In this case the estates loses a claim for fees because of bad service of process. Estate of Norman Perlman v Kelley  2019 NY Slip Op 06475 Decided on September 11, 2019 Appellate Division, Second Department goes on to catalog how and why the service was bad.

“The plaintiff commenced this action on December 31, 2015, by filing a summons and complaint. On January 21, 2016, the plaintiff filed an affidavit of service with the Kings County Clerk’s Office, which stated that on January 14, 2016, service was effectuated upon the defendant pursuant to CPLR 308(2) by delivery of the summons and complaint to a paralegal who worked at the defendant’s law office. The affidavit of service did not indicate that the summons and complaint had been mailed to the defendant. On or about March 17, 2016, the plaintiff moved for leave to enter a default judgment against the defendant. The affirmation of service attached to the motion papers stated, inter alia, that the plaintiff had mailed a “second copy” of the summons and complaint to the defendant on February 13, 2016. However, there is no evidence in the record that the plaintiff ever filed an affidavit of service with the Kings County Clerk’s Office indicating that the summons [*2]and complaint had been mailed to the defendant. The defendant opposed the plaintiff’s motion, contending, inter alia, that the motion was premature, and cross-moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated February 22, 2017, the Supreme Court, inter alia, granted the defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The plaintiff thereafter moved, inter alia, for leave to reargue his opposition to the defendant’s cross motion. In an order dated June 15, 2017, the court, inter alia, granted reargument and, upon reargument, adhered to its original determination granting the defendant’s cross motion. The plaintiff appeals.

CPLR 308(2) provides, in pertinent part, that personal service may be made upon a defendant by delivery of the summons upon “a person of suitable age and discretion at the actual place of business . . . of the person to be served and by . . . mailing the summons by first class mail to the person to be served at his or her actual place of business . . . , such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing whichever is effected later; service shall be complete ten days after such filing.”

“Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with'” (Josephs v AACT Fast Collections Services., Inc., 155 AD3d 1010, 1012, quoting Gray-Joseph v Shuhai Liu, 90 AD3d 988, 989; accord Munoz v Reyes, 40 AD3d 1059, 1059; Ludmer v Hasan, 33 AD3d 594, 594). “CPLR 308(2) requires strict compliance and the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made” (Samuel v Brooklyn Hosp. Ctr., 88 AD3d 979, 980).

Here, the mailing of the summons to the defendant occurred more than 20 days after the delivery upon a person of suitable age and discretion. Additionally, the plaintiff never filed an affidavit of service with the Kings County Clerk’s Office indicating that the mailing had been effectuated. Accordingly, the service of process upon the defendant did not comply with the strict requirements of CPLR 308(2), and the time for the defendant to serve an answer never began to run (see CPLR 3012).

Contrary to the plaintiff’s contention, the delay in mailing was not a mere “technical infirmity” that may be overlooked by the court pursuant to CPLR 2001 (Ruffin v Lion Corp., 15 NY3d 578, 582 [internal quotation marks omitted]). “In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” (id. at 582 [internal quotation marks omitted]). As the Court of Appeals noted in Ruffin, a defendant’s “actual receipt of the summons and complaint is not dispositive of the efficacy of service” (id. at 583). “For example, simply mailing the documents to defendant or e-mailing them to defendant’s Web address would present more than a technical infirmity, even if defendant actually receives the documents, inasmuch as these methods in general introduce greater possibility of failed delivery” (id.).

A mailing sent within the wrong time frame, like a mailing sent by the wrong method (see id.Brown v State of New York, 114 AD3d 632), increases the likelihood that a party will not receive proper notice of a legal proceeding. The first 20-day window set forth in CPLR 308(2) serves an important function. If the delivery and mailing required by that statute are not made within a short time of one another, there is a greater likelihood that one or both sets of pleadings will be mislaid, or, at the very least, that confusion will arise as to how much time the defendant has to respond—both of which appear to have occurred here. Further, the requirement that an affidavit of service be filed within 20 days of the delivery or mailing, whichever is effected later, also serves an important function. Timely filing of the affidavit of service is designed to give notice as to the plaintiff’s claim of service and permit the defendant to calculate the time to answer. Where the affidavit of service claims that delivery but not mailing occurred within the 20-day period, yet the plaintiff intends to later claim that a timely mailing did occur, additional confusion is created, a defendant may be prejudiced by reliance upon the publicly filed affidavit which only partially [*3]disclosed the plaintiff’s claim of service, and such prejudice may preclude the prospect that the failure to file the affidavit could be cured (cf. Khan v Hernandez, 122 AD3d 802, 803).

We therefore agree with the Supreme Court’s determination that the plaintiff’s failure to comply with the delivery and mailing requirements of CPLR 308(2) in the time prescribed by the statute was a jurisdictional defect, and that the plaintiff’s late mailing of the summons and complaint after the statutory time period did not cure the defect in service. The plaintiff’s remaining contentions are without merit. Accordingly, we agree with the court’s determination, upon reargument, to adhere to its prior determination granting the defendant’s cross motion to dismiss the complaint for lack of personal jurisdiction.”

In an ironic example of mistakes, Plaintiff’s legal malpractice case against an individual attorney is dismissed not simply for the failure to file an affidavit of service but for the failure to ask the court to issue an order permitting late service of the affidavit.

Zheleznyak v Gordon & Gordon, P.C. 2019 NY Slip Op 06536 Decided on September 11, 2019 Appellate Division, Second Department explains how it should be done.

“Following the commencement of this action on June 21, 2017, the defendant Leslie Nizin moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction, based upon the alleged failure by the plaintiff to serve him within 120 days after the filing of the summons and complaint (see CPLR 306-b). The plaintiff had failed to file with the clerk of the court an affidavit of service of the summons and complaint as required by CPLR 308(4). However, in his opposition to Nizin’s motion, the plaintiff submitted a copy of an affidavit of service. The Supreme Court granted Nizin’s motion, and the plaintiff appeals.

While the failure to timely file an affidavit of service with the clerk of the court as required by CPLR 308(4) may, in the absence of prejudice, be corrected by court order pursuant to CPLR 2004 (see Khan v Hernandez, 122 AD3d 802, 803), in this case, the plaintiff failed to seek such relief, and the Supreme Court declined to extend this time sua sponte (see Deb v Hayut, 171 AD3d 862, 863). Accordingly, we agree with the court’s determination to grant that branch of his motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction (see Deb v Hayut, 171 AD3d at 863; see also Estate of Norman v Perlman v Kelley, ___ AD3d ___ [Appellate Division Docket No. 2017-03966; decided herewith]).”

Ripa v Petrosyants  2019 NY Slip Op 32638(U) August 15, 2019 Supreme Court, Kings County Docket Number: 510658/17 restates the age old principle that one may not successfully sue an attorney unless there was an attorney-client relationship, or something very, very close to it.  This was a restaurant investment gone bad.  Judge Leon Ruchelsman  picks up:

“To succeed on a claim malpractice it must be shown that the attorney failed to act with the “ordinary reasonable skill and knowledge commonly possessed by a member of the legal professional (Darby & Darby, P.C. v; VST International, Inc., 95 NY2d 308, 716 NYS2d 378 [2000]). As a preliminary matter, of course, there must be evidence of an attorney client: relationship (Wei Cheng Chang v. Pi, 288 AD2d 378, 733 NYS2d 471 [2d Dept., 2001]) . A client’s unilateral belief that an attorney client
relationship existed is insufficient to establish such relationship
even though a formal retainer agreement is not required (Terio v.
Spodek, 63 AD3d 719, 880 NYS2d 679 [2d Dept., 2015]). Thus, “to
prove an attorney-client relationship, there must be an explicit
undertaking “to perform a specific task” (Nelson v. Roth, 69 AD3d
912, 893 NYS2d 605 [2d Dept., 2010]).

The plaintiff has asserted an attorney client relationship existed but has failed to present any evidence supporting that contention. The plaintiff asserts that Ofshtein “billed several thousand dollars for legal services” (Affirmation in Opposition, 9). However, the plaintiff has not presented any evidence of any such bills that would conclusively substantiate the allegation contained in the complaint. Thus, ‘that allegation is conclusory
and, unsupported. Consequently, the plaintiff has failed to establish an attorney client relationship and consequently the motion to dismiss the malpractice claim is granted.”

One familiar trope in legal malpractice cases is the workers’ compensation – personal injury situation in which a plaintiff is injured on the job, but may have claims against non-employers as well as against the employer.  Schwenger v Weitz, Kleinick & Weitz, LLP 2019 NY Slip Op 2605(U) September 4, 2019 Supreme Court, New York County Docket Number: 159856/2018 Judge: Robert D. Kalish is a varient of that issue.  He was determined to be an employee.  However, there was overlap between his WC counsel, his personal injury counsel and his later appellate counsel.  After the appeal, who was the attorney and who let the WC case lapse?

“Based upon the instant motion papers, there appears to be no dispute that the underlying action was initially brought in Supreme Court, New York County, in 2003. From early on it apparently became clear that a significant issue in the underlying action concerned whether Plaintiff was an employee of NYU such that his exclusive remedy would be pursuant to the Workers’ Compensation Law (the “applicability issue”). According to Mittman Defendants, they were retained by Defendant Paul B. Weitz, Esq. and Defendant Weitz, Kleinick & Weitz, LLP (“Weitz Firm”) (collectively, “Weitz Defendants”), sometime in 2004, to litigate the applicability issue.

There is no dispute that between 2004 and 2011, Mittman Defendants made multiple appearances before the Workers’ Compensation Board to litigate the applicability issue. There also appears to be no dispute that on or about March 2013, the full panel of the Workers’ Compensation Board issued a decision (the “2013 Decision”) determining that there was an
employee-employer relationship between Plaintiff and NYU and, as such, Plaintiffs exclusive remedy was through the Workers’ Compensation Law. There also appears to be no dispute that shortly after the 2013 Decision, Mittman and Plaintiff communicated via e-mail, wherein Mittman expressed to Plaintiff that Plaintiffs only recourse was to take an appeal before the Appellate Division, Third Department; and Mittman further  communicated that he was “not in a position” to perfect such an appeal on Plaintiffs behalf. (See Mittman Aff. in Supp. if 14-20; Schwenger Aff. in Opp. iii! 13-20, Ex. F [March 2013 Email Exchange].) The parties further agree that Plaintiff filed a notice of appeal pro se before the Third Department and was eventually represented by separate counsel in said appeal. (Id.) ”

“On the instant motion, Mittman Defendants have established prima facie that the instant action against them is barred by the statute of limitations. The alleged malpractice by Mittman Defendants-purportedly mishandling the applicability issue before the Workers’ Compensation Board-happened no later than March 2013.

The Court finds that Plaintiffs argument that the statute of limitations was tolled, pursuant to the continuous representation doctrine, is unavailing. Here, there is no dispute that from March 2013 to present, Mittman Defendants were not representing Plaintiff with respect to
a specific legal matter. As such, that Plaintiff may have called Mittman Defendants in August 2016 or that Mittman Defendants may have arguably been listed as counsel of record before the Workers’ Compensation Board is insufficient to raise an issue of continuous representation.

Further, there is no dispute that Mittman Defendants communicated to  Plaintiff that they were not in a position to continue their  representation of Plaintiff in the appeal of the 2013 Decision before the Third Department and that Plaintiff found new counsel to represent him thereafter. As such, there was no reasonable basis for Plaintiff to conclude that Mittman Defendants were still actively involved in Plaintiffs claim.

As such, the complaint must be dismissed as against Mittman Defendants.”

Many a snow and ice case has been lost over the years, and often there are attorney mistakes that accompany the loss.  Whether the mistake caused the loss is a legal malpractice question, and one which is illustrated in Blair v Loduca  2018 NY Slip Op 05744 [164 AD3d 637]
August 15, 2018 Appellate Division, Second Department.  The attorneys did not properly serve the underlying defendants, but the Second Department determined that the case could not be won.  Query:  Why did the attorneys take the case in the first place?

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

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

“In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v Patmar Props., Inc., 123 AD3d 890, 890 [2014]; Kruger v Donzelli Realty Corp., 111 AD3d 897 [2013]; Smith v Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839 [2012]; Meyers v Big Six Towers, Inc., 85 AD3d 877 [2011]). “Under the so-called ‘storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” (Marchese v Skenderi, 51 AD3d 642, 642 [2008]; see Solazzo v New York City Tr. Auth., 6 NY3d 734 [2005]; Dumela-Felix v FGP W. St., LLC, 135 AD3d 809, 810 [2016]; McCurdy v KYMA Holdings, LLC, 109 AD3d 799, 799 [2013]; Smith v Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839, 840 [2012]; Weller v Paul, 91 AD3d 945, 947 [2012]; Mazzella v City of New York, 72 AD3d 755, 756 [2010]). If a storm is ongoing, and a property owner elects to remove snow, the owner must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177 [2012]; Petrocelli v Marrelli Dev. Corp., 31 AD3d 623 [2006]; Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546 [2006]; Chaudhry v East Buffet & Rest., 24 AD3d 493 [2005]). In such an instance, that property owner, if moving for summary judgment in a slip-and-fall case, must demonstrate in support of his or her motion that the snow removal efforts he or she undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177).

In support of their motion for summary judgment dismissing the complaint in this action, the defendants submitted the plaintiff’s deposition testimony, the deposition testimony of the building’s doorman, the affidavit of a meteorologist, and certified climatological data. These submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress (see Aronov v St. Vincent’s Hous. Dev. Fund Co., Inc., 145 AD3d 648, 649 [2016]; Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177; Ali v Village of Pleasantville, 95 AD3d 796, 797 [2012]). Since the defendants made a prima facie showing that the storm in progress rule applied to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident (see Baker v St. Christopher’s Inn, Inc., 138 AD3d 652, 653 [2016]; Burniston v Ranric Enters. Corp., 134 AD3d 973, 974 [2015]; Meyers v Big Six Towers, Inc., 85 AD3d 877, 877-878 [2011]; Alers v La Bonne Vie Org., 54 AD3d 698, 699 [2008]). The plaintiff failed to raise a triable issue of fact.”

Bridge View Tower, LLC v Law Offs. of Boris Nikhman, Esq. & Vladimir Nikhman, Esq.  2019 NY Slip Op 51425(U) Decided on September 4, 2019
Civil Court Of The City Of New York, New York County Kraus, J.  is emblematic of what most defense attorneys think any legal malpractice case looks like…no focus, no proof, and merely an exercise in choler by a dissatisfied client.

The record at trial was scant and the facts were not clearly laid out. BVT did not offer a single document in evidence.

Michael Tong (Tong) testified for the BVT. Tong is a member of the BVT LLC. Tong testified that he was developing a property in Brooklyn and discovered some fraud on the part of the Condominium Board and brought suit on that basis. In October of 2016, BVT signed a retainer agreement with Defendants wherein Defendants agreed to represent BVT in Action 1.

Tong later became dissatisfied with Defendants’ services and fired Defendants. Tong did not state the date he fired Defendants. Tong testified that he hired a new attorney Martin Kohn to represent him. Tong testified he subsequently learned his action had been dismissed and that Martin Kohn refunded his retainer agreement.

Tong testified that he believed when he hired Defendants that a foreclosure action would subsequently be brought against him and he believed Defendants would represent him when that action was brought.

Tong testified that the foreclosure action was going to be consolidated or was consolidated with his case against the Condo Board, however there was no evidence of this submitted at trial or referenced in the court filings reviewed. Tong testified that Action 1 was dismissed because of some unspecified default on the part of Defendants. Tong testified that he lost the foreclosure action and that he blamed Defendants for said loss. Tong did not testify to any alleged damages incurred as a result of his action against the Board being dismissed, but he did testify that as a result of losing the foreclosure action he suffered damages of approximately $71,000 in the form of additional fees and penalties he was required to pay.

Tong testified that BVT recommenced his action against the Condo Board and that action was still pending as of the date of this trial. Tong alleges that he was adversely impacted by the dismissal Action 1 because it was not consolidated with the trial of the foreclosure action against him.

After Tong’s testimony, BVT rested and Defendants moved to dismiss. The court reserved decision on the motion.

Defendants then proceeded on their counterclaims. Vladimir Nikhman (VN) testified on behalf of Defendants. VN testified that Tong hired him in October 2015 to represent BVT in Action 1, and specifically to file an order to show cause. VN testified that he and Tong were friends and used to play poker together.

The parties signed a retainer agreement which was admitted in evidence (Ex A). BVT paid Defendants a $5000 retainer which was to be drawn down at the rate of $300 an hour for work done on Action 1. There was no provision in the retainer agreement for any billing beyond the initial $5000 retainer.

Initially, VN testified that he sent Defendants invoices every 60 days, but he produced no [*3]such invoices. VN then testified that he does not recall how often he sent Defendants invoices. VN testified that gave a document labeled “Time Sheet” to Tong as an invoice when he would come into the office. VN provided no detailed testimony about the nature of the work he did or the time he spent, or even his background and experience. VN did submit an invoice/time sheet (Ex C) however the court gives no weight to this document which is dated May 10, 2018, years after VN acknowledges he had been fired and well after the commencement of this action.

VN testified that his relationship with Tong deteriorated because Tong called him and emailed him incessantly and at inappropriate hours. VN acknowledged that Tong fired him and said that he only represented BVT for a period of three to four months.

VN testified that he and Tong had reached an agreement to do work beyond the amount of the initial $5000 retainer and that Tong gave him a check for an additional $2500.00 (Ex B). The check is marked for “Retainer” . The check was dated February 19, 2016. VN testified that at Tong’s request he delayed depositing the check. Presumably shortly after receiving the check Defendants were fired. VN attempted to deposit the check on or about March 2, 2016 but Tong had put in a stop payment on the check.”

BVT Failed to Establish a Prima Facie Case Against Defendants for Legal Malpractice

To establish a cause of action for legal malpractice, BVT must prove that Defendants were negligent, that such negligence was the proximate cause of actual damages sustained by BVT, and that but for Defendants’ negligence, BVT would have been successful in the underlying action (Cummings v Donovan 36 AD3d 648). Speculative damages or conclusory claims are not sufficient to meet this standard ( Pellegrino v File 291 AD2d 60).

A claim for legal malpractice should be supported by expert testimony at trial (Merlin Biomed Asset Mgmt., LLC v. Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243).

BVT’s evidence at trial fell far short of this standard.

Based on the foregoing, BVT’s action is dismissed.”

Lopez v Lozner & Mastropietro, P.C.  2018 NY Slip Op 08017 [166 AD3d 871] November 21, 2018 Appellate Division, Second Department  is an example of how some judges just get it wrong in legal malpractice settings, and dismiss where there is an actual cause of action stated.

“On November 4, 2011, the plaintiff, a pedestrian, allegedly was injured when he was struck by a motor vehicle. Thereafter, the plaintiff retained the defendant law firm, Lozner & Mastropietro, P.C. (hereinafter the law firm), to represent him in connection with the accident, and the law firm commenced an action on behalf of the plaintiff against the operator of the vehicle. In January 2017, the plaintiff commenced this action against the law firm and two of its principals, inter alia, to recover damages for legal malpractice. The plaintiff alleged that the driver of the offending vehicle was working for Domino’s Pizza, LLC (hereinafter Domino’s), making a pizza delivery at the time of the subject accident, and that the defendants were negligent in failing to timely commence an action against Dominos. The defendants moved pursuant to CPLR 3211 (a) to dismiss the complaint. In the order appealed from, the Supreme Court, inter alia, granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action to recover damages for legal malpractice.

“On a motion pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Shah v Exxis, Inc., 138 AD3d 970, 971 [2016]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). “Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists [*2]regarding the alleged fact, the complaint shall not be dismissed” (Bodden v Kean, 86 AD3d 524, 526 [2011]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]; see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; Tooma v Grossbarth, 121 AD3d 1093, 1095 [2014]).

“To state a cause of action to recover damages for legal malpractice, 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; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v Liotti, 86 AD3d 169, 176 [2011] [internal quotation marks omitted]; see Leder v Spiegel, 9 NY3d 836, 837 [2007]). Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the plaintiff stated a cause of action to recover damages for legal malpractice (see Tooma v Grossbarth, 121 AD3d at 1095-1096; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 589 [2014]; Reynolds v Picciano, 29 AD2d 1012, 1012 [1968]). The evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it (see Bodden v Kean, 86 AD3d at 526). Contrary to the defendants’ contention, the plaintiff was entitled to commence this legal malpractice action even though the underlying personal injury action was still pending, as the legal malpractice action accrued, at the latest, in November 2014 (see Johnston v Raskin, 193 AD2d 786, 787 [1993]).”

As is almost always true, plaintiffs are unsuccessful at a summary judgment motion in legal malpractice settings.  The Court can almost always find questions of fact which still remain in the “but for” area  even after a departure from good practice is poundingly demonstrated.

Eurotech Constr. Corp. v Fischetti & Pesce, LLP  2019 NY Slip Op 01366 [169 AD3d 597] February 26, 2019Appellate Division, First Department shows how the “but for” analysis goes.

“Plaintiff failed to establish that there are no issues of fact as to its legal malpractice claim. The claim is that defendant failed to timely communicate with plaintiff about information obtained from testimony or bills of particular in the underlying personal injury action, and that, as a result, plaintiff was unable to timely notify its excess insurance provider that its primary insurance coverage might be exhausted. Still unresolved are the type and timing of any communication required, which depends on the agreed-upon scope of defendant’s representation of plaintiff, and the point at which defendant, in the exercise of the requisite professional skill and knowledge, should have realized that plaintiff’s primary insurance coverage could be exhausted (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 41-42 [2d Dept 2006], cited in Eurotech Constr. Corp., 155 AD3d at 437). Expert testimony would have been helpful because the issues here involve professional standards beyond the ordinary experience of non-lawyers (see Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010], lv denied 15 NY3d 707 [2010]).”

We’ve not heard the phrase before, but are familiar with the situation.  Plaintiff gets into financial trouble and looks to fix a mortgage with a modification, a refinance, or some other method.  Things go bad from there.  Ramirez v Donado Law Firm, P.C.  2019 NY Slip Op 01244 [169 AD3d 940] February 20, 2019 Appellate Division, Second Department is an example.

“The plaintiffs allegedly were the victims of a foreclosure rescue scam perpetrated by the defendants Donado Law Firm, P.C. (hereinafter Donado Law), Valmiro Donado, and Roberto Pagan-Lopez (hereinafter collectively the defendants), among others. The plaintiffs commenced this action alleging, inter alia, violations of Real Property Law § 265-b and General Business Law § 349, as well as fraud, fraudulent inducement, fraudulent misrepresentation, breach of contract, and legal malpractice. The defendants moved pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar as asserted against them. The Supreme Court, inter alia, denied the motion, and the defendants appeal.”

“To recover damages for legal malpractice, a plaintiff must establish “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” (Dombrowski v Bulson, 19 NY3d 347, 350 [2012] [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Dempster v Liotti, 86 AD3d 169, 176 [2011]). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830 [2018]; Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d 683, 684 [2018]). Here, contrary to the defendants’ contention, the complaint sufficiently pleaded a cause of action to recover damages for legal malpractice (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d at 830; Hershco v Gordon & Gordon, 155 AD3d 1007, 1009 [2017]). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action sounding in legal malpractice insofar as asserted against them.”

Strujan v Kaufman & Kahn, LLP 2019 NY Slip Op 00630 [168 AD3d 1114] January 30, 2019 Appellate Division, Second Department is the end of the line for this case, and going forward Plaintiff must ask permission to file papers.

“Since the defendants represented the plaintiff’s adversaries in a prior action, the causes of action alleging legal malpractice and negligence are unsupported by any duty running from the defendants to the plaintiff (see Betz v Blatt, 160 AD3d 696, 698 [2018]; Betz v Blatt, 116 AD3d 813, 815 [2014]; Gorbatov v Tsirelman, 155 AD3d 836, 840 [2017]; DeMartino v Golden, 150 AD3d 1200, 1201 [2017]; Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]).

The plaintiff’s allegations of “intentional harm,” which the Supreme Court properly interpreted as stating a cause of action alleging prima facie tort, were unsupported by facts demonstrating that the defendants acted with “malicious intent or disinterested malevolence” in the prior action (Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 772 [2017]; see Dorce v Gluck, 140 AD3d 1111, 1112 [2016]; Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131 [2014]; Smallwood v Lupoli, 107 AD3d 782, 785 [2013]; Lisi v Kanca, 105 AD3d 714 [2013]; Shields v Carbone, 78 AD3d 1440, 1442-1443 [2010]). Likewise, the allegations of defamation failed to state a cause of action. The law provides absolute immunity from liability for defamation based on oral or written statements made by attorneys in connection with a proceeding before a court “ ’when such words and writings are material and pertinent to the questions involved’ ” (Front, Inc. v Khalil, 24 NY3d 713, 718 [2015], quoting Youmans v Smith, 153 NY 214, 219 [1897]; see Weinstock v Sanders, 144 AD3d 1019, 1020 [2016]; see also Stega v New York Downtown Hosp., 31 NY3d 661 [2018]).

The plaintiff’s remaining causes of action are not recognized in New York or are inadequately pleaded (see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016]; Scialdone v Stepping Stones Assoc., L.P., 148 AD3d 953, 954-955 [2017]; Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 711 [2012]; 42 USC § 1983; CPLR art 14-A).”