Excessive Claims Weeded Out for Plaintiff

By Andrew Lavoott Bluestone on April 19, 2019 Posted in Legal Malpractice Cases

Cascardo v Dratel 2019 NY Slip Op 02957 Decided on April 18, 2019 Appellate Division, First Department is a combination legal malpractice, excessive billing, fraud breach of fiduciary duty case which had several claims weeded out for this plaintiff.

“Plaintiff’s fraud claim should have been dismissed because the complaint did not sufficiently plead justifiable reliance upon defendant’s claim that it needed an additional $10,000 to continue its work on her lawsuit. In fact, the complaint specifically asserts that plaintiff knew the additional $10,000 legal fee demanded by defendant would not be used for her benefit, but he required it because other clients had not paid him. This admission negates an element of the fraud claim, that plaintiff justifiably relied on the defendant’s alleged misrepresentation that “[defendants] needed $10,000 to continue their work [on her case]” (see Shalam v KPMG LLP, 89 AD3d 155, 157-158 [1st Dept 2011]; Havell Capital Enhanced Mun. Income Fund, L.P. v Citibank, N.A., 84 AD3d 588, 589 [1st Dept 2011]).

The claim for excessive legal fees (and the related discussion in the complaint of defendants’ alleged breach of fiduciary duty based on the alleged overcharges) was correctly sustained. Plaintiff alleged that “[her] fee bore no rational relationship to the product delivered,” and detailed that, in exchange for the $25,000 fee, defendants produced only a draft complaint that was essentially identical to the one that she had presented to them (see Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015]). This claim is not duplicative of the legal malpractice claim, as plaintiff’s complaints regarding the over billing were not a direct challenge to the quality of the work but instead a claim that the fee paid bore no rational relationship to the work performed (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]; Johnson, 129 AD3d at 70). To the extent that the motion court read the pro se [*2]complaint as alleging a separate cause of action for breach of fiduciary duty, these allegations are subsumed in the cause of action for excessive attorney fees.”

Multitudo Imperitorum Perdit Curiam

By Andrew Lavoott Bluestone on April 18, 2019 Posted in Legal Malpractice Cases

This lovely 1500 year old phrase starts the case of Long Island Real Props., Ltd. v US Bank N.A. 2019 NY Slip Op 30954(U) April 2, 2019 Supreme Court, Suffolk County Docket Number: 621122/2017. Judge James Hudson quotes the medieval writer Tribonian to the effect that “A great number of unskilled practitioners ruins a Court. (2 Inst. 219) He then goes on to catalog the errors in a Long Island real estate law suit, weaving in a discussion of Judiciary Law§ 487, itself a 750 year old part of the common law.

“If it is shown that the frivolous behavior misled the Court and was offered for the
purpose of deceiving same, the law provides a stem response. Judiciary Law §487 states in
salient part that ” … An attorney or Counselor who … [i]s guilty of any deceit or collusion, or
consents to any deceit or collusion, with intent to deceive the court or any party .. .is guilty of
a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he
forfeits to the party injured treble damages, to be recovered in a civil action.”
Liability for attorney deceit existed at New York common law before the first New
York statute governing such behavior was enacted, and thus, is subject to the six year statute
of limitation’s for actions for which no limitation is specifically provided by law (Melcher
v. Greenberg Traurig,LLP, 23NY3d19, 988NYS2d101, 11NE3d174,reargumentdenied
23 NY3d 998, 992 NYS2d 763, 16 NE3d 1241 [2014]). Applicable case law interpreting
Judiciary Law §487 demonstrates that the additional element “intent to deceive” is the factor levating it in opprobrium as compared with 22 NYCRR 130-1.1. (Tenore v. Kantrowitz,
Go/dliamer & Graifman, P.C., 121 A.D.3d 775, 776, 994 N.Y.S.2d 171 (2″d Dept. 2014);
see Lawrence Ripak Co., Inc. v. Gdanski, 143 AD3d 862, 39 NYS3d 223 [2d Dept 2016)). ”

Read the entire decision for Judge Hudson’s description of what he considers to be frivolous litigation.

A Strong Public Policy

By Andrew Lavoott Bluestone on April 17, 2019 Posted in Uncategorized

Citing a “strong public policy to dispose of cases on their merits” the Appellate Division First Department reversed in Cornwall Warehousing, Inc. v Lerner 2019 NY Slip Op 02825
Decided on April 16, 2019.

“Plaintiffs demonstrated a reasonable excuse for their default (CPLR 5015[a][1]), based on law office failure, as detailed in the affirmation of their former counsel who miscalendared the motion (CPLR 2005; People’s United Bank v Latini Tuxedo Mgt., LLC, 95 AD3d 1285, 1286 [2d Dept 2012]). Plaintiffs then moved to vacate the order entered on their default, showing that they had a meritorious defense to the underlying motion to strike their complaint pursuant to CPLR 3126 (c), since they were not in default of any disclosure order (see John Quealy Irrevocable Life Ins. Trust v AXA Equit. Life Ins. Co., 151 AD3d 592, 593 [1st Dept 2017], lv dismissed 30 NY3d 1091 [2018]; DaimlerChrysler Ins. Co. v Seck, 82 AD3d 581, 582 [1st Dept 2011]). Plaintiffs also demonstrated a potentially meritorious cause of action by providing the affidavit of their president setting forth the basis of their legal malpractice claim (see Cheri Rest., Inc. v Eoche, 144 AD3d 578, 579-580 [1st Dept 2016]).

In light of the strong public policy of this State to dispose of cases on their merits, the court improvidently exercised its discretion in denying plaintiffs’ motion to vacate the order entered on default (DaimlerChrysler Ins. Co. v Seck, 82 AD3d at 582; see Chelli v Kelly Group, P.C., 63 AD3d 632 [1st Dept 2009]).”

A Limited Retainer That Worked

By Andrew Lavoott Bluestone on April 15, 2019 Posted in Legal Malpractice Cases

Professionals take on work, and more specifically responsibilities. Some come from the general tort requirement to act reasonably towards the public, some arise from contract. Lam v 933 60th St. Realty Inc.
2019 NY Slip Op 30707(U) March 20, 2019 Supreme Court, Kings County Docket Number: 514453/2018 Judge: Debra Silber is an example of how a carefully drafted retainer agreement/contract can limit potential liability.

“This is an action for property damage allegedly caused to plaintiffs’ properties as a result of excavation work at 1759 Bay Ridge Parkway, which is adjacent to the plaintiffs’ properties. The complaint includes claims against all defendants sounding in negligence, private nuisance, trespass, negligent hiring, negligent supervision, negligent design, encroachment, declaratory judgment, injunctive relief against excavation and construction, injunctive relief seeking removal of trespassing and encroaching structures, and ten causes of action under various sections of article 28 of the Building Code, as well as a professional malpractice claim against the defendant architect, S M Tam Architect PLLC. Plaintiffs initially brought an order to show cause seeking a preliminary injunction, which included a temporary restraining order stopping all work at the site. On the initial return date, the order to show cause was adjourned for plaintiffs to provide an affidavit from an architect or engineer to substantiate the plaintiffs’ allegations of property damage and trespass. The
temporary restraining order was modified to limit its scope to the back half of the construction site, which is closest to the plaintiffs’ properties, which are located on the other side of the block, that is, Block 6215. The request for a preliminary injunction was ultimately denied by the court, based upon plaintiffs’ failure to substantiate their claims of property damage and trespass. It should be noted that while one attorney brought this action and the order to show cause on behalf of all five plaintiffs, by the end of 2018, he only represented plaintiffs Lin and Chee and not the other three plaintiffs, who are now prose. ”

“Here, S M Tam Architect has come forward with documentary evidence that conclusively establishes a defense as a matter of law, under CPLR § 3211(a)(1), and has shown that the complaint fails to state a cause of action against it, under CPLR § Here, S M Tam Architect has come forward with documentary evidence that conclusively establishes a defense as a matter of law, under CPLR § 3211(a)(1), and has shown that the complaint fails to state a cause of action against it, under CPLR § 3211 (a)(7), and that the cross claims against it should be dismissed as well. S M Tam Architect has submitted its contract with the defendant property owner and an engagement letter between the defendant property owner and an engineer for the underpinning designs, as well as the affidavit of its principal, that show that S M Tam Architect had no contractual relationship with plaintiffs, nor any responsibility for the underpinning work, or for overseeing the excavation work, from which a duty in tort to a party not in privily of contract could arise. S M Tam Architect’s contract with the defendant owner expressly excluded “support of excavation application” and “piling design” and provides that SM Tam Architect “shall not have control or charge of, shall not supervise, and shall not be responsible for construction means, methods, techniques, sequences, or procedures, for safety precautions and programs in connection with Project, for failure of any contractor or subcontractor to carry out its respective work in accordance with the contract documents.”
Thus, S M Tam Architect has demonstrated that it had no contractual obligations concerning excavation or underpinning from which a duty to plaintiffs could have arisen (see Am. Sec. Ins. Co. v Church of God of St. Albans, 131 AD3d 903, 905 [2d Dept 2015] [architect’s “contractual obligations to the Church do not give rise to tort liability in favor of the plaintiffs, as his contract with the owner did not specifically impose any duties with respect to the excavation phase of the project and expressly stated that (architect) did not have control over, and was not responsible for, the construction means and methods or the safety precautions taken in connection with the work”]; 492 Kings Realty, LLC v 506 Kings, LLC, 105 AD3d 991, 994 [2d Dept 2013] [architect who was not retained to provide any services related to protection of adjacent property granted summary judgment]). Further, S M Tam Architect has shown that it was not in privily with plaintiffs, nor did it have a relationship with plaintiffs that was the functional equivalent of privily, from which a
professional malpractice claim could arise (see Sutton Apartments Corp. v Bradhurst 100
Dev. LLC, 107 AD3d 646, 648 [2d Dept 2013] [“The tort claims against the architect fail for
lack of contractual privily, or the functional equivalency of privily”]). “

Hard Money and Real Estate-A New York Story

By Andrew Lavoott Bluestone on April 12, 2019 Posted in Legal Malpractice Cases

A vintage cartoon (from the New Yorker?) has a bunch of New York people at a cocktail party, and the balloon for each of them simply says “Real Estate.” NY Prime Holding LLC v Nationstar Mtge., LLC 2019 NY Slip Op 30857(U) March 27, 2019 Supreme Court, New York County Docket Number: 157879/2018 Judge: John J. Kelley is the story of a Harlem townhouse passed around in a game of musical real estate parcels. A foreclosure action is filed on the very last day possible and ends the first round of the game. The second round starts with a Judiciary Law § 487 claim.

“On October 8, 2008, Badrul Islam (hereinafter Badrul) purchased real property located at
280 West 127th Street in Manhattan (the property) from Jason Hutto Franklin and Jermaine
Hutto. On that date, Badrul gave a mortgage on the property to Golden First Mortgage Corp. (GFMC) in consideration of a $972,000 loan. GFMC designated Mortgage Electronic Recording Systems, Inc. (MERS), as its nominee. Badrul allegedly defaulted in the repayment of the
mortgage loan. On October 29, 2009, Federal National Mortgage Association (hereinafter
Fannie Mae) commenced a foreclosure action (hereinafter the 2009 foreclosure action) against
Badrul, Franklin, and Hutto, among others, in the Supreme Court, New York County, under
Index No. 115280/09. MERS, however, did not transfer or assign the mortgage and underlying
promissory note to Fannie Mae until June 5, 2010. By order dated October 3, 2010, the
Supreme Court (Schlesinger, J.) denied Fannie Mae’s motion for summary judgment on the
complaint in the 2009 foreclosure action, without prejudice to renewal upon proper papers
showing that it had standing to prosecute the action.

Over the next several years, ownership of the property was transferred by deed on
numerous occasions. On October 5, 2012, Badrul deeded the property to K&S Holding Trading
Corp. On December 13, 2012, K&S Holding Trading Corp. deeded the property to Kitty Hawk
Holdings, LLC. On March 13, 2014, Kitty Hawk Holdings, LLC, deeded the property to Jericho
NY Prime Holding, LLC. On April 17, 2014, Jericho NY Prime Holding, LLC, deeded the
property to the plaintiff, NYPH. During that period of time, the mortgage given by Badrul, then
held by Fannie Mae, remained unsatisfied and remained a mortgage of record.

By order dated April 2, 2015, the Supreme Court (Schlesinger, J.) denied Fannie Mae’s
renewed motion for summary judgment on the complaint in the 2009 foreclosure action, and
dismissed the complaint in that action, without prejudice.

Inasmuch as the 2009 foreclosure action was commenced on October 29, 2009, thus
accelerating Badrul’s obligations under the note and mortgage, Fannie Mae or its assignee had
six years from that date, or until October 29, 2015, to recommence an action to foreclose on the
subject mortgage. Thereafter, any person with an interest in the mortgaged property could
maintain an action to cancel the mortgage (see generally RPAPL 1501 [4]; Milone v US Bank
Natl. Assn., 164 AD3d 145, 156 [2d Dept 2018]; Mizrahi v US Bank, Natl. Assn., 156 AD3d 617[2d Dept 2017]; NMNT Realty Corp. v Knoxville 2012 Trust, 151 AD3d 1068, 1069-1070 [2d
Dept 2017]). On October 27, 2015, Fannie Mae assigned the mortgage and note to the
defendant Nationstar. On October 29, 2015, Nationstar, represented by the defendant law firm
SOB, commenced a new foreclosure in the Supreme Court, New York County, under Index No.
452981 /15 (hereinafter the 2015 foreclosure action), naming NYPH and Badrul as defendants. ”

“In the meantime, on August 23, 2018, NYPH commenced the instant action to recover
against SOB for violation of Judiciary Law § 487, against SOB, Nationstar, Provest, Oliver,
Zienkowicz, and a person named Baharul Islam (Baharul) to recover for abuse of process and
fraud, and for a declaration that the judgment entered in the 2015 foreclosure action is null and
void. The gravamen of NYPH’s complaint is that Nationstar and SOB, as its attorneys, knew
that Badrul did not live on Paulding Avenue in the Bronx, and that they purposely served the
summons and complaint in the 2015 foreclosure action upon Baharul, an unrelated person with
a similar name who did reside there. NYPH asserts that this service was a ruse to trick it and
the court into believing that service had been made upon the correct person at the correct
address, and that the defendants lied in order to secure a default judgment against Badrul, who
actually never received notice of that action in time to defend it. NYPH thus contends that the
judgment in the 2015 foreclosure action was secured by fraud and abuse of process, and that it
has been damaged by virtue of being divested of its ownership interest in the property. ”

“The complaint fails to state a cause of action because it constitutes an improper
collateral attack upon the judgment entered in the 2015 foreclosure action. Any claim that the
judgment of foreclosure was obtained by fraud must be made the subject of a motion to vacate
the judgment in that action, pursuant to CPLR 5015(a)(3), on the ground that it was secured by
extrinsic fraud (see Country Wide Home Loans, Inc. v Harris, 136 AD3d 570 [1st Dept 2016)
[judgment properly vacated where mortgagee knew that nonparty to foreclosure action had an
interest in subject property, yet purposefully refused to name or join him in action]). “The
remedy for fraud allegedly committed during the course of a legal proceeding must be exercised
in that lawsuit by moving to vacate the civil judgment (CPLR 5015[a][3]), and not by another
plenary action collaterally attacking that judgment” (St. Clement v Londa, 8 AD3d 89, 90 [1st
Dept 2004); see Kai Lin v Department of Dentistry, Univ. of Rochester Med. Ctr., 120 AD3d 932
[4th Dept 2014); Parker & Waichman v Napoli, 29 AD3d 396, 399 [1st Dept 2006); Vinokur v
Penny Lane Owners Corp., 269 AD2d 226 [1st Dept 2000)).

This rule applies to claims under Judiciary Law§ 487 as well. In Yalkowsky v Century
Apts. Assocs. (215 AD2d 214, 215 [1st Dept 1995)), the Court dismissed a cause of action
against an attorney who allegedly lied to the Civil Court to obtain a judgment in a landlord-tenant
dispute that defeated a tenant’s constructive eviction defense. The Court explained that, even if
it could be proven that the landlord’s attorney lied to the Civil Court, the “plaintiff’s remedy 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”” (id.; see Crouse v McVickar, 207 NY 213, 217 [1912)). ”

A Recent Judiciary Law 487 Case

By Andrew Lavoott Bluestone on April 11, 2019 Posted in Uncategorized

JL§ 487, possibly the oldest part of the anglo-american common law, but for the Magna Carta, regularly comes up in legal malpractice settings. Here, in Sammy v Haupel 2019 NY Slip Op 02372
Decided on March 27, 2019 the Appellate Division, Second Department affirms the dismissal of a claim against Wilson Elser and its top attorneys.

“The events underlying this action relate to the plaintiff’s purchase of real property in 2007. According to the plaintiff, Expedient Title, Inc. (hereinafter Expedient), as the authorized agent of First American Title Insurance Company (hereinafter First American), performed title closing services, including issuing title insurance to the plaintiff, for the plaintiff’s purchase of the property. Ultimately, the plaintiff made a claim on that title insurance policy, the claim was denied, and the plaintiff commenced an action against Expedient and First American (hereinafter the claim denial action).

The plaintiff subsequently commenced this action against Thomas W. Hyland, Tina [*2]Zerilli, and Wilson Elser Moskowitz Edelman & Dicker, LLP (hereinafter collectively the Wilson Elser defendants), who had represented Expedient in the claim denial action, and against Frank Haupel, Michael Schwarz, and DelBello Donnellan Weingarten Wise & Wiederkehr, LLP (hereinafter collectively the DelBello defendants), who had represented First American in the claim denial action. The plaintiff alleged that through their representation of First American and Expedient, the defendants had (1) violated Judiciary Law § 487, (2) committed fraud, (3) filed a fraudulent instrument, (4) committed tortious interference with a contract, and (5) offered a false instrument for filing in the first degree.”

“An attorney is liable under Judiciary Law § 487(1) if he or she “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” “A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity” (Betz v Blatt, 160 AD3d 696, 698). “Judiciary Law § 487 focuses on the attorney’s intent to deceive, not the deceit’s success” (id. at 699 [internal quotation marks omitted]).

Here, the plaintiff did not state a cause of action alleging violations of Judiciary Law § 487. The plaintiff failed to set forth “with specificity,” either in her complaint or in her papers opposing the motions, how the defendants knew or should have known that she did not sign the release upon which they relied in asserting affirmative defenses on behalf of their clients in the claim denial action (id. at 698). Even if the plaintiff had sufficiently pleaded this allegation, she “failed to allege sufficient facts to establish that the[ ] defendants intended to deceive the court” or the plaintiff (Klein v Rieff, 135 AD3d 910, 912; see Ticketmaster Corp. v Lidsky, 245 AD2d 142, 143; Thomas v Chamberlain, D’Amanda, Oppenheimer & Greenfield, 115 AD2d 999, 999-1000). The plaintiff’s conclusory allegation that the defendants intended to deceive the court and the plaintiff in relying on the affirmative defense of release in the claim denial action was not sufficient to state a cause of action alleging a violation of Judiciary Law § 487 (see Betz v Blatt, 160 AD3d at 698; Kupersmith v Winged Foot Golf Club, Inc., 38 AD3d 847, 848). Accordingly, we agree with the Supreme Court’s determination granting those branches of the defendants’ motions which were pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violations of Judiciary Law § 487 insofar as asserted against each of them.”

Strategic Choices and Legal Malpractice

By Andrew Lavoott Bluestone on April 10, 2019 Posted in Legal Malpractice Cases

Big cases and little cases alike are subject to the unique legal malpractice “strategic choice” doctrine as well as a speculation analysis. Bison Capital Corporation v. Hunton & Williams, Supreme Court, New York County, Scarpulla, J. is today’s example. “Bison and its president, Edwin E. Wells, Jr. (“Wells”) entered into a contract with nonparty ATP Oil and Gas Corporation (“ATP”) wherein Bison agreed to help secure a financing source for that company, which was facing imminent bankruptcy (“Contract”).” Eventually, although ATP succeeded, it failed to pay Bison. Bison retained Hunton & Williams to represent it against ATP. After much litigation, during the appellate process communication and agreement broke down. ATP filed for bankruptcy.

“The Legal Malpractice Cause of Action An action for legal malpractice requires proof: (1) of the negligence of the attorney; (2) that the negligence was a proximate cause of the loss sustained, and (3) of actual damages. See Excelsior Capitol LLC v. K&L Gates LLP, 138 A.D.3d 492, 492 (1st Dept. 2016) (internal quotation marks and citation omitted) lv denied 28 N.Y.3d 906 (2016). The complaint must sufficiently allege that the attorney did not exercise the “ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.” Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 (2007). “But for” the attorney’s actions, the plaintiff would have prevailed or not suffered ascertainable damages. Id.
Allegations in support of a legal malpractice claim that are conclusory, speculative or contradicted by the documentary evidence will be dismissed, even if there was negligence. See Katz v. Essner, 136 A.D.3d 575, 576 (1st Dept. 2016). An attorney will not be found negligent for an error of judgment simply because it leads to an unsuccessful result. See Rosner v. Paley, 65 N.Y.2d 736 (1985).

Dissatisfaction with strategic choices does “not support a malpractice claim as a matter of law.” Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 431 (1st Dept. 1990). Attorneys are not held to a
rule of infallibility and will not be found liable for honest mistakes of judgment “where
the proper course is open to reasonable doubt.” Id. at 430.

The burden is on the attorney to “offer a reasonable strategic explanation for the alleged negligence.” Ackerman v. Kesselman, 100 A.D.3d 577, 579 (2nd Dept. 2012)(internal quotation marks and citation omitted). It is only when there is no showing of reasonable decision-making that a “determination [of whether] a course of conduct constitutes malpractice require[ ] findings of fact.” Bernstein v. Oppenheim, 160 A.D.2d 428, 430 (1st Dept. 1990).

The overriding problem with Bison’s claims of malpractice based on defendant’s failure to produce an expert on junk bond “evergreen” fees is that, as stated by the district court and affirmed by the Second Circuit, Wells’ own October 15, 2004 letter to ATP articulated the terms of the parties’ agreement, which was that fees were owed for any transaction prior to the twelve-month period following termination of the agreement. Defendant decided in its professional judgment related to trial strategy that Wells, the drafter of the agreement and identified in paragraph three of the second amended complaint as a “financial advisor with a great deal of experience in oil and gas financing [who] had high-level contacts at financial institutions,” was able to testify sufficiently
about junk bond financing and terms of the parties’ agreement. Bison has not sufficiently alleged that despite this letter, had defendant performed differently, it would have achieved a better result. See Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 A.D.3d 536, 537 (1st Dept. 2013) lv dismissed 21 N.Y.3d 1059 (2013). In any event, if there was error, it is shielded by the attorney judgment rule. See Ackerman v. Kesselman, 100 A.D.3d at 579.”

As Written or As Interpreted?

By Andrew Lavoott Bluestone on April 9, 2019 Posted in Legal Malpractice Cases

Cortland Apts., LLC v Simbari Design Architecture, PLLC 2019 NY Slip Op 50331(U)
Decided on March 19, 2019 Supreme Court, Cortland County Guy, J. is a companion case to Universe Ave. LLC v. Simbari Design Architecture PLLC and raises an interesting question: When a professional opines that work conforms to a statute is it negligence when the governmental authority charged with enforcing the statute offers a novel interpretation that upsets the prior understanding and determines that the work does not conform to the statue?

Here, the architect opined (placed a seal on the drawings confirming that they conformed to the building and zoning laws) and the City of Cortland then dithered over whether a variance was necessary. First no, then yes, and then a court stepped in and found that although in the past no variance was required, now it was.

“Based on the undisputed facts, it is clear the City of Cortland historically interpreted its zoning code to not require variances for projects like the ones at issue in this case. That historic interpretation went into flux as these projects developed. The City indicated it would require a variance for the proposed work at 5 Monroe Heights, then reversed that position. Defendant submitted sealed drawings for the projects at both properties in May 2011; the City issued building permits for both projects. The City then issued stop work orders for the projects, leading to Plaintiff’s appeal and Article 78 proceeding that resulted in judicial interpretation of the code. The Zoning Board of Appeals eventually denied the requests for variances on both projects, requiring Plaintiff to undo construction he had already completed.

Plaintiff submitted the affidavit of Thomas A. Zimmerman, a licensed architect with more than forty years of experience in the field. Zimmerman opined that by affixing the seal to the construction drawings for both projects, Defendant represented that the drawings confirmed to “all applicable codes.” According to Zimmerman, Defendant, “in the exercise of due care in performing their professional duties, should have discovered, recognized, and advised their clients [on the code issue] well in advance of their preparation and sealing of construction drawings.” (Zimmerman Affidavit, paragraph 31).

Zimmerman stops short of indicating whether the professional standard of care required an architect in Defendant’s position to certify his drawings confirmed with applicable codes as written or applicable codes as interpreted by the local authorities. Neither party has addressed this open question in his respective papers. The Court finds that it is not a question that falls within the competence of a lay factfinder to evaluate or for the Court to ultimately decide on this summary judgment motion. See Unger, supra at 777; Mary Imogene Bassett Hosp. v Cannon Design, Inc., 127 AD3d 1377 (3d Dept 2015) (bench trial on issue of common law architectural standard of professional care, with expert testimony from both plaintiff and defendant); Town of [*7]Kinderhook v Vona, 136 AD3d 1202 (3d Dept 2016) (summary judgment in accounting malpractice case not granted where plaintiff and defendant both submitted expert affidavits) .

The Court finds Defendant met his initial burden for summary judgment on the professional malpractice claim, but granting all reasonable inferences in Plaintiff’s favor, Plaintiff has submitted sufficient proof in admissible form to establish the existence of material fact issues, requiring the denial of summary judgment.

Plaintiff’s negligence and negligent misrepresentation claims rely on the same set of facts as the contract and professional malpractice claims. Both claims are dismissed as duplicative of the other claims. See Garten v Shearman & Sterling LLP, 52 AD3d 207, 208 (1st Dept 2008).”

Limited Retainers Are Permissible; Multiple Representations, Too.

By Andrew Lavoott Bluestone on April 8, 2019 Posted in Legal Malpractice Cases

The primary lesson to be learned from Salans LLP v VBH Props. S.R.L. 2019 NY Slip Op 02611 Decided on April 4, 2019 Appellate Division, First Department is that courts will deem a studied prediction on what would have happened if counsel had actually gone to court and made certain arguments is that they will almost always call it “speculation” and dismiss a legal malpractice case.

The second less to learn is that limited scope retainer agreements are permissible, but ambiguous ones are construed in favor of the client. Lastly, representing the president and the company at the same time is permissible sometimes.

“Contrary to plaintiff’s argument, the scope of the work it performed under the 2008 retainer agreement, which included not only numerous contracts and negotiations but also employment litigation in the U.K., makes it at least reasonable to construe the agreement as authorizing plaintiff to represent Luxury and Hoeksema in the underlying loan action (see Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 177 [1986] [where there is ambiguity in retention agreement, agreement is construed in favor of client]).

However, plaintiff demonstrated prima facie entitlement to judgment in the legal malpractice counterclaim by showing that defendants could not prove that but for plaintiff’s failure to appear at the TRO hearing the hearing court would have denied the TRO or set a shorter return date (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004] [holding that to establish a claim for litigation malpractice the client “must meet the case within a case’ requirement, demonstrating that but for’ the attorney’s conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages”]). Defendants speculate that had plaintiff appeared at the TRO hearing, injunctive relief may have been denied or the hearing court may have adjourned the case to an earlier date. Such speculation is insufficient to sustain a claim for legal malpractice (see Freeman v Brecher, 155 AD3d 453, 453 [1st Dept 2017]; Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).”

“Luxury and Hoeksema contend that there is a conflict of interest in plaintiff’s [*2]representation of both of them. However, as Hoeksema is the sole owner, director and officer of Luxury, there is no conflict (see Topic: Concurrent Representation of Corporation and Sole Shareholder, Director and Officer (NY St Bar Assn Comm on Prof Ethics Op 868 [May 31, 2011]). Moreover, Luxury and Hoeksema failed to show any injury caused by the alleged conflict.”

Gone Like That!

By Andrew Lavoott Bluestone on April 5, 2019 Posted in Legal Malpractice Cases

Gengo v Storms 2019 NY Slip Op 02504 Decided on April 3, 2019 Appellate Division, Second Department displays the importance of the nuts and bolts of litigation. Commencing the action and serving the defendant is the base of any litigation, and here, it went south very quickly.

“On October 23, 2016, the plaintiff commenced this action sounding in legal malpractice. In March 2017, the defendant moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint based on the failure to serve process after two defective attempts at service. The plaintiff opposed the motion and cross-moved, among other things, pursuant to CPLR 306-b to extend the plaintiff’s time to serve process. After a hearing to determine the validity of service, the Supreme Court granted the subject branch of the defendant’s motion and denied the subject branch of the plaintiff’s cross motion. The plaintiff appeals.

“An extension of time for service is a matter within the court’s discretion” (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 101). Such a motion may be granted upon “good cause shown or in the interest of justice” (CPLR 306-b). ” Good cause’ and interest of justice’ are two separate and independent statutory standards” (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31).

Both of the plaintiff’s attempts at service were defective. The plaintiff failed to establish that he exercised reasonably diligent efforts in attempting to effect proper service. Accordingly, he did not establish a basis for a “good cause” extension of time to serve process pursuant to CPLR 306-b (see Hobbins v North Star Orthopedics, PLLC, 148 AD3d 784, 787-788; Wilbyfont v New York Presbyt. Hosp., 131 AD3d 605, 607). Nor has the plaintiff set forth grounds for an extension of time in the interest of justice. Accordingly, we agree with the Supreme Court’s determination to grant that branch of the defendant’s motion which was to dismiss the complaint and to deny that branch of the plaintiff’s cross motion which was to extend the time to serve process.”