Scopia Windmill LP v Olshan Frome Wolosky LLP  2022 NY Slip Op 03996 Decided on June 21, 2022 Appellate Division, First Department succinctly describes how legal malpractice is a comparison of the actual outcome versus the hypothetical better outcome had mistakes not been made.

“Plaintiffs assert a legal malpractice claim alleging that defendant law firm was negligent in failing to perfect a security interest by timely filing a UCC-1 financing statement in connection with a loan they made. Contrary to defendant’s contention, the allegations underlying the claim are not “couched in terms of gross speculations on future events” (see Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208 [1st Dept 1999], lv denied 94 NY2d 759 [2000]). To the contrary, supported by plausible expert opinion, they depict a hypothetical course of events flowing from the failure to file that caused plaintiffs ascertainable damage that would not have occurred had the lien been timely filed, thereby raising an issue of fact sufficient to defeat summary dismissal of the claim (see e.g. A&L Vil. Mkt., Inc. v 344 Vil., Inc., 170 AD3d 1095 [2d Dept 2019]).”

Lee Anav Chung White Kim Ruger & Richter LLP v Capone  2022 NY Slip Op 31731(U) May 25, 2022 Supreme Court, New York County Docket Number: Index No. 657197/2020 Judge: Arlene Bluth stands for the proposition that an account stated is stronger than almost any defense.  Failure to object to an attorney’s bills basically precludes any arguments made later that the bill is duplicitive or excessive.

“In this action to recover legal fees, plaintiff moves for summary judgment on its causes of action for breach of the retainer agreement and account stated. It claims it represented defendant in connection with three family court proceedings in Kings County and that defendant refused to pay her outstanding bills. Plaintiff contends that defendant received regular invoices from April 3, 2019 to November 10, 2020 and did not object to any of the invoices during the representation. It points out that defendant made some partial payments after receiving these invoices.

With respect to the counterclaim, which plaintiff contends is one for legal malpractice, plaintiff argues that defendant’s allegations relate to excessive billing and not a legal malpractice claim. Plaintiff observes that in January 2020, defendant affirmed her intention to pay her  outstanding balance but then did not make the payment. It explains that as a small firm, it could not afford to keep such a large balance and so it eventually moved to be relieved as defendant’s counsel.

In opposition, defendant explains that she has not had the opportunity to present her evidence and counterclaims to the Court and complains that all the conferences were adjourned
by stipulation. She insists that the work done by plaintiff was “extremely sloppy” and the bills were unreasonably inflated. Defendant maintains that there were many duplicative requests and that she was double and triple charged.

She recounts an incident in which the attorney for her child (in the custody dispute) was allegedly not licensed to practice and that plaintiff was slow to address the problem. Defendant complains about her child’s attorney and insists this attorney (who apparently worked for nonparty the Children’s Law Center) did significant damage to defendant’s case. She also takes issue with the fact that plaintiff left the representation “mid-trial” although she admits that the case eventually settled.

In reply, plaintiff argues that defendant did not object to any of the factual assertions made by plaintiff and instead focuses on irrelevant topics. It insists that defendant’s counterclaim
is baseless and should be dismissed.”

“Here, plaintiff met its prima facie burden for summary judgment on the account stated cause of action by submitting the retainer agreement (exh 1 to the complaint) and the invoices
(exh 2 to the complaint). Defendant did not deny receiving these invoices nor did she point to objections she raised within a reasonable time of receiving these invoices. In fact, defendant admitted in an email to plaintiff from January 2020 that “Yes, I am aware of the outstanding balance. I can not pay $88,764.73 all at once, as I mentioned to Young on the phone. I can send $10,000 now, and get on a payment plan with the firm for the rest of the money” (NYSCEF Doc. No. 44).

“Specifically, defendants’ receipt and retention of plaintiff’s accounts, without objection within a reasonable time, and agreement to pay a portion of the indebtedness, gave rise to an
actionable account stated, thereby entitling plaintiff to summary judgment in its favor” (Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626, 626, 559 NYS2d 249 [1st
Dept 1990]). That is exactly what happened here: defendant admitted she owed plaintiff and expressed her intention to pay the outstanding amount. Defendant cannot object to the invoices only after plaintiff brought this case. ”

 

National Air Cargo, Inc. v Jenner & Block, LLP  2022 NY Slip Op 01900 [203 AD3d 1655] March 18, 2022 Appellate Division, Fourth Department discusses two important issues:  scope of retainers and the effects of a bankruptcy filing.

“Memorandum: Plaintiff National Air Cargo, Inc. (NAC) is a freight forwarding company, and plaintiff National Air Cargo Holdings (NACH) owns NAC. Plaintiff Chris Alf is the principal shareholder of NAC and NACH and, at all relevant times, was the chair, chief executive officer, and president of NAC. NAC was found liable on a breach of contract claim in an underlying action against it in the United States District Court for the Central District of California. Plaintiffs commenced this action alleging, inter alia, professional negligence/legal malpractice and seeking damages purportedly arising from the representation of NAC by defendant Jenner & Block, LLP (JB) in the underlying action and the representation of NAC by defendant Harter, Secrest & Emery, LLP (HSE) in NAC’s subsequent bankruptcy proceeding. Plaintiffs alleged that JB and HSE negligently failed to review whether the judgment rendered against NAC in the underlying action was covered by the directors’ and officers’ liability insurance policies issued to NAC and to advise NAC accordingly. JB and HSE thereafter each moved pursuant to CPLR 3211 to dismiss plaintiffs’ complaint against them. In appeal No. 1, plaintiffs appeal from an order of Supreme Court that granted both motions. In appeal No. 2, plaintiffs appeal from a subsequent order of the same court that granted HSE’s motion. In appeal No. 3, plaintiffs appeal from an order and judgment of the same court that granted JB’s motion.”

“n appeal No. 2, we conclude that the court properly dismissed on the ground of documentary evidence the professional negligence/legal malpractice cause of action against HSE insofar as asserted by NAC (see CPLR 3211 [a] [1]). A motion to dismiss a complaint based on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). In support of its motion, HSE submitted the engagement letter between HSE and NAC. “An attorney may not be held liable for failing to act outside the scope of a retainer” (Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 168 AD3d 1026, 1028 [2d Dept 2019]; see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 [2007]). Here, HSE met its burden of establishing by documentary evidence that the scope of its legal representation did not include a review of the insurance policies for possible coverage of the judgment in the underlying action. The engagement letter stated that HSE’s engagement did “not include responsibility either for review of [NAC’s] insurance policies to determine the possibility of coverage for any . . . claims that have [been] or may be asserted against [NAC] or for notification of [NAC’s] insurance carriers concerning the matter.” Because review of NAC’s liability insurance policies to determine their potential applicability to the judgment in the underlying action fell outside the scope of HSE’s engagement, the court properly granted HSE’s motion with respect to the professional negligence/legal malpractice cause of action against HSE insofar as asserted by NAC (see Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850 [2d Dept 2009]).

In appeal No. 3, we conclude that the court properly dismissed the professional negligence/legal malpractice cause of action against JB, insofar as asserted by NAC, on the ground of judicial estoppel. The “doctrine of judicial estoppel may bar a party from pursuing claims which were not listed in a previous bankruptcy proceeding” (Moran Enters., Inc. v Hurst, 160 AD3d 638, 640 [2d Dept 2018], lv denied 32 NY3d 908 [2018], rearg denied 32 NY3d 1195 [2019]; see Popadyn v Clark Constr. & Prop. Maintenance Servs., Inc., 49 AD3d 1335, 1336 [4th Dept 2008]). Here, at the time NAC filed for bankruptcy, it failed to list a potential legal malpractice claim against JB as an asset and obtained a bankruptcy discharge. We conclude that “[t]he failure of . . . [NAC] to disclose a cause of action as an asset in a prior bankruptcy proceeding, the existence of which [NAC] knew or should have known existed at the time, deprive[s] [NAC] of the legal capacity to sue subsequently on that cause of action” (Green v Associated Med. Professionals of NY, PLLC, 111 AD3d 1430, 1432 [4th Dept 2013] [internal quotation marks omitted]). Contrary to the court’s determination, however, JB failed to establish that the doctrine of judicial estoppel applies with respect to NACH or Alf, because JB failed to establish as a matter of law that NACH or Alf, as non-debtors, were in privity with NAC (see In re Avaya Inc., 573 BR 93, 103-104 [SD NY 2017]).”

Ressler v Farrell Fritz, P.C.  2022 NY Slip Op 31706(U) May 25, 2022 Supreme Court, New York County Docket Number: Index No. 156946/2020 Judge: David B. Cohen is a case about representing clients who object to neighbors’ building plans in a wetlands setting, where the neighbors are asking the municipality to allow for big changes.  Clients hire a law firm to stop the development.  Law firm files some papers, but either misses or did not monitor certain public notifications.  Was it law firm’s responsibility to monitor the public notifications?

“On September 19, 2018, plaintiffs executed an engagement letter (the Engagement Letter) retaining Farrell Fritz to represent them “in connection with the commencement of an
action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk” (NYSCEF Doc No. 39, Ressler aff, Ex 3 at 1; NYSCEF Doc No. 71, defendants’ counterstatement of material facts, ,i,i 6-7). Guardino is a partner and Butler is an attorney at Farrell Fritz (NYSCEF Doc No. 71, ,3-4).

On September 25, 2018, Farrell Fritz, on behalf of plaintiffs, filed a summons with notice in an action captioned Ressler v Village People, LLC, Supreme Court, Suffolk County, Index No.
618618/2018 (the VP Action) (id., i19). That fall, defendants wrote four letters to DEC regarding tidal wetlands permit nos. 1- 4 728-03511, 1-4 728-05497, 1-4 728-05498 and 1-4 728-05499, which allowed Village People to construct four single-family residences on its properties (id., ,i 10; NYSCEF Doc No. 40 at 103, 107, 112 and 135). In the letter dated October 1, 2018, Guardino expressed plaintiffs’ objection to the permits and asked DEC to suspend the permits and related activities until a further review could be made (NYSCEF Doc No. 40 at 103 and 105).

In January 2019, defendants learned that Village People had applied to DEC to modify the permits issued for the tidal wetlands immediately to the west of the Property (NYSCEF Doc
No. 71, ,i 13). On May 3, 2019, DEC issued a permit modification (the 2019 Modification) for permit no. 1-4 728-05497/00001 to allow Village People to combine two lots into a single lot for the construction of one single-family dwelling and discontinued permit no. 1-4728-05498/00001 (NYSCEF Doc No. 81, Ressler aff, Ex 5).

On July 12, 2019, defendants, on behalf of plaintiffs, commenced a hybrid Article 78  proceeding captioned Ressler v New York State Dept. of Envtl. Conservation, et al., Supreme
Court, Suffolk County, Index No. 3668/2019 (the DEC Action) (together with the VP Action, the Actions) related to the 2019 Modification (NYSCEF Doc No. 71, ,i 17). The petition sought to: (1) vacate, annul and reverse a permit modification dated May 3, 2019; (2) declare the permit modification null and void; and (3) enjoin the Village of Saltaire from processing, hearing or deciding any pending or future application seeking to develop the properties that were the subject of the proceeding (NYSCEF Doc No. 40 at 4-5 and 9).
DEC moved to dismiss the petition as untimely under Environmental Conservation Law (ECL) § 25-0404, which provides that a person aggrieved by DEC’s issuance, denial, suspension
or revocation of a tidal wetlands permit may seek judicial review within 30 days of the decision. DEC argued that it had made information pertaining to the 2019 Modification available on the DEC Permit Applications (DART) Search portal, where it publicly posts detailed information on applications for tidal wetlands permits (NYSCEF Doc No. 46, Ressler aff, Ex 10 at 3). DEC posted notice that the 2019 Modification had been granted on the DART system on May 9, 2019 (id. at 4). DEC also argued that it required permit applicants to conspicuously post a permit sign at the site (id.). Village People, which had also moved for dismissal, claimed it had posted copies of the original permit and the 2019 Modification on the front gate and a tree in the walkway at its property (NYSCEF Doc No. 57, Ressler aff, Ex 21 at 4). In a decision and order dated January 29, 2020, the Supreme Court, Suffolk County (Santorelli, J.) granted the motions to dismiss (id. at 5). A motion for leave to reargue was denied on August 25, 2020 (NYSCEF Doc No. 23, ,i 21). ”

“Plaintiffs also move for partial summary judgment on the issue of defendants’ negligence in failing to timely file Article 78 proceedings challenging the 2019 and 2020 Modifications.
Plaintiffs argue that defendants should have known about DART since they had held themselves out as experts in matters involving the DEC. Plaintiffs allege that defendants failed to consult and monitor DART for information about Village People’s permit modification applications and that, had they done so, defendants would have learned when the DEC granted the modifications and could have moved for judicial review within the 30-day period fixed in ECL § 25-0404.

CPLR 3212 (e) provides that “summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on
such terms as may be just.” A party moving for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The “facts must be viewed in the light most favorable to the non-moving party” (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted]). Once the moving party has met this prima facie burden, the burden shifts to the nonmoving party to furnish evidence in admissible form sufficient to raise a material issue of fact (Alvarez, 68 NY2d at 324). The moving party’s “[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id.). ”

“It is well settled that “[a]n attorney may not be held liable for failing to act outside the scope of the retainer” (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC,
157 AD3d 479,482 [1st Dept 2018], citingAmbase Corp. v Davis Polk & Wardell, 8 NY3d 428 [2007]). Here, plaintiffs have not dispelled all questions of material fact as to whether they had engaged defendants to monitor DART for changes to the four tidal wetlands permits issued to Village People and to commence Article 78 proceedings challenging potential modifications to those permits. In defining the scope of defendants’ representation, the Engagement Letter states that “[Farrell Fritz] will represent you in connection with the commencement of an action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk” (NYSCEF Doc No. 39 at 1). The letter further states that defendants shall provide legal services “in connection with potential litigation involving title to real property located in Saltaire” (id.). While the phrase “and other claims” is ambiguous, the Engagement Letter does not mention the DEC, the permits issued to Village People or the commencement of any proceeding to challenge future modifications or amendments to those permits. Further, the DEC issued the permits to Village People in 2017,
and the time within which to challenge that determination expired long before plaintiffs executed the Engagement Letter. Plaintiffs have not shown whether the Engagement Letter was ever modified to expand the scope of defendants’ obligations to include continually monitoring the four permits issued to Village People and authorizing defendants to commence legal proceedings if DEC were to modify those permits. Given plaintiffs’ failure to meet their prima facie burden, the branch of the motion seeking partial summary judgment on the issue of defendants’ negligence is denied without regard to the sufficiency of defendants’ opposition. “

When a person is injured and successfully asserts a WC claim, a later action for damages against a third-party might be subject to a WC lien.  Here, in Continental Indem. Co. v Redzematovic  2022 NY Slip Op 03866 Decided on June 14, 2022  the Appellate Division, First Department determined that the WC carrier could assert a lien against the legal malpractice recovery.

“Plaintiffs seek to assert the lien provided by Workers’ Compensation Law § 29(1) against the monies received by defendant in settlement of her legal malpractice action against her prior attorneys who failed to timely commence an action against the tortfeasors responsible for her workplace accident. Workers’ Compensation Law § 29(1) provides that, if an employee who is eligible for workers’ compensation benefits is injured “by the negligence or wrong of another not in the same employ, such injured employee . . . [may] pursue his remedy against such other,” and, if the injured employee has received workers’ compensation benefits, the workers’ compensation carrier “shall have a lien on the proceeds of any recovery from such other, whether by judgment, settlement or otherwise,” to the extent of the compensation provided (Matter of Shutter v Phillips Display Components Co. , 90 NY2d 703, 707 [1997]). Under the statutory language, the lien does not apply against any recovery obtained by the injured employee from any source, such as from her own uninsured motorist insurance coverage, but “only against recoveries from the third-party tortfeasors who are responsible for the claimant’s injuries” (id. at 708). Although defendant did not recover directly from the tortfeasors, the legal malpractice settlement “obtained as a result of the first attorney’s failure to timely commence [an action] constitutes a third-party recovery within the meaning of Workers’ Compensation Law § 29” (Matter of Theresa M.C. v Utilities Mut. Ins. Co. , 207 AD2d 481, 482 [2d Dept 1994]) because the recovery from the legal malpractice “settlement was a substitute for the usual third-party recovery against a negligent tort-feasor or wrongdoer” (Matter of McDowell v La Voy , 63 AD2d 358 [3d Dept 1978], affd 47 NY2d 747 [1979]). Accordingly, the settlement proceeds are subject to the Workers’ Compensation lien which attaches to the recovery.”

There have been very few dismissals of legal malpractice cases following the Grace v. Law decision.  Rabasco v Buckheit & Whelan, P.C. 2022 NY Slip Op 03754 Decided on June 8, 2022
Appellate Division, Second Department is one of those few.

“The plaintiff retained the defendants to commence a medical malpractice action against the plaintiff’s medical providers who performed a surgery in December 2011 to repair the plaintiff’s fractured jaw (hereinafter the underlying action). The defendants retained the services of two experts and served expert disclosures on the medical providers pursuant to CPLR 3101(d). On the day the trial was scheduled to begin, the Supreme Court granted the medical providers’ motion in limine to preclude all testimony from the plaintiff’s experts on the ground that the medical providers had not been served with a report of the experts’ physical examination of the plaintiff pursuant to 22 NYCRR 202.17 and directed dismissal of the complaint in the underlying action.

Thereafter, the plaintiff commenced this action against the defendants to recover damages for legal malpractice. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the amended complaint. The Supreme Court granted the defendants’ motion, determining that they were entitled to dismissal of the amended complaint pursuant to CPLR 3211(a)(7). The plaintiff appeals.

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 the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Parklex Assoc. v Flemming Zulack Williamson Zauderer, LLP, 118 AD3d 968, 970). “To establish causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney’s negligence” (Parklex Assoc. v Flemming Zulack Williamson Zauderer, LLP, 118 AD3d at 970). A [*2]party who is “likely to succeed” on an appeal in the underlying action is required to pursue an appeal before proceeding with a legal malpractice cause of action (Grace v Law, 24 NY3d 203, 210; see Buczek v Dell & Little, LLP, 127 AD3d 1121, 1123). By establishing that the client failed to pursue an appeal in the underlying action and that “an appeal would likely have been successful, a defendant in a legal malpractice action can establish that the alleged negligence did not proximately cause the plaintiff’s damages” (Buczek v Dell & Little, LLP, 127 AD3d at 1124).

Here, as the Supreme Court properly determined, an appeal from the order, inter alia, directing dismissal of the complaint in the underlying action was likely to succeed on the ground that the court in the underlying action improvidently exercised its discretion when it precluded the plaintiff’s experts from testifying entirely and directed dismissal of the complaint, rather than permitting the plaintiff’s experts to offer limited testimony based upon their review of other evidence in the action independent from their physical examination of the plaintiff (see Shichman v Yasmer, 74 AD3d 1316, 1318; Hughes v Webb, 40 AD3d 1035, 1037; Neils v Darmochwal, 6 AD3d 589, 590). Moreover, the plaintiff had sufficient time to perfect the appeal in the underlying action after terminating the defendants’ representation and failed to do so. Accordingly, the court properly granted the defendants’ motion to dismiss the amended complaint pursuant to CPLR 3211(a)(7), as the defendants were not the proximate cause of the plaintiff’s alleged damages (see Grace v Law, 24 NY3d at 210; Perks v Lauto & Garabedian, 306 AD2d 261, 262).”

Vioni v Carey & Assoc. LLC  2022 NY Slip Op 03805 Decided on June 09, 2022 Appellate Division, First Department is a short odd decision.  Previously, the attorney’s counterclaim was dismissed with a finding that they were terminated for cause.  The cause seems to be failures in expert discovery.  Now, summary judgment is denied to the attorneys.

“Defendants, admittedly discharged for cause (see Vioni v Carey & Assoc., LLC, 192 AD3d 617 [1st Dept 2021]), failed to proffer any evidence that subsequent counsel did not adequately prepare plaintiff’s rebuttal expert witness for his deposition during the underlying federal litigation. Accordingly, they did not establish prima facie that, but for the intervening and superseding failures of plaintiff’s successor counsel, plaintiff would not have lost at trial (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Pyne v Block & Assoc., 305 AD2d 213, 213 [1st Dept 2003]), Indeed, defendants have not shown on this record that it was not their own alleged acts of malpractice that prevented plaintiff from prevailing in her federal lawsuit, including, inter alia, their failure to timely serve expert reportsobtain a discovery stayand be truthful when they otherwise advised plaintiff and the court that the missed expert witness deadline was a deliberate, strategic decision.”

Allen v Thompson  2022 NY Slip Op 31571(U) May 11, 2022 Supreme Court, New York County Docket Number: Index No. 160342/2020   Judge: Sabrina Kraus.  This legal malpractice case is based upon the allegation that Defendant Attorney “unilaterally and without Plaintiff’s consent, changed one word to the Agreement.”

“Plaintiff alleges the following facts in her complaint. On or about February 28, 2012, Plaintiff was terminated from Chanel, Inc. after nineteen (19) years of employment. Plaintiff
was offered a severance package of $21,789.20 and five ( 5) months of paid COBRA. Plaintiff was not satisfied with this arrangement and believed that her employment was terminated on the basis of discrimination. Plaintiff consulted with Defendant for guidance with regard to accepting the severance package, but still retained her legal right to file a discrimination lawsuit against Chanel, Inc. Defendant, as an attorney, agreed to represent Plaintiff, to negotiate a separation and release agreement (the “Agreement”) from Chanel, Inc., that would permit Plaintiff to retain her legal right to move forward on her discrimination claim and represent her with respect to that claim as well.

After a few weeks of negotiation, Defendant received the final draft of the Agreement from Chanel, Inc. The Agreement that Defendant received contained language that excluded
from the release any discrimination claims. Unbeknownst to Plaintiff at the time, Defendant unilaterally and without Plaintiffs consent, changed one word to the Agreement, changing the word “including” to “excluding” in reference to Plaintiff waiving any rights to sue for discrimination.

This one change to the Agreement made by Defendant, now made the Agreement read that Plaintiff released all of her rights as part of the settlement, except for any right arising under Title VII, the New York State Human Rights Law and the New York City Human Rights Law, thereby allowing Plaintiff to still file a lawsuit under these statutes. Plaintiff was sent this new document by overnight mail and was instructed by Defendant to initial each page and sign it. Defendant then directed Plaintiff to send the altered document back to Chanel, Inc.”

“Plaintiffs specific factual allegations of negligence, causation, and damages are sufficient to state a cause of action for legal malpractice. Pyne v. Block & Assoc, 305 A.D .2d 213 ( I st
Dep’t 2003). See Between The Bread Realty Corp. v. Salans Hertzfeld Heilbronn Christy & Viener, 290 A.D.2d at 381; DweckLaw Firm v. Mann, 283 A.D . .2d at 293;Greenwich v
Markhoff, 234 A.D.2d 112, 114 (1st Dep’t 1996); Gotay v. Breitbart, 14 A.D.3d 452,454 (1st Dep’t 2005). ”

“Based on the foregoing, Defendant’s motion for dismissal pursuant to CPLR §321 l(a)(7) is granted only as to the cause of action or breach of fiduciary duty. ”

 

Not for the first time, courts hold that suing an attorney appointed by the court is impermissible.  In J.D. v Galchus  2022 NY Slip Op 22139 Decided on March 31, 2022 Supreme Court, Queens County Velasquez, J. held just that.

“This is a legal malpractice action against the defendant, the court appointed attorney for the minor child in a custody proceeding. On April 25, 2018, the plaintiff commenced a proceeding in Family Court, Queens County, to modify a custody agreement she had with her ex-husband, P. L., regarding their minor child, Anonymous. Plaintiff sought to relocate with the child to New Orleans. P. L. opposed the Family Court petition and also executed his own petition in which he sought to be awarded primary residential/physical custody of Anonymous. In May 2018, defendant was assigned by the Family Court as the Attorney for the child, Anonymous. At the Family Court hearing, defendant stated that it was the child’s preference to relocate with the plaintiff to New Orleans.”

“The plaintiff herein lacks standing to bring this action against the defendant, the Law Guardian. There is no privity between the plaintiff and the defendant. (see Bluntt v O’Connor, 291 AD2d 106, 114 [4th Dept 2002].) Indeed, the defendant was appointed to assist the child in presenting her views and her wishes. He was not representing the plaintiff in any capacity, and no attorney-client relationship existed between them. As such, the defendant is entitled to quasi-judicial immunity.

Although the court is aware of the October 2, 2019 Appellate Division decision stating that the defendant did not advocate for the position of the child herein, the court cannot use this as a basis to allow the plaintiff to maintain a malpractice action against the defendant. To allow a malpractice lawsuit against the defendant in these types of circumstances would discourage attorneys from serving as court appointed counsel. (see Bluntt v O’Connor, 291 AD2d at 118-119.) As noted by the Supreme Court of Wisconsin, without the assistance and impartial judgment of a guardian ad item, the “court would have no practical or effective means to assure itself that all of the essential facts have been presented untainted by the self-interest of the parents and children.” (Paige K.B. v Molepske, 219 Wis 2d 418, 434, 580 NW2d 289 [Sup Ct, Wisconsin 1998].) Moreover, the court wisely noted that immunity in these situations is necessary “to avoid the harassment and intimidation that could be brought to bear on GALs by those parents and children who may take issue with any or all of the GAL’s actions or recommendations.” (Paige K.B. v Molepske, 219 Wis 2d at 434.)

Other courts have taken similar positions. One court has stated that “[f]ear of liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best for the child; the guardian’s focus must not be diverted to appeasement of antagonistic parents.” (Ward v San Diego County Dept. of Social Servs., 691 F Supp 238, 240 [SD Ca 1988].) Further, court-appointed experts, “faced with the threat of personal liability, will be less likely to offer the disinterested objective opinion that the court seeks.” (Winchester v Little, 996 SW2d 818, 827 [Sup Ct, Tenn 1999].) Moreover, “[a] failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in [*3]judicial proceedings.” (Kurzawa v Mueller, 732 F2d 1456, 1458 [6th Cir 1984].) Many of these cases are based on the holding of the Supreme Court that “the common law provided absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who were integral parts of the judicial process.” (Briscoe v LaHue, 460 US 325, 335 [1983].)

This court agrees with these opinions and finds that permitting a malpractice case to proceed against the defendant herein would go against public policy. It would subject these attorneys to possible unnecessary litigation for performing an extremely important function for the court.

Accordingly, this motion by defendant to dismiss the complaint is granted, and the action is dismissed.”

Cutie Pie Baby Inc. v Sasson Law PLLC  2022 NY Slip Op 31450(U)  May 2, 2022 Supreme Court, New York County Docket Number: Index No. 655055/2021 Judge: Margaret Chan is an interesting, and relatively rare application of Grace v. Law,  24 NY3d 203 (2014).  In a family setting, two of the family seek to remove the third member.  They did so in a manner which was found to be incorrect, and led to an arbitration.

“On August 19, 2021, plaintiffs filed this action asserting two legal  malpractice claims~ne against Sasson and the second against Akin Gump (NYSCEF # 1,  49-57; 58·67). The complaint alleges that defendants committed legal malpractice by failing to advise plaintiffs to send notice of the Special Meeting to JY which caused damages to plaintiffs (id., , 55, 67). Specifically, the complaint seeks to recover $4,844,451 consisting of (1) $2,186,932 for JY’s legal fees incurred in the arbitration, which CPI was required to pay as part of the arbitration panel’s Final Award, (2) $1,064,992 in legal fees that plaintiffs paid its counsel in connection with the arbitration proceeding, (3) $731,000 in costs and expenses
arising out of the arbitration, (4) $397,343.59 in legal fees paid by plaintiffs to Akin Gump, and (5) $464,513.56 in legal fees to Sasson (id. , 44·48) ”

“To satisfy the pleading requirement for causation, it must be alleged that ‘”but for’ the attorney’s conduct [or nonfeasance], the client would have prevailed in the underlying action or would not have sustained any ascertainable damages” ( Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]; Cosmetics Plus Group, Ltd. v Traub, 105 AD3d at 140). Regarding damages, “to survive a … pre-answer dismissal motion, a pleading need only state allegations from which damages attributable to the defendant’s conduct [or nonfeasance] may be reasonably inferred” (Lappin v Greenberg, 34 AD3d 277, 279 [1st Dept 2006] [internal citations omitted]).

Under these standards, the court finds that the complaint adequately pleads professional negligence based on allegations that Sasson failed to use “the level of skill and knowledge possessed common to my members of the legal profession” by incorrectly advising plaintiffs that JY could be removed at a special meeting and that they were not obligated to provide JY notice of the meeting (NYSCEF # 1,  50, 56). And contrary to Sasson’s position, dismissal is not warranted on the ground that the alleged failure to properly advise plaintiffs was a matter of professional judgment.

Regarding causation, the complaint alleges that because Sasson gave the wrong advice to plaintiffs·· that notice of the Special Meeting to JY was not necessary — CPB was forced into arbitration with JY, and it was Sasson’s improper legal advice on notice that caused the arbitrators ruled in JY’s favor id., ~,52-54). The complaint also alleges that “[a]s a result of [Sasson’s] improper legal advice, Plaintiffs have been damaged in the amount of $4,844,451.00” (id, , 55).

These allegations are sufficient to plead that “but for” the alleged malpractice, plaintiffs would not have been required to incur the legal fees, costs, and expenses associated with the arbitration proceeding. And while JY would have been entitled to payment for the value of his shares even if he were provided with notice, plaintiffs are not seeking to recover the $7,972,511 that the Award required them to pay for JY’s shares. Instead, plaintiffs seek legal fees, costs, and expenses resulting from the allegedly unnecessary arbitration (Rudolph v Shayne, Dachs, Stanisc1: Corker & Sauer, 8 NY3d 438, 443 [2007] [damages in a legal malpractice action may include “litigation expenses incurred in an attempt to avoid, minimize or
reduce the damage caused by the attorney’s wrongful conduct”). ”

“Next, Sasson’s argument that plaintiffs were required to exhaust appellate review in order to bring this action is unavailing, since Sasson has not shown that plaintiffs would have been likely to succeed on the appeal ( Grace v Law,· 24 NY3d 203, 211-212 [2014]; see also Florists’ Mut. Ins. Co., Inc. v Behman Hambelton, LLP, 160 AD3d 502, 502 [1st Dept 2018] [affirming trial court’s finding that an appeal to Workers’ Compensation Board was not required prior to filing a malpractice claim where such appeal was unlikely to succeed]). “