Hinnant v Carrington Mtge. Servs., LLC  2019 NY Slip Op 03575 [172 AD3d 827]  May 8, 2019
Appellate Division, Second Department is an example of overeaching by plaintiff, seeking to bring in the opponent’s attorney.  There is no privity with the opponent’s attorney absent some very small exceptions.  Privity is a requirement for a good legal malpractice case.

“Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity, or near-privity, for harm caused by professional negligence (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595 [2005]; Fredriksen v Fredriksen, 30 AD3d 370, 372 [2006]; Rovello v Klein, 304 AD2d 638 [2003]; Conti v Polizzotto, 243 AD2d 672 [1997]). Here, even accepting the facts alleged in the complaint as true, the complaint fails to allege the existence of an attorney-client relationship, privity, or a relationship that otherwise closely resembles privity between the plaintiffs and Leavitt (see DeMartino v Golden, 150 AD3d 1200, 1201 [2017]; Fredriksen v Fredriksen, 30 AD3d at 371-372; Goldfarb v Schwartz, 26 AD3d 462, 463 [2006]; Rovello v Klein, 304 AD2d at 638-639). Furthermore, the complaint does not contain specific allegations that would place the plaintiffs within an exception to the privity requirement (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d at 595; Fredriksen v Fredriksen, 30 AD3d at 372). The complaint fails to set forth evidentiary facts demonstrating that Leavitt was a participant with Carrington in a common scheme or plan to defraud the plaintiffs, or otherwise aided and abetted Carrington in the commission of fraud (see Fredriksen v Fredriksen, 30 AD3d at 372; Goldfarb v Schwartz, 26 AD3d at 463-464).

Furthermore, the documentary evidence submitted by Leavitt in support his motion utterly refuted the plaintiffs’ factual allegations, and conclusively established a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326). Specifically, Leavitt submitted an acknowledgment dated March 14, 2015, signed by the plaintiffs in connection with the consolidated mortgage transaction, which stated: “The undersigned further acknowledge that Jeffrey H. Leavitt, Esq., P.C. represents the Lender in this transaction, that the parties have not been given nor are relying on any legal advice given by Jeffrey Leavitt, Esq. and that no attorney/client relationship exists between the Borrowers and Jeffrey H. Leavitt, Esq., P.C.” Additionally, Leavitt submitted, among other things, the consolidated note and consolidated mortgage, which both stated that the monthly payment of principal and interest, in the amount of $3,364.70, would be just part of a larger monthly payment required by the security instrument, which would include taxes, insurance, and other charges.”

Architects, similar to attorneys, can be liable for general torts as well as breach of contract.  For the most part, it’s one or the other.  In Junger v John V. Dinan Assoc., Inc.  2018 NY Slip Op 06232 [164 AD3d 1428]  September 26, 2018  Appellate Division, Second Department we see how the claims are evaluated.

” The plaintiffs commenced this action alleging breach of contract, breach of duty,  rofessional negligence, and fraud against the architects who prepared plans in connection with the  construction of the plaintiff Mark Junger’s personal residence located in Monsey. The defendants John V. Dinan Associates, Inc. (hereinafter Dinan), and Stephen C. Leventis Architect (hereinafter [*2]Leventis; hereinafter together the Dinan defendants), moved, and the defendants Jada Construction & Development, Inc., and Jada Construction, Inc. hereinafter together the Jada defendants), separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them.

A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Failure to make that initial showing requires denial of the motion, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; St. Luke’s-Roosevelt Hosp. v American Tr. Ins. Co., 274 AD2d 511 [2000]; Greenberg v Manlon Realty, 43 AD2d 968 [1974]).

We disagree with the Supreme Court’s determination granting that branch of the Dinan defendants’ motion which was for summary judgment dismissing the cause of action alleging professional negligence insofar as asserted against them. The Dinan defendants failed to demonstrate their prima facie entitlement to judgment as a matter of law because they did not submit evidence that the architectural plans and designs were proper, conformed to applicable professional standards, and did not deviate from the design as intended (see Kung v Zheng, 73 AD3d 862, 863 [2010]). The Dinan defendants also failed to offer evidence demonstrating that their plans and designs were not used to construct the residence. Since the Dinan defendants failed to meet their prima facie burden, we need not consider the sufficiency of the plaintiffs’ papers in opposition to this branch of their motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).

However, we agree with the Supreme Court’s determination granting those branches of the Dinan defendants’ motion which were for summary judgment dismissing the causes of action alleging breach of duty and fraud insofar as asserted against them. The cause of action alleging breach of duty was duplicative of the cause of action alleging professional negligence. Moreover, the plaintiffs’ allegations supporting the cause of action to recover damages for fraud lacked the requisite specificity (see Orchid Constr. Corp. v Gonzalez, 89 AD3d 705, 707-708 [2011]; Morales v AMS Mtge. Servs., Inc., 69 AD3d 691, 692 [2010]). “Generally, a cause of action alleging breach of contract may not be converted to one for fraud merely with an allegation that the contracting party did not intend to meet its contractual obligations” (Refreshment Mgt. Servs., Corp. v Complete Off. Supply Warehouse Corp., 89 AD3d 913, 914 [2011]; see New York Univ. v Continental Ins. Co., 87 NY2d 308, 318 [1995]).”

In Jonns v Fischbarg  2019 NY Slip Op 31919(U) July 3, 2019 Supreme Court, New York County
Docket Number: 150729/2017 Judge Kathryn Freed gives a nice cogent explanation of two recurring legal malpractice principles.  One is how the statute of limitations is calculated and the other is whether multiple causes of action.  We’ll look at the duplication between legal malpractice claims and breach of fiduciary duty claims.

“In August of 2010, Jonns, together with a group of investors, sought to purchase the Charles Restaurant from Dorsia 8:30 LLC (“Dorsia”). (Id. at 2.) Jonns retained Fischbarg as the attorney on behalf of the investors to facilitate the transaction. (Id.) In doing so, Jonns sought to ensure that a limited liability company (“LLC”) would be formed absolving him and the investors of personal liability from their operation of the Charles Restaurant once the transaction was completed. (Id. at 2-3.) They also wanted Fischbarg to apply for sale-of-liquor licenses from the New York State Liquor Authority (“the SLA”). (Id. at 3.)
Unbeknownst to Jonns, Fischbarg also acted as the attorney for Dorsia. 1 (Id.) Nor did Fischbarg inform him that he should purchase Dorsia through an LLC if he wanted to shield his personal liability in maintaining the Charles Restaurant. (Id.) Thus, on August I l, 20 l 0, Jonns signed a purchase agreement for the Charles Restaurant in his personal capacity. (Id.) As a result, Jonns assumed up to $200,000 worth of Dorsia’s debt that existed on the date of the  signing, responsibility for Dorsia’s obligations under the lease, and the obligation to indemnify and hold Dorsia harmless for any claims arising from the Charles Restaurant’s operation. (Id.) Fischbarg
reassured Jonns that those obligations and liabilities would subsequently be assigned to an LLC
that would be owned by the investors. (Id.)”

“The second issue presented to this Court by Fischbarg’s reargument motion is whether the
prior decision correctly allowed Jonns to proceed with his cause of action for breach of fiduciary
duty. (See Doc. 39 at 1.) His arguments for dismissing the claim for breach of fiduciary duty are
identical to the ones he advanced to dismiss the claim for legal malpractice. (Doc. 51 at 18 (“For
the same reasons … [Jonns’] claim for breach of fiduciary duty is time barred and the continuous
representation doctrine does not apply.”).)

Again, as set forth in the prior decision, “New York law does not provide a single statute
of limitations for breach of fiduciary duty claims. Rather, the choice of the applicable limitations
period depends on the substantive remedy that the plaintiff seeks.” (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009).) As with legal malpractice claims, on a claim for breach of fiduciary duty, “[t]he continuous representation doctrine tolls the running of the statute of limitations on a cause of action against a professional defendant only so long as the defendant continues to represent the plaintiff in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship.” (Transp. Workers Union of Am. Local JOO AFL-CIO v Schwartz, 32 AD3d 710, 713 [1st Dept 2006] (internal quotations omitted).) Therefore, this Court again concludes that Jonns’ claim for breach of fiduciary. duty is timely because the complaint alleged that Fischbarg continued in his efforts to transfer Jonns’ liabilities to Crazy Asylum until at least July of 2016 (see Doc. 41 at 7), and because those efforts clearly pertained to the handling of the 20 I 0 transaction.

Last, this Court finds that the claims for breach of fiduciary duty and legal malpractice are
not duplicative. A claim for breach of fiduciary duty is duplicative when it is “predicated on the
same allegations and seek[s] relief identical to that sought in the malpractice cause of action.”
(Estate of Neve/son v Carro, Spanbock, Kaster & Cuiffo, 230 AD2d 399, 400 [I st Dept 2002).)
As concluded in the prior order, the underlying factual allegations for each cause of action
are slightly different: “The core of Jonns’ claim for breach of fiduciary duty is that Fischbarg
represented both the buyer and the seller during the business transactions over the Charles
Restaurant … whereas the crux of his claim for legal malpractice is that he has become personally
liable for the losses of the business because Fischbarg failed to draft the purchase agreement as
being between Dorsia and an LLC, which would have absolved Jonns of that liability.” (Doc. 46
at 16.) Although Jonns’ complaint included a laundry-list of factual allegations for his legal
malpractice claim-some of which actually pertain to a breach of fiduciary duty, such as the
allegation that Fischbarg “simultaneously represent[ ed] both [ Jonns] and Dorsia” (Doc. 41 at 9)-his complaint has a narrowly tailored set of facts for his breach of fiduciary duty claim (id. at 11-
12). Thus, contrary to Fischbarg’s arguments, the allegations underlying each claim therefore do
not “almost exactly track” (Doc. 51 at 21) one another.

After carefully considering the parties’ arguments, the motion for reargument is denied. “

In Jonns v Fischbarg  2019 NY Slip Op 31919(U) July 3, 2019 Supreme Court, New York County
Docket Number: 150729/2017 Judge Kathryn Freed gives a nice cogent explanation of two recurring legal malpractice principles.  One is how the statute of limitations is calculated and the other is whether multiple causes of action.  We’ll look at the statute of limitations today.

“In August of 2010, Jonns, together with a group of investors, sought to purchase the Charles Restaurant from Dorsia 8:30 LLC (“Dorsia”). (Id. at 2.) Jonns retained Fischbarg as the attorney on behalf of the investors to facilitate the transaction. (Id.) In doing so, Jonns sought to ensure that a limited liability company (“LLC”) would be formed absolving him and the investors of personal liability from their operation of the Charles Restaurant once the transaction was completed. (Id. at 2-3.) They also wanted Fischbarg to apply for sale-of-liquor licenses from the New York State Liquor Authority (“the SLA”). (Id. at 3.)
Unbeknownst to Jonns, Fischbarg also acted as the attorney for Dorsia. 1 (Id.) Nor did Fischbarg inform him that he should purchase Dorsia through an LLC if he wanted to shield his personal liability in maintaining the Charles Restaurant. (Id.) Thus, on August I l, 20 l 0, Jonns signed a purchase agreement for the Charles Restaurant in his personal capacity. (Id.) As a result, Jonns assumed up to $200,000 worth of Dorsia’s debt that existed on the date of the  signing, responsibility for Dorsia’s obligations under the lease, and the obligation to indemnify and hold Dorsia harmless for any claims arising from the Charles Restaurant’s operation. (Id.) Fischbarg
reassured Jonns that those obligations and liabilities would subsequently be assigned to an LLC
that would be owned by the investors. (Id.)”

“Once again, this Court sets forth the following analytical framework for when a legal malpractice action must be commenced: A legal malpractice action must be commenced within the three-year statute of limitations. (See McCoy v Feinman, 99 NY2d 295, 301 [2002).) In determining when the statute of limitations begins to run, courts have held that the “accrual time is measured from the day an actionable injury occurs … . “(McCoy, 99 NY2d at 301.) “What is important is when the malpractice was committed, not when the client discovered it.” (Id. (quotations omitted).) The limitations period, however, may be tolled where there is a continuing attorney-client relationship pertaining specifically to the matter in which the attorney committed the alleged malpractice (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001 ]), and where there was “a mutual understanding of need for further services in connection with that same subject matter” (Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st Dept 2018)). ”

“Here, Jonns alleges in his complaint that there were inadequacies with how the transaction
was handled. Specifically, Jonns alleged that there were inadequacies relating to both his personal
liabilities as well as those of the other investors (Doc. 41 at 6-9), and he further alleged that
Fischbarg assured him, subsequent to the closing, that he would take necessary steps to transfer Jonns’ liabilities to Crazy Asylum3 (id. at 6-7.) Thus, this is a situation where the client was
“acutely aware of [the] need for further representati~:m on the specific subject matter underlying
the malpractice claim.” (Johnson, 129 AD3d at 69.) Further, Fischbarg’s continued representation
to transfer Jonns’ personal liabilities to an LLC was not merely a general continuing relationship
between lawyer and client, but rather pertained “specifically to the matter in which [he] committed
the alleged malpractice,” (Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]), i.e., the handling of
the 201 O transaction. Since the complaint alleged4 that Fischbarg continued in his efforts to transfer
Jonns’ liabilities to Crazy Asylum until at least July of 2016 (Doc. 41 at 7), and since the instant
action was commenced in March of2017 (Doc. 46 at 5), this Court therefore adheres to its original
determination that Jonns’ claim for legal malpractice is timely. “

Client hires attorney to do Surrogate’s Court case.  Attorney hires CPA to do Estate tax returns.  CPA fails to file the returns timely and loses a six-figure refund on the statute of limitations.  CPA is sued and motion practice follows.  In Mazur Carp & Rubin, P.C. v Cohen & Schaeffer, C.P.A., P.C.  2019 NY Slip Op 31735(U)  June 18, 2019  Supreme Court, New York County    Docket Number: 153583/2014  Judge: Kathryn E. Freed mostly finds for Plaintiff.

“Plaintiffs Mazur Carp & Rubin, P.C. (“Mazur CarP”), Karen Cashman (“Cashman”), and David Gallagher (“Gallagher”) move, pursuant to CPLR 3212, for summary judgment on their causes of action for accounting malpractice and breach of1:contract. They further move to dismiss the counterclaims of defendant Cohen & Schaeffer, C.P.A., P.C. (“Cohen & Schaeffer”). Cohen & Schaeffer opposes the motion and cross-moves, pursuant to CPLR 3212, for summary judgment
on its counterclaims. Plaintiffs oppose the cross-motion. After oral argument, and after reviewing
the parties’ papers and the relevant statutes and caselaw, it is ordered that the motion and cross
motion are decided as follows.”

“The first issue before this Court is whether plaintiffs have established a prima facie case of
accounting malpractice against Cohen & Schaeffer. This Court finds that plaintiffs have done so.
“A claim of professional negligence requires proof that there was a departure from accepted
standards of practice and that the departure was a proximate cause of [plaintiff’s] injury.” (D.D .
Hamilton Textiles, Inc. v Estate of Mate, 269 AD2d 2 I 4, 215 [1st Dept 2000].) Plaintiffs’ expert
witness, Basile, identifies several provisions of Title 31 of the Code of Federal Regulations from
which Cohen & Schaeffer may have departed. (Doc. 22.) Specifically, Basile cites § 10.36 of the
statute, which provides that accounting firms shall have “adequate procedures” to ensure
compliance with regulations governing accounting standards and practices. (Id. at 7-8.) Plaintiffs
have further shown that there was a substantial lapse in comunication between them and Cohen
& Schaeffer (Doc. 16 at 25), and that Cohen & Schaeffer produced the prepared tax return in April
of 2012 (Doc. 8 at 9), over one year after the statute of limitations for a federal tax refund had run. Because the estate would have received a refund but for Cohen & Schaeffer’s late preparation of
Grant’s individual taxes, plaintiffs have established their prima facie case on their first cause of
action for accounting malpractice. ”

“The last issue before this Court is whether Cohen & Schaeffer’s counterclaims for breach
of contract and negligence should be dismissed. (Doc. 8 at 18-20.) As previously discussed, the
breach of contract claim is dismissed pursuant to CPLR 3211 (a)( 1 ). Thus, the only remaining issue
is whether Cohen & Schaeffer’s counterclaim for negligence must be dismissed. “To prevail on a negligence cause of action, a [party] must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages.” (MVB Collision, Inc. v Allstate Ins. Co., 129 AD3d I 041, 1042 [2d Dept 2015].) This Court cannot ascertain, based on the papers, what, if any, damages Cohen & Schaeffer has suffered; if any party has suffered damages in this litigation, it is the estate. Moreover, in asserting its counterclaims in its answer, Cohen & Schaeffer did not allege that it sustained damages. (Doc. 11 at 5-6.) Rather, defendant pleaded as follows:
“Consequently, plaintiff … is obligated to pay any damages, including but not limited to any ‘lost’
refunds that might, otherwise, have inured to the benefit: of, inter alia, the Estate of LUCIE
MACKEY GRANT.” (Id. at 6.) Thus, Cohen & Schaeffer’s own pleading suggests that it is the estate which has sustained damages. Thus, the branch of Mazur Carp’s motion seeking to dismiss the counterclaim for negligence is granted pursuant to CPLR 321 l(a)(l). “

Departure, Proximate Cause and Ascertainable Damages are the holy triumvirate of legal malpractice.  Miami Capital, LLC v Hurwitz  2019 NY Slip Op 05332  Decided on July 2, 2019
Appellate Division, First Department illustrates what happens when one or more of these elements are missing, or at best, speculative.

“Defendant’s motion was properly granted because while plaintiff anticipates that it could be subject to a rescission claim at some point in the future, such alleged damages are purely speculative and not yet ripe. Since damages in a legal malpractice case are designed “to make the injured client whole” (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 [1990]), having failed to plead actual damages, plaintiff’s complaint fails to state a claim (see Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133 AD3d 428 [1st Dept 2015], lv denied 27 NY3d 904 [2016]; Lavanant v General Acc. Ins. Co. of Am., 212 AD2d 450 [1st Dept 1995]).

Plaintiff has also failed to establish defendant’s negligence by alleging that he did not exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see O’Callaghan v Brunelle, 84 AD3d 581 [1st Dept 2011], lv denied 18 NY3d 804 [2012]). The contract of sale placed the burden on the seller to obtain any necessary court approval for the sale of its property. As seller’s counsel advised defendant that the seller did not need court approval because the property was not “substantially all” of its assets (see N-PCL 510), plaintiff has not adequately pled that defendant breached his duty of care as its lawyer by not obtaining court approval for the sale.”

 

Kislev Partners, LLP v Sidley LLP  2019 NY Slip Op 31850(U)  June 27, 2019 Supreme Court, New York County Docket Number: 152739/2018 Judge: Saliann Scarpulla is an example of a multi-million dollar tax shelter fraud case in which Plaintiffs waited too long to sue.

“Plaintiffs claim that, in late 2002, they identified a potential real estate project in Lower  Manhattan. They anticipated earning substantial profits on the project, which ultimately resulted in a “16-story residential tower designed by the renowned architect Richard Meier.” To shield themselves from tax liability on those profits, plaintiffs decided to acquire the project property through an entity that possessed embedded tax losses (complaint, ~~ 2, 5).

Plaintiffs were allegedly introduced to the idea of using a tax shelter to acquire the property by Lance Valdez (“Valdez”). Valdez convinced plaintiffs that, rather than acquire the property directly, they should instead assign the right to purchase the property to Valdez and ultimately close through Valdez’s entity, Kislev. “In convincing Plaintiffs that the tax aspects of purchasing Kislev worked, Valdez relied heavily on a pre-prepared Sidley Opinion addressed to Kislev, which exhaustively detailed purported facts surrounding Kislev’s formation and operation” (complaint,~ 5).

With respect to the Sidley opinion letter (the “Opinion Letter”), plaintiffs allege: “In or around July 2001, Valdez and Sidley developed a “Reliance Opinion” addressed to Valdez and entities controlled by Valdez, which opined on the ‘tax bases’ allegedly held by the Valdez entities” (complaint,~ 33). According to plaintiffs, Valdez shared with them the Opinion Letter, which concluded that Kislev had a $142 million tax basis in Euros and that it would incur an ordinary loss in that amount upon sale of the Euros. “Unknown to Plaintiffs, Valdez retained Sidley more than a year and half before the transaction to create the legal opinion for Kislev Partners, which he intended to use to
market to clients at a later date” (complaint, if 5).

Of this alleged scheme between Sidley and Valdez, plaintiffs allege that, unknown to them, but known to Sidley lawyers, the Opinion Letter could not support the supposed tax treatment represented, including in particular the claimed basis in Euros purportedly held by Kislev and sold to plaintiffs. Plaintiffs allege that Valdez provided a copy of the Opinion Letter to them to induce them to pay Valdez the $5,000,000 fee he demanded. Plaintiffs further allege that, at their request, Sidley made various changes to the Opinion Letter, including agreeing to change the addressee of the original Opinion Letter from Valdez to “To Whom It May Concern” at Kislev Partners address.” ”

“”‘The test as to when a plaintiff should have discovered an alleged fraud is an objective one.’ Thus ‘plaintiffs will be held to have discovered the fraud when it is established that they were possessed of knowledge of facts from which [the fraud] could be reasonably inferred”‘ (Gorelick v Vorhand, 83 AD3d 893, 894 [2d Dept 2011 ]). On a motion to dismiss, the burden is on the defendant to establish that plaintiff discovered the fraud or was on inquiry notice of the fraud more than two years prior to the commencement of the action:
[W]here the circumstances are such as to suggest to a person of ordinary
intelligence the probability that he has been defrauded, a duty of inquiry
arises, and if he omits that inquiry when it would have developed the truth,
and shuts his eyes to the fact which call for investigation, knowledge of the
fraud will be imputed to him.
(Aozara Bank, Ltd. V Credit Suisse Group, 144 AD3d 437, 438 [1st Dept 2016][intemal
quotation marks and citations omitted]).

“A court may find that plaintiffs were on inquiry notice where there is information concerning the fraudulent acts available to the plaintiffs in the public domain (Aldrich v March & McLennan Cos., Inc., 52 AD3d 435, 436 [1st Dept 2008][“a finding that plaintiffs were on inquiry notice of the alleged fraud … is supported by the extensive information that was available to plaintiffs in the public domain. Such information included the lawsuits commenced in the early 1980’s … involving nondisclosure of material information”).

Moreover, plaintiffs, according to their own submissions, had actual notice of the alleged fraud in September 2012 when they settled with the IRS. It was not until December of 2014, more than two years later, that the parties entered into the tolling agreement. Plaintiffs commenced this action in March of2018. Thus, under either standard of actual or inquiry notice, plaintiffs’ fraud;.. based claims are time-barred.

Like the fraud-based claims, plaintiffs’ unjust enrichment claim is barred by the applicable statutes oflimitations. Accordingly, I grant Sidley’s motion to dismiss, pursuant to CPLR 3211 (a) (5) and dismisses the complaint in its entirety as against it.”

While it is fine and well to identify a departure from good practice, it is similarly necessary to prove all the elements of legal malpractice.  Even more important, it is necessary to follow motion practice and procedures.

Karimian v Karlin  2019 NY Slip Op 05193  Decided on June 27, 2019  Appellate Division, First Department is a good example.

“Plaintiff failed to demonstrate a reasonable excuse for his default in responding to defendants’ motion to dismiss the complaint (CPLR 5015[a][1]; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). His proffered excuse, namely, that he thought his deadline for opposing the motion had been postponed indefinitely pending the court’s decision on his motion to seal the court file, is belied by the record. Plaintiff’s opposition papers were due October 13, 2017, and plaintiff concedes that defendants had refused to consent to a further extension of that deadline. Nevertheless, plaintiff waited until October 13 to request an extension of time, in his order to show cause to seal the court file. The motion court struck that relief when it signed the order to show cause. The other events that plaintiff claims sowed confusion in his mind occurred after the deadline for filing opposition papers had passed. Plaintiff’s status as a self-represented litigant does not alter this analysis (see Matter of Kent v Kent, 29 AD3d 123, 130-31 [1st Dept 2006]). Plaintiff recognized that his opposition papers would not be completed by the deadline, but, instead of submitting incomplete papers, he chose to rely on his optimistic belief that the court would grant his eleventh hour request for an extension of time.

We note that plaintiff also failed to demonstrate a meritorious defense to the motion to dismiss. He failed to show that his legal malpractice claims premised on defendants’ representation of him in the United States District Court for the Southern District of New York were not time-barred (see McCoy v Feinman, 99 NY2d 295, 300, 306 [2002]). He failed to show that his breach of fiduciary duty claims were not time-barred (see Block 2829 Realty Corp. v Community Preserv. Corp., 148 AD3d 567 [1st Dept 2017]; Access Point Med., LLC v Mandell, 106 AD3d 40, 45 [1st Dept 2013]). Although his legal malpractice claims premised on defendants’ representation of him in the United States Court of Appeals for the Second Circuit arguably were timely and not barred by collateral estoppel, plaintiff failed to show that defendants’ alleged failures caused him to lose on that appeal (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). Plaintiff’s cause of action for “Concealment and Failure to Self Report” is not viable because “there is no private right of action against an attorney or law firm for violations of the Code of Professional Responsibility or disciplinary rules” (Weinberg v Sultan, 142 AD3d 767, 769 [1st Dept 2016]).”

 

Many people take a look at a legal malpractice situation and stop after identifying a departure.  In more common language, after finding a mistake, the analysis ends.  Failure to identify and have all elements of legal malpractice will lead to failure. Sapienza v Becker & Poliakoff  2019 NY Slip Op 05218 Decided on June 27, 2019 Appellate Division, First Department is an example:

“Plaintiff’s fraud claim was properly dismissed, as plaintiff did not allege “actual pecuniary loss sustained” by plaintiff’s decedent individually “as the direct result of” defendants’ alleged fraud (Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996] [internal quotation marks omitted]), with “the requisite particularity under CPLR 3016(b)” (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). The alleged “lost opportunity” damages are too speculative to support a recovery, since a plaintiff cannot be compensated under a fraud cause of action “for what [he] might have gained” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142 [2017] [internal quotation marks omitted]).

The legal malpractice claim was also properly dismissed. Plaintiff did not allege “actual, ascertainable damages” incurred by plaintiff’s decedent “as a result of an attorney’s negligence” (Dempster v Liotti, 86 AD3d 169, 177 [1st Dept 2011]; see Humbert v Allen, 89 AD3d 804, 806 [2d Dept 2011]).”

Urias v Daniel P. Buttafuoco & Assoc., PLLC  2019 NY Slip Op 05180 Decided on June 26, 2019 Appellate Division, Second Department speaks about Judiciary Law § 487 and legal malpractice.  In this summary judgment case, the legal malpractice claims remain in view of opposing experts.  The JL claims are dismissed.

“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice. The defendants Daniel P. Buttafuoco & Associates, PLLC, and Daniel P. Buttafuoco (hereinafter together the Buttafuoco defendants) represented the plaintiff in a medical malpractice action in Suffolk County, which resulted in a settlement agreement, and in which the Buttafuoco defendants were awarded a certain sum of attorney’s fees that was confirmed by the Supreme Court, Suffolk County. The defendant John Newman represented the plaintiff in a guardianship proceeding in Nassau County, which also resulted in an approval of the settlement and award of attorney’s fees in the medical malpractice action by the Supreme Court, Nassau County. In this action, the plaintiff alleges, among other things, that the Buttafuoco defendants and Newman were negligent in their representation of the plaintiff and that the Buttafuoco defendants committed fraud and violated [*2]Judiciary Law § 487 with respect to their recovery of attorney’s fees. The first through fifth causes of action seek damages from the Buttafuoco defendants, alleging a violation of Judiciary Law § 487, breach of fiduciary duty, breach of the retainer agreement, conversion of the settlement proceeds and fraud, and fraud, respectively. The sixth cause of action seeks damages from the Buttafuoco defendants and Newman for legal malpractice.”

“The second and third causes of action, which allege breach of fiduciary duty and breach of contract, respectively, were duplicative of the legal malpractice cause of action, since those causes of action are based on the same facts and do not allege distinct damages (see Pacella v Town of Newburgh Volunteer Ambulance Corps. Inc., 164 AD3d 809, 814; Balan v Rooney, 152 AD3d 733, 734; Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 654; Federico v Brancato, 144 AD3d 965, 967). In addition, the first, fourth, and fifth causes of action, alleging a violation of Judiciary Law § 487, conversion of the settlement proceeds and fraud, and fraud, respectively, concern whether the Buttafuoco defendants engaged in fraudulent conduct in obtaining an award of attorney’s fees in the medical malpractice action. The plaintiff’s remedy for those alleged acts “lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the civil judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action” (Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215; see Chibcha Rest., Inc. v David A. Kaminsky & Assoc., P.C., 102 AD3d 544, 545; Parker & Waichman v Napoli, 29 AD3d 396, 399; North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427). Accordingly, we agree with the Supreme Court’s determination granting those branches of the Buttafuoco defendants’ motion which were for summary judgment dismissing the first through fifth causes of action, and denying those branches of the plaintiff’s cross motion which were for summary judgment on the issue of liability on the second and third causes of action.

We also agree with the Supreme Court’s determination denying that branch of the plaintiff’s cross motion which was for summary judgment on the sixth cause of action, to recover damages for legal malpractice, insofar as asserted against the Buttafuoco defendants. There are conflicting opinions in the expert affirmations as to whether the Buttafuoco defendants failed to exercise the degree of reasonable skill and competence commonly possessed by an ordinary member of the legal profession and thereby caused harm to the plaintiff (see generally 762 Westchester Ave. Realty, LLC v Mavrelis, 167 AD3d 684, 685; Landa v Blocker, 87 AD3d 719, 722; Scartozzi v Potruch, 72 AD3d 787, 788).”