997]). Holdings has sufficiently alleged that the existence of
an attorney-client relationship with defendants. This relationship is also supported by documentary evidence (NYSCEF 38, Email; NYSCEF 40, Invoices). It is irrelevant that
Holdings was not a party to the MA. What is relevant is the alleged attorney-client relationship between Holdings and defendants, and Holdings has sufficiently established that relationship.”

Proximate Cause

“Here, Holdings has failed to sufficiently allege that defendants’ alleged negligent drafting of the MA and operating agreement was the proximate cause of its damages.
In contrast, Holdings alleges in its complaint that Holdings was made aware of the alleged error in the calculation formula but failed to do anything to correct it besides
sending one email to defendants which went unanswered (NYSCEF 11, Complaint at  22, 23). Further, Holdings admits that, despite knowing of the calculation formula
agreed to in the MA, for five years, it continued to calculate the management fees contrary to the plain language of the MA (id. at ~24). This continued defiance of the MA
calculation was the proximate cause of Holdings’ damages. Further, although Holdings alleges that defendants continued to provide legal services in respect to T J PR P’s distributions, the complaint is bereft of an allegation that defendants continued to advise Holdings to breach the MA by calculating the fees in the manner Holdings believed that
the parties intended. The court cannot hold an attorney liable for the egregious conduct of its client. “

Matrimonial legal malpractice cases are difficult for plaintiff.  Generally they end in a settlement and courts have held that mere settlement (even if effectively compelled by mistakes of counsel) will not permit a legal malpractice case to be brought.  Other courts have held that the allocution which generally  accompanies an in-court settlement serves to immunize the attorneys when plaintiff answers the Court’s question and says that they are satisfied with the attorney’s work.

Here, in Blumencranz v Botter  2020 NY Slip Op 02452 Decided on April 29, 2020 Appellate Division, Second Department, against great odds, the motion for summary judgment was denied and affirmed on appeal.

“”In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301). In order to be entitled to summary judgment, the movant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Here, the defendant failed to demonstrate the absence of triable issues of fact as to whether his actions in advising the plaintiff with regard to the stipulation of settlement evidenced a failure on his part to exercise the requisite level of skill and knowledge, and whether those actions were a proximate cause of any damages incurred by the plaintiff. Since the defendant failed to meet his prima facie burden, we agree with the Supreme Court’s determination denying his motion for summary judgment dismissing the amended complaint (see Birnbaum v Misiano, 52 AD3d 632[*2]634), regardless of the sufficiency of the plaintiff’s opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).”

The formulaic decision in Kahlon v DeSantis 2020 NY Slip Op 02464 Decided on April 29, 2020 Appellate Division, Second Department comes with a recitation of the standard of a CPLR 3211(a)(7) motion, and a theoretical discussion of the requirement of “but for” causation.  There is no guidance to the bar in how the alleged facts fell short of “but for” causation.

“Here, we agree with the Supreme Court’s determination granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice. Accepting as true the facts alleged in the complaint, and according the plaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the conclusory allegations of the complaint failed to adequately plead specific facts to establish that, but for the defendants’ alleged negligent conduct, the outcome in the underlying action would have been any more favorable to the plaintiffs, or that the plaintiffs would not have incurred any damages (see Benishai v Epstein, 116 AD3d at 728; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083). Accordingly, the complaint failed to state a cause of action to recover damages for legal malpractice.

Additionally, the plaintiffs’ remaining causes of action are duplicative of the legal malpractice cause of action, since they arise from the same facts as those underlying the legal malpractice cause of action and do not allege distinct damages; hence, they are similarly subject to dismissal (see Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822, 823; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813). Accordingly, we agree with the Supreme Court’s determination granting those branches of the defendants’ motion which were to dismiss those causes of action.”

Real Estate in Manhattan, whether in a pandemic or not, remains a very significant economic force.  Real estate transactions remain a very significant portion of the legal malpractice world in NYC.  Here, a multi-million dollar co-op purchase went sour over the next door building’s right to add several floors and a penthouse.  The addition would render the co-op basically valueless and force a large swath of rooms to be unusable as residential space.

Halperin v Van Dam  2020 NY Slip Op 31301(U) April 28, 2020 Supreme Court, New York County Docket Number: Index No. 652124/2019 Judge: Andrea Masley  explains why the attorneys remain in the case.  it is, in large part, because they sent out a questionnaire and then ignored the missing answers.

“Prior to March 2017, plaintiffs Steven Halperin and Jamie Berman Halperin sought to purchase a multi-bedroom cooperative apartment in New York City to accommodate their young child and planned additional children. (NYSCEF Doc. No. [NYSCEF) 12, Complaint at 1Mf 11, 14.) Plaintiffs engaged defendant Marshall, “a licensed Real Estate Broker and principal officer or agent of [defendant) Douglas Elliman.” (Id at 1] 12.) Steven Halperin had previously worked with Marshall in leasing and selling another NYC apartment. (Id) Pursuant to a Dual Agency Disclosure prepared and furnished by Marshall, on behalf of Douglas Elliman, Marshall expressly acted as a “Buyers Broker” for plaintiffs. (Id at 1] 13.)

As their broker, Marshall provided plaintiffs with one of Douglas Elliman’s brokerage listings (Brokerage Listing) for an apartment located in the Flatiron District of Manhattan at 32 West 20th Street, Apartment 8S (Apartment). (Id at 1]1] 1, 12.) The Brokerage Listing represented the Apartment as “[c)urrently configured with one bedroom … additional bedrooms and baths may be added to fit your own lifestyle.” (Id at 1] 12 [emphasis omitted].) The Elliman Defendants knew that plaintiffs required a multi-bedroom apartment and actively marketed the Apartment as suitable for alteration and renovation into a multi-bedroom apartment. (Id at~ 14.) The Elli man Defendants also assured plaintiffs that such renovations were lawful and consistent with the governing rules and would be authorized by defendant Thirty-Two West 20 th Street Inc. (Apartment Corporation) (Id at W 4, 14.)

Plaintiffs engaged in negotiations with the Sellers. (Id at~~ 1, 15.) Although Sellers allegedly authorized Douglas Elliman to market the Apartment as a one bedroom with ability to expand, they failed to mention during negotiations that in 2010 the NYC Landmarks and Preservation Commission approved the premises adjacent to the Apartment for the construction of two additional levels and a penthouse, which would completely block certain windows in the Apartment. (Id at~~ 15, 27.) Plaintiffs decided to purchase the Apartment and retained the HH Defendants as attorneys to handle the closing of the transaction. (Id at W 18, 4.) The HH Defendants utilized a form of questionnaire entitled “Coop/Condo Review Sheet” and requested specific information from the Apartment Corporation concerning the Apartment. (Id at~ 19.) Questions 21 and 22 of this questionnaire were “Is this a lot-line Unit?” and if so, “Which of the windows are affected?” (Id) Although the questionnaire was returned to the HH Defendants, questions 21 and 22 were not answered. (Id at~ 20.)
Nevertheless, the HH Defendants made no further inquiry and failed to communicate this omission or its significance to plaintiffs. (Id)”

“Malpractice
“To sustain a cause of action for legal malpractice, [plaintiff] must show that [the attorney] failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that [the attorney’s] breach of this duty proximately caused the client to sustain actual and ascertainable damages.” (Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 666 [1st Dept 2017] [internal quotation marks and citation omitted].) Failing to advise a client on the risks associated with a transaction and failing to confirm relevant information may form the basis of a legal malpractice claim. (See Benitez v United Homes of N. Y., LLC, 142 AD3d 867, 867 [1st Dept 2016].)

Here, plaintiffs allege that the HH Defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by failing to advise plaintiffs that rooms containing lot-line windows could not be utilized as bedrooms for residential occupancy. (NYSCEF 1, Complaint at 1[ 33[a]- [b].) Additionally, they allege that the HH Defendants failed to exercise ordinary reasonable skill and knowledge by failing to observe or report that the Managing Agent on behalf of the Apartment Corporation left blank the portion of the “Coop/Condo Review Sheet” that inquired “Is this a lot-line unit?” and “Which of the windows are affected.” (Id at 33[d].) Plaintiffs also allege that these breaches proximately caused them to sustain actual and ascertainable damages in the amount of $5,000,000. (Id at 1[ 36.)

Although the HH Defendants submit a a diagram of the premises that plaintiffs received prior to signing the Contract of Sale, indicating the presence of lot-line  windows, this submission does not utterly refute the legal malpractice claim. (NYSCEF 29, Heermance affirmation~ 7; NYSCEF 34, Diagram.) Here, “on a pre-answer motion to dismiss,” “the information contained in the [diagram] cannot, at this stage, be described as explicitly putting plaintiff on notice and not requiring counsel’s interpretation of the information.” (Macquarie Capital [USA] Inc. v Morrison & Foerster LLP, 157 AD3d 456, 457 [1st Dept 2018].) The HH Defendants “may not shift to the client the legal responsibility [they were] specifically hired to undertake.” (Id. [internal quotation marks and citation omitted].) Additionally, the HH Defendants’ submission of an email from Steven Halperin allegedly about the “Coop/Condo Review Sheet” also does not utterly refute the malpractice claim. (NYSCEF 38, 4/12/2019 email, 2.) To the contrary, Steven Halperin states, “If … Marc confirms that he is comfortable with the answers in the questionnaire (I have read them and they seem fine to me), we should be clear to execute the agreement … ” ( /d.) Accordingly, the HH Defendants’ motion to dismiss the second cause of action on these grounds is denied.”

Amtrust N. Am., Inc. v Pavloff  2020 NY Slip Op 31005(U)  April 23, 2020 Supreme Court, New York County  Docket Number: Index No. 156855/2019 Judge: Andrew Borrok is a wonderful recapitulation of how “but for” causation, proximate cause, allegations of damage in a pre-answer motion to dismiss should be handled.  All too often, judges require proofs necessary in a summary judgment motion to be provided in a pre-answer motion, and seem away too quick to dismiss.

“To plead a legal malpractice claim, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, (2) that the attorney’s breach of that duty proximately caused plaintiff to (3) sustain actual and ascertainable damages (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY 3d 40, 49-50 [2015]). A claim for legal malpractice can be viable “despite settlement of the underlying action, if it is alleged that the settlement was effectively compelled by [the] mistakes of counsel” (Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990] [holding settlement of underlying action did not compel dismissal]). At the pleading stage, a legal malpractice plaintiff does not need to show “likelihood of success” but “is required only to plead facts from which it could reasonably be inferred that the defendant’s negligence caused” his loss (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435 [1st Dept 2011]). As concerns damages, it is sufficient to sustain a claim for a plaintiff to allege facts from which actual damages may be reasonably inferred, a showing of actual damages is not required at the motion to dismiss stage of proceedings (id.).
Here, contrary to the Defendants’ argument, the Complaint adequately pleads a duty owed by the Defendants to AmTrust as a client. And, for the avoidance of any doubt, Ms. Pavloffhas acknowledged under oath at her deposition that Am Trust was, in fact, her client, along with CastlePoint (NYSCEF Doc. No. 15 at 5:8-16). To the extent that Ms. Pavloff may have taken the position at her deposition that advising Am Trust (or Mr. Kuhn) about the Conservation Order and/or inquiring as to whether Mr. Kuhn was aware of the Conservation Order and whether the Conservation Order impacted his authority to settle the case was outside of the scope of her representation (i.e., even after she represented to the court that funds were available in the course of the settlement of the Underlying Action), this is, at best, a factual issue for discovery and the trier of fact as Ms. Pavloff and FBZ have not produced a retainer agreement and have acknowledged that they never made a retainer agreement for their services to Am Trust in the Underlying Action.

Turning to proximate cause, although the required standard of proximate cause has been imprecisely and variously stated, the alleged malpractice needs to be at least a substantial factor if not the “but for” factor in a plaintiffs damages (180 E. 88th St. Apt. Corp. v Law Office of Robert Jay Gumenick, P.C., 2010 NY Slip Op 33848 [Sup Ct NY Cnty 2010] [discussing
varying formulations of proximate cause for legal malpractice actions] [ affd 84 AD3d 5 82 [pt Dept 2011]). Here, the Complaint alleges that, “[h]ad [Ms. Pavloff] read the Conservation Order in any meaningful way … , or call[ed] the California Conservation Court or the California Conservation and Liquidation Office, or even just discuss the Order with her client, she would have known to advise Am Trust not to proceed with the settlement conference … where she represented that the insurer would contribute its $5 million limit to the settlement,” which representation then “directly caused AmTrust to be sued (Compl., iii! 71-75). This, together with other allegations in the Complaint, is sufficient to allege that the Defendants’ conduct was a substantial factor in Am Trust’s damages for purposes of pleading a legal malpractice claim. Inasmuch as the Defendants cite Kluczka v Lecci ( 63 AD3d 796 [2d Dept 2009]) and Reibman v Senie (302 AD2d 290 [l st Dept 2003]) for the proposition that the Complaint does not allege  proximate cause, those are both summary judgment decisions which do not address allegations at the pleading stage of the proceedings. Simply put, an “attorney’s conduct or inaction is the proximate cause of a plaintiffs damages if but for the attorney’s negligence the plaintiff. .. would not have sustained actual and ascertainable damages” (Gallet, Dryer & Berkley, LLP v Basile, 141AD3d405 [l st Dept 2016]). Here, the Complaint pleads that Ms. Pavloff s failure to meaningfully read and discuss the Conservation Order caused Am Trust to proceed with a settlement it would not have otherwise undertaken and that it has sustained at least a million dollars in damages as a result. This is sufficient at this juncture. ”

“Finally, to the extent that the Defendants argue that Mr. Kuhn as the client authorized Ms.Pavloff as Am Trust’s attorney to represent to counsel for Ms. Pruss and Great American and to the court that the $5 million was available for settlement in the Underlying Action, this argumentsimply misses the point. While it is true that “an attorney should not be held liable for ignorance of facts which the client neglected to tell him or her,” an attorney also “has a responsibility to investigate and prepare every phase of a client’s case” (Green v Conciatori, 26 AD3d 410, 411 “

With a serious injury, and with the best of intentions, Plaintiff hires a well regarded law firm to obtain compensation.  The law firm sues an incorrect governmental entity, in this case the City of New York rather than the U.S.  Is this legal malpractice?  To answer this question we revert to the four elements of legal malpractice:  departure (suing the wrong party), proximate cause (being unable to sue the correct party because of the passage of time), “but for” causation (discussed below) and ascertainable damages.  Here, dismissal is sought on the basis that plaintiff could not have won the case, and therefore, there is no “but for” causation.  in Postiglione v Sacks & Sacks, LLP  2020 NY Slip Op 31164(U) April 17, 2020
Supreme Court, Kings County Docket Number: Index No. 513779/2019 Judge: Edgar G. Walker, the motion is denied.

“On April 13, 2016, plaintiff sustained physical injuries at a construction site located at Floyd Bennett Field in Brooklyn, New York (Hangar B or the site) when a second-floor concrete floor walkway, upon which he was standing, collapsed. The site is owned by the federal government (government) and managed by the United States National Park Service (NPS). NPS contracted with Nagan Construction (Nagan) to repair storm damage caused by Super Storm Sandy. Nagan, in turn, subcontracted with Global International Windows, LLC (Global) to remove and install windows at Hangar B. Plaintiff was Global=s principal and sole owner. On August 30, 2016, plaintiff commenced an action for personal injury under the Labor Law against Nagan, as the general contractor, and the City of New York (the City), as owner and/or lease holder of the construction site (see Postiglione, et ano. v City of New York, et ano., Sup Ct, Kings County, index No. 515241/16 [the underlying action]). In that action, which is still pending, plaintiffs were initially represented by attorney Weir of the Sacks firm.”

“To recover damages for legal malpractice, a plaintiff must demonstrate that (1) the attorney Afailed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,@ and (2) that the attorney=s action or inaction proximately caused plaintiff to sustain Aactual and ascertainable damages (Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; see also Gorunkati v Baker Sanders, LLC, B AD3d B, 2020 NY Slip Op 00406 [2d Dept 2020]). Proximate cause is established by demonstrating that the plaintiff would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence (see Rudolph, 8 NY3d at 442; Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]). To establish a prima facie case of legal malpractice, a plaintiff must demonstrate that he or she would have succeeded on the merits of the underlying action but for the attorney=s negligence (see Grace v Law, 24 NY3d 203, 211 [2014]; Davis, 88 NY2d at 1009-1010). Conclusory allegations of damages or speculative injuries are  insufficient to sustain a legal malpractice action (see Gail v Colon-Sylvain, 151 AD3d 698, 700 [2d Dept 2017]).”

“Thus, plaintiffs may have a viable negligence claim against the government if they show that an NPS or government employee was responsible for plaintiff=s injuries. The bulk of defendants= argument is that Nagan was an independent contractor rather than a government employee, and therefore, the government cannot be held liable for Nagan=s tortuous acts or omissions (see Roditis, 122 F3d at 111). While defendants may be correct that the project specifications and contracts demonstrate that Nagan contractually assumed responsibility for work site operation and safety while construction was pending, plaintiffs= claim is not based solely Nagan=s actions (see Haskin v U.S., 569 Fed Appx 12, 16 [2d Cir 2014]). Here, the government may still be liable for Theresa=s negligence under the FTCA (28 USC 1346 [b]; Haskin, 569 Fed Appx 12; Esgrance v United States, US Dist Ct, SD NY, 17 Civ
8352, Oetken, J., 2018; Jappa v PJR Const. Co., Inc., US Dist Ct, SD NY, 84 Civ 3067, Conner, J., 1985). Indeed, it has been held that one may assume a duty, which initially did not exist, and may be held liable where his or her affirmative action adversely affected that plaintiff and he or she failed to act reasonably (see Arroyo v We Transport,  Inc., 118 AD3d 648, 649 [2d Dept 2014]; Gordon v Muchnik, 180 AD2d 715 [2d Dept 1992]).

Accepting the facts pleaded in the instant complaint as true, construing the complaint liberally, permitting plaintiff=s affidavit to correct any pleading defects and according the plaintiffs every possible favorable inference, the court finds that the allegations, while sparse, state a legal malpractice claim (see CPLR 3211 [a] [7]; Kolchins, 31 NY3d at105-106 [2018]). The allegations that Theresa, in the scope of her employment, directed plaintiff where he could and could not walk and that plaintiff fell in an area that Theresa represented was safe arguably state a negligence claim against her under the FCTA had they been asserted in the underlying action (28 USC 1346 [b]; Esgrance, supra; Jappa v PJR Const. Co., Inc., supra). Therefore, plaintiffs have met their burden of demonstrating that they could have prevailed on a personal injury claim against NPS but for defendants= negligence in suing the City, while permitting the statute of limitations for suing the government to lapse (see Grace, 24 NY3d at 211; Rudolph, 8 NY3d at 442; Davis, 88 NY2d at1009-1010). As a result, the defendants= motion to dismiss the complaint for failure to state a claim is denied.”

A frequently repeated principle of legal malpractice is that the “but for” portion of the case is really where all arguments center.  Few legal malpractice cases are brought where a departure by the attorney is not glaring.  The more perplexing question is what would have happened if the attorney had not made a mistake.  in Karambelas v Law Off. of Mark S. Helweil  2020 NY Slip Op 30974(U) April 21, 2020 Supreme Court, New York County Docket Number: Index No. 150591/2019 Judge: Louis L. Nock we see what happens to a legal malpractice case based upon whether the wife in a divorce case would have done better in divorce or in surrogates’ court when the husband dies just before judgment in the divorce case was entered.  In the earlier Karambelas case, we saw what happened with the prior attorneys during the divorce.

“This malpractice action arises out of the Firm’s representation of Ms. Karambelas duringthe latter portions of a divorce action titled Kaplan v Karambelas (No. 401958/2013 [Sup Ct NY
County]) which was ultimately abated upon the unfortunate event of Ms. Karambelas’ husband’s death. The Firm had been the fourth law firm hired by Ms. Karambelas to represent her in that divorce action. The Firm asserts on this motion that, since her husband died, Ms. Karambelas received a jointly owned Park Avenue apartment, appraised at $4.75 million in the divorce action. The Firm further asserts that Ms. Karambelas has also received $1.7 million in life insurance proceeds from her late husband’s policy.”

“The overarching gist of the motion rests on the Firm’s prediction concerning the future outcome of a pending Surrogate’s Court proceeding involving the probate of the late Mr.
Kaplan’s estate (Matter of Estate of Peter M. Kaplan, a/k/a Peter Mark Kaplan, Peter C. Kaplan, and Peter Kaplan, No. 2018-3342/B [Surr Ct NY County]). The Firm asserts that the estate
includes a residence in Water Mill, New York, appraised during the divorce action at $4.75 million, as well as jewelry and artwork valued in excess of $1 million. The Firm’s theory
underlying this motion is, in large part, distilled in paragraph 8 of the moving affirmation of its counsel, who predicts that “Karambelas will ultimately receive [through the probate of the Kaplan Estate] substantially more than she would have received in the divorce action under the equitable distribution laws of the State of New York – so she nonetheless will receive all the money he allegedly would have been obligated to pay for legal fees and maintenance anyway – and much more” (NYSCEF Doc. No. 4 ¶ 8).

In fact, the Firm’s said factual prediction permeates its entire motion (see, NYSCEF Doc. No. 4 ¶¶ 19 [“As a result of her husband’s death and the abated divorce action, Karambelas, as
his wife, will likely be left the entirety of his estate . . ., obtained full ownership of the jointly owned Park Avenue apartment and has received life insurance proceeds of $1.7 million . . . .
This would include the same money from which she allegedly would have received payment from for her legal fees and expenses.”], 27 [“it is anticipated that Karambelas will inherit significantly more money as a result of her husband’s death than she alleges as damages, and would encompass any payments allegedly not received while her husband was alive”]).
In opposition to the motion, counsel for Ms. Karambelas asserts that the Firm is overplaying Ms. Karambelas’ hand in the probate proceeding. First, he asserts that the only estate asset worth speaking of is the late Mr. Kaplan’s residence in Watermill, New York, “of which [Ms. Karambelas] would presumably have been awarded at least half in the divorce
action” (NYSCEF Doc. No. 12 ¶ 44). Said counsel further asserts, in contradistinction to the Firm’s counsel, that “[t]he estate does not include the artwork and jewelry referenced in the
attorney’s affirmation submitted in support of the motion at bar” (id., ¶ 46). Said counsel then proceeds to calculate what he believes are the debts of the Kaplan Estate, estimating them at “almost $3 million” (id., ¶ 47). Notably, said counsel further discounts the Firm’s optimistic projections of Ms. Karabelas’ probate take-away by informing the court of “the simple fact that [Mr. Kaplan’s] son is also a beneficiary and co-administrator of [Mr. Kaplan’s] estate,” concluding – or rather, counter-predicting – that Ms. Karambelas “may, at best, recover only half of her husband’s estate, to the extent that any assets remain after all of the estate’s debts have been paid” (id., ¶ 50). ”

“Based on the mutual primacy of the probate proceeding in the eyes of all the parties hereto, as manifested by their own submissions, this court concurs that the most effective
exercise of discretion at this time is to grant the Firm’s alternative request for a stay of this action pending a final resolution of the pending Surrogate’s Court proceeding. Only at that seminal point in time can the parties be able to regroup and re-assess what they currently view as the ostensible merits of their respective claims and defenses in this ancillary malpractice action and, equally importantly, whether it would be worth their whiles in doing so altogether.”

 

 

There are four elements to legal malpractice.  In shorthand, they are departure, proximity, “but for” causation and ascertainable damages. Karambelas v Cohen Goldstein, LLP  2020 NY Slip Op 30994(U) April 2, 2020 Supreme Court, New York County Docket Number: Index No. 15163 demonstrates how the Court will examine the underlying case (sometimes to an extreme degree) in order to determine the “but for” issue. Anecdotally, this is much more extreme in legal malpractice settings than in general litigation.

“On April 17, 2015 – not yet having received its retainer payment from plaintiff, the Firm appeared in court on her behalf At that appearance, the court rendered a decision on a pending motion by plaintiff, made by prior counsel, which sought to compel plaintiffs husband to produce all life insurance policies at the time he brought the divorce action (see, Defendants’ Exh. “V” [transcript of April 17, 2015, appearance]). The court granted that motion and ordered plaintiffs husband to turn over the life insurance policies within 15 days. Plaintiffs
husband did not comply with this order (id). Contrary to a claim made by plaintiff herein that the Firm failed to properly conduct discovery, the court had advised that discovery had closed the day before the Firm even made its first appearance (id). The court, therefore, denied the Firm’s request to continue the deposition of plaintiffs husband, but allowed certain other discovery to take place (id). ”

“Despite the court’s closing of discovery; on June 15, 2015, the Firm, nevertheless, filed a motion by Order to Show Cause, seeking an order: (i) granting interim attorneys’ fees of
$150,000.00, as well as the costs of that motion; (ii) holding plaintiffs husband in contempt for failing to pay monthly maintenance and to turn over the life insurance policies; (iii) granting a judgment for the amount of maintenance in arrears at that time, as well as any amounts that would become due pending the motion; (iv) directing the art auction house Christie’s to release to plaintiff the amounts it was holding as a credit against plaintiffs husband’s support obligations; (v) compelling plaintiffs husband to post security of $250,000.00 or to appoint a receiver to rent out a house owned by plaintiff and her husband, with the rent to be used to pay plaintiffs support; and (vi) compelling plaintiffs husband to tum over additional documents (see, Defendants’ Exh. “J” [June 15, 2015, Motion]). On November 20, 2015, the court denied the request for $150,000.00 in light of plaintiffs receipt of a $500,000.00 line of credit, but did award plaintiff $20,000.00 in connection with the costs of that motion (see, Defendants’ Exh. “K” [November 20, 2015, Order]). The court directed a contempt hearing be held regarding the nonpayment of support and the failure to disclose all life insurance policies (id). The court also found that plaintiffs husband’s arrears were $75,975.83 and directed the entry of a money judgment if payment was not made (id). The court further denied plaintiff’s request for security or a receiver, and the request relating to Christie’s was resolved by a stipulation between the parties (id). ”

“Plaintiff asserts five causes of action against the defendants. However, all of these claims are conclusively refuted by documentary evidence and must be dismissed pursuant to CPLR
321 l(a)(l). A motion to dismiss based on documentary evidence may be granted “where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter oflaw” (Goshen v Mutual Life Ins. Co., 98 NY2d 314, 326 [2002]). Here, the documentary evidence, in the nature of court filings, court orders, and correspondence between the parties, demonstrates that the factual allegations that form the basis of plaintiff’s claims are disproven. As such, the complaint should be dismissed in its entirety. “

In Markov v Barrows 2020 NY Slip Op 31010(U) April 20, 2020 Supreme Court, New York County Docket Number: Index No. 158043/2019 decided by Judge Margaret A. Chan we see a well-written explanation of the tension between a departure from good practice (failing to name a party) and the requirement that the “but for” showing demonstrate that had the party been named, there would have been a good case against it.

“This action arises out of defendant Michael Barrows, Esq.’s representation of plaintiff Dmitry Markov d/b/a Dmitry Markov Coins & Medals in an underlying action, Markov v Spectrum Group Intern., Inc. (2015 NY Slip Op 30054[U] [Sup Ct, NY County 2015]). Plaintiff retained Barrows to pursue a claim against the seller of a Russian medal, known as a Russian Military Order (the Medal). Plaintiff alleged that at an auction on January 14, 2008, the seller misrepresented that the Medal was encrusted with diamonds, and in reliance thereon, plaintiff purchased the Medal. Plaintiff subsequently learned that the Medal was, in fact, not encrusted “with diamonds. ”

“In the instant matter, plaintiff alleges that Barrows was aware that Stacks was the proper defendant prior to filing the complaint in the underlying action but failed to timely add Stacks as a defendant and negligently relied on CPLR 1024 (NYSCEF # 16 – Complaint, ¶¶ 27-30, 62). Plaintiff also alleges that on December 27, 2013, he informed Barrows by email that Stacks was the proper defendant, but that Barrows failed to amend the complaint as of right, despite the opportunity to do so (id., ¶¶ 31-34). ”

“Defendants’ second argument is on the sufficiency of the complaint.Defendants point out that while the gravamen of plaintiff’s complaint is tha tdefendants failed to timely name Stacks as a defendant in the underlying action,the complaint is devoid of any specific factual allegations that plaintiff would have been successful in the underlying action “but for” defendants’ negligence (Magassouba v Cascione, 178 AD3d 509, 509 [1st Dept 2019]; Salans LLP v VBH Properties SRL, 171 AD3d 460, 461 [1st Dept 2019]).

The complaint contains multiple paragraphs on Barrow’s failure to timely add Stacks as a defendant in the underlying action. The complaint’s only mention that could be framed as an allegation that plaintiff would have been successful but for Barrow’s negligence is that the fraud and misrepresentation claims were not dismissed in the order dated January 14, 2015. But even with a generous reading of that “allegation”, the success attributable to plaintiff is limited to only that dismissal motion (NYSCEF # 34 at 6). Absent a showing that “but for” the attorney’s conduct, plaintiff would have prevailed in the underlying matter, plaintiff’s cause of action for legal malpractice against defendant Barrows cannot be sustained.

Defendants urge this court to bar plaintiff from alleging that Barrows was aware that Stacks was the proper defendant prior to the expiration of the statute of limitations in the underlying case because of an admission made by plaintiff. This request is superfluous given the above finding dismissing the legal malpractice claim against Barrows. In any event, it would be denied because the admission was in plaintiff’s affidavit, which was prepared at the time Barrows was representing plaintiff (NYSCEF # 21). And the affidavit was contradicted by an email of December 27, 2013, in which plaintiff alerted Barrows to Stack as the proper defendant (NYSCEF # 32).”