A Lot of Litigating Over a Smaller Case

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

Attorney fees collections are frequently said to be the major cause of legal malpractice litigation. Some lawyers have resorted to starting litigation lending setups which lend money to their clients, thereby arranging for the attorney to be paid and the client to be the subject of a high-interest litigation loan. Justicebacker Inc. v Abeles 2019 NY Slip Op 30294(U) February 7, 2019
Supreme Court, New York County Docket Number: 650374/2017 Judge: David Benjamin Cohen is an example of how this might work. This portion of the case is an argument over disqualification of an attorney under the advocate-witness rule.

“Abeles is a managing member of a restaurant. The restaurant operated out of a leased space
which was severely damaged by Hurricane Sandy. The landlord refused to make the necessary repairs to the premises. As a result, Abeles hired plaintiff/third party defendant Sunny Barkat and his law firm plaintiff JS Barkat, PLLC (Barkat, PLLC), to represent him in three law
suits and an arbitration related to the landlord’s refusal to repair the damage to the leased space.
On December 13, 2012, Abeles signed a retainer with Barkat and Barkat, PLLC. Pursuant to that
retainer agreement, Barkat and Barkat PLLC were to be paid 25% of any recovery, or $25,000,
whichever was greater. The retainer provided that during the pendency of the litigation, Abeles
was to pay Barkat PLLC an initial $2,500, and $1,200 per month thereafter until he paid Barkat
PLLC a total of $25,000. In the event Abeles was unable to continue making payments, Barkat
PLLC would receive a 20% ownership interest in Abeles’ restaurant.
On November 5, 2013, Abeles signed a second retainer agreement with Barkat and Barkat
PLLC which increased the fees Abeles was to pay Barkat and Barkat, PLLC. In the new retainer
agreement, Abeles agreed that Barkat PLLC would receive 40% of any recovery, required a
onetime payment of $7,500, and directed that Abeles would continue paying $1,500 per month
until he paid Barkat PLLC $18,000.
In July 2015, Abeles began experiencing financial problems and was unable to continue
making the monthly $1,500 payments. Barkat then informed Abeles that he owned a crowdfunding
company plaintiff Justicebacker Inc. (Justicebacker), through which Barkat could raise money for
Abeles’s living and business expenses. On August 10, 2015, Abeles signed a commercial litigation
financing agreement with Justicebacker in which Justicebacker agreed to pay Abeles $40,000 for
an 18% interest in his lawsuits or $60,000 for a 20% interest in the lawsuit. Abeles claims he never
received any funds from Justicebacker.

In August 2016, Barkat informed Abeles that he had hired plaintiff Michael Wolk (Wolk) and the Law Offices of Michael B. Wolk, P.C., (Wolk, P.C.) to help him with the lawsuits. Wolk
ultimately settled the lawsuits for $75,000. Abeles claims that he informed Wolk that he would
refuse to settle the cases unless he received at least $33,000 for himself. Abeles also claims that
Barkat and Wolk told him his position was unreasonable because he owed $52,000 to
Justicebacker. At that time, Abeles had already made $46,000 in payments to Barkat PLLC. Abeles
claims that Barkat offered to waive his fee so that Justicebacker would receive $52,000, Wolk
would receive $3,000, and defendant would receive $20,000. Abeles states that he refused to accept
that payout agreement and had Wolk negotiate with Justicebacker to reduce its claim, pursuant to
the commercial litigation financing agreement, from $52,000 to $47,000. At that point, Abeles
claims that Wolk agreed to waive his fee so that Abeles would receive $28,000 from the $75,000
settlement.
Abeles claims that after settling his lawsuits, Barkat and Wolk did not disburse any money
to him. Rather, on January 23, 2017, plaintiffs commenced this suit, while Wolk retained the
$75,000 in his escrow account. In the first cause of action, Justicebacker seeks payment of
$53,5000 pursuant to the terms of the commercial litigation financing agreement. In the second
cause of action, Justicebacker seeks the payment of its legal fees incurred by this action, pursuant
to the provisions of the commercial litigation financing agreement. In the third cause of action,
Barkat PLLC seeks payment of legal fees under a quantum meruit theory. In the fourth cause of
action, Wolk seeks payment of legal fees as the escrowee of the $75,000. ”

“Finally, in view of the fact that Wolk will be called as a witness to testify regarding his
negotiations with Justicebacker on Abeles’s behalf, Wolk should be disqualified pursuant to the
advocate-witness rules (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]; Gould
v Deco/ator, 131AD3d448 [2°d Dept 2015][motion court providently exercised its discretion in
granting the defendants’ motion to disqualify attorneys from representing the plaintiff pursuant to the advocate-witness rules]). “

What Do We Talk About When We Talk About Legal Malpractice

By Andrew Lavoott Bluestone on February 14, 2019 Posted in Uncategorized

We’re proud to present an article in today’s Outside Counsel Column in the New York Law Journal about legal malpractice.

When we speak of legal malpractice, generally the discussion is rooted on a “departure” from good practice. The missed deadline, the rejected brief, the failure to appear in court, the missed argument. However, departure is only the first of four elements of legal malpractice. The real battle is in the “but for” arena, where little discussion takes place.

The article is in today’s NYLJ.

No Legal Malpractice in this Child Custody-Support Case

By Andrew Lavoott Bluestone on February 13, 2019 Posted in Legal Malpractice Cases

Legal malpractice in child custody / child support settings is notoriously difficult to prove. To begin, there is often a privity problem. If that issue is solved, then the speculation question of “what would the judge have done if…” comes up. It seems that this was the shortcoming in Chaudhuri v Kilmer 2018 NY Slip Op 00964 [158 AD3d 1276] February 9, 2018 Appellate Division, Fourth Department. The question of how a judge would have ruled if the attorney had presented this particular piece of evidence or that argument rarely works out in plaintiff’s favor.

“We likewise affirm the order in appeal No. 1. In order to recover damages in a legal malpractice action, 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, that this failure was the proximate cause of actual damages to plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Hufstader v Friedman & Molinsek, P.C., 150 AD3d 1489, 1489 [3d Dept 2017] [internal quotation marks omitted]). In moving for summary judgment dismissing the complaint in such an action, a defendant must “present evidence in admissible form establishing that plaintiff is unable to prove at least one of [those] elements” (id. at 1490 [internal quotation marks omitted]; see New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1348 [4th Dept 2015]). Here, defendant met her initial burden on the motion by establishing that plaintiff is unable to prove proximate cause and damages, and plaintiff “failed to submit nonspeculative evidence in support of” those elements in opposition to defendant’s motion (New Kayak Pool Corp., 125 AD3d at 1348 [internal quotation marks omitted]; see Hufstader, 150 AD3d at 1490-1491; Barbieri v Fishoff, 98 AD3d 703, 704-705 [2d Dept 2012]). “

Not a Limited Engagement Letter

By Andrew Lavoott Bluestone on February 12, 2019 Posted in Legal Malpractice Basics

Attorneys are expected zealously to represent clients, all within the cannons of ethics, of course. However, “that wasn’t my job” or “I wasn’t retained to do that” is a frequent defense in legal malpractice cases. Exeter Law Group LLP v Immortalana Inc. 2018 NY Slip Op 01269 [158 AD3d 576] February 22, 2018 Appellate Division, First Department spends little time rejecting that defense.

“Defendants/third-party plaintiffs (hereinafter referred to as the clients) sufficiently stated a claim for legal malpractice against the firm. In particular, the clients alleged an attorney-client relationship; the firm’s failure to exercise ordinary and reasonable skill and knowledge; and damages flowing from additional costs in retaining substitute counsel to restructure the client entities so as to avoid taxes, and the cost of taxes occasioned by the improper corporate structure (see generally AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). The engagement letter does not conclusively establish that the services rendered by the firm were outside the scope of the engagement (CPLR 3211 [a] [1]). Concur—Friedman, J.P., Sweeny, Kahn, Singh, Moulton, JJ. “

The Common Interest Privilege in Discovery

By Andrew Lavoott Bluestone on February 11, 2019 Posted in Legal Malpractice Basics

The Second Department gives a black-letter lecture on the common interest privilege, in a legal malpractice setting. Saint Annes Dev. Co. v Russ 2018 NY Slip Op 00451 [157 AD3d 919]
January 24, 2018 Appellate Division, Second Department holds that:

“The common-interest privilege is an exception to the traditional rule that the presence of a third party waives the attorney-client privilege (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d 186, 205 [2013]; Aetna Cas. & Sur. Co. v Certain Underwriters at Lloyd’s, London, 176 Misc 2d 605, 611 [Sup Ct, NY County 1998], affd 263 AD2d 367 [1999]; In re Quigley Co., 2009 WL 9034027, *2-3, 2009 Bankr LEXIS 1352, *7-8 [SD NY, Apr. 24, 2009, No. 04-15739 (SMB)]). To fall within that exception, the privileged communication must be for the purpose of furthering a legal, as opposed to a commercial, interest common to the client and the third party (see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; Delta Fin. Corp. v Morrison, 69 AD3d 669 [2010]; U.S. Bank N.A. v APP Intl. Fin. Co., 33 AD3d 430, 431 [2006]). “The legal interest that those parties have in common must be identical (or nearly identical), as opposed to merely similar” (Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205; see United States v Doe, 429 F3d 450, 453 [3d Cir 2005]; F.D.I.C. v Ogden Corp., 202 F3d 454, 461 [1st Cir 2000]). Moreover, the communication must “relate to litigation, either pending or anticipated, in order for the exception to apply” (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 620 [2016]; see Hyatt v State of Cal. Franchise Tax Bd., 105 AD3d at 205).”

What Is Required to Avoid Summary Judgment?

By Andrew Lavoott Bluestone on February 7, 2019 Posted in Legal Malpractice Cases

In Bakcheva v Law Offs. of Stein & Assoc. 2019 NY Slip Op 00844 Decided on February 6, 2019 the Second Department gives an example of what must be demonstrated by plaintiff to avoid summary judgment on a claim of legal malpractice.

“In January 2012, the plaintiff purchased a penthouse apartment on the seventh floor of a condominium located at 390 Kings Highway in Brooklyn. The plaintiff was represented in that transaction by the defendants Law Offices of Stein & Associates (hereinafter the law firm) and Irene Stein (hereinafter together the defendants). A few months after the closing, the plaintiff became aware that the apartment’s second floor was not as described in the certificate of occupancy or the condominium’s plan documents. The plaintiff commenced this action against, among others, the defendants, to recover damages for legal malpractice and fraud. After discovery, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted that branch of the defendants’ motion which was for summary judgment dismissing the fraud cause of action, but denied that branch of the defendants’ motion which was for summary judgment dismissing the legal malpractice cause of action. The defendants appeal from so much of the order as denied that branch of their motion.

A plaintiff seeking to recover damages for legal malpractice must prove that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see McCoy v Feinman, 99 NY2d 295, 301-302; Biberaj v Acocella, 120 AD3d 1285, 1286). A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages (see Iannucci v Kucker & Bruh, LLP, 161 AD3d [*2]959, 960; Betz v Blatt, 160 AD3d 696, 698). The defendant must affirmatively demonstrate the merits of a defense, rather than merely pointing out gaps in the plaintiff’s proof (see Iannucci v Kucker & Bruh, LLP, 161 AD3d at 960).

We agree with the Supreme Court that the defendants were not entitled to summary judgment dismissing the legal malpractice cause of action. Although the defendants established their prima facie entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact in opposition. Specifically, the plaintiff submitted evidence that she had informed the defendants, prior to the closing, that the main portion of the apartment was on the seventh floor of the building and that the apartment included a second level. According to the plaintiff, the defendants committed malpractice because they failed to recognize the illegality of the second level, since neither the certificate of occupancy nor the approved condominium offering plan authorized the existence of an eighth floor to the condominium (see id.).”

Accounting Malpractice and So Much More

By Andrew Lavoott Bluestone on February 6, 2019 Posted in Legal Malpractice Cases

Epiphany Community Nursery Sch. v Levey 2019 NY Slip Op 00842 Decided on February 5, 2019 Appellate Division, First Department Singh, J., J. is not primarily about accounting malpractice. That nugget is merely part of a much larger fraud which seemed to swamp a NYC private school. The intra-familial fraud is stunning.

“In 1973 Wendy Levey (Wendy) married defendant Hugh Levey (Hugh). Two years later Wendy founded Epiphany, a not-for-profit corporation that operates a kindergarten and nursery school on the Upper East Side of Manhattan.

Hugh is an investment banker with an undergraduate degree from Yale University and a M.B.A. from Harvard. Hugh and defendant Claire Gruppo co-founded defendant Gruppo Levey & Co. (GLC), a small investment banking firm that provides strategic advice and private capital raising services to businesses, financial sponsors and management teams throughout the United States. Defendant Gruppo, Levey Holdings Inc. (GLH) is GLC’s parent company, and defendant Frog Pond Partners L.P. (Frog Pond) is a limited partnership owned indirectly by Hugh and Gruppo. Of this group, all but Hugh are the “collateral defendants.” Defendant Davie Kaplan CPA, P.C. (Davie Kaplan) was an outside auditor for Epiphany from 2010 to 2012.

The complaint alleges two sets of fraudulent acts. These acts were allegedly uncovered in a matrimonial action between Wendy and Hugh that was settled in October 2016. Wendy and Hugh are now divorced.

The first series of fraudulent acts occurred between 2002 and 2003 when Hugh induced Epiphany to sell its extracurricular programs to nonparty Magic Management LLC (Magic) for an unreasonably low price. At that time, Hugh had a 100% ownership interest in defendant January Management, Inc., general partner of nonparty January Partners, L.P., which was the sole member of Magic.

Pursuant to an asset purchase agreement dated February 12, 2003, Epiphany sold its extracurricular programs to Magic for $300,000, $30,000 of which was paid in cash and the remaining $270,000 was to be paid pursuant to a promissory note payable over 10 years in installments of $27,000, plus interest. Magic also agreed to pay monthly rent to use Epiphany’s facilities. Hugh claimed that although Magic occupied less than 10% of Epiphany’s space, Magic’s rent would be $481,026. Magic’s rent was represented to be more than $100,000 above Epiphany’s rent for the building.

Wendy, Epiphany’s Executive Director, did not have a financial background. She believed it was in the school’s best interest to have someone with Hugh’s financial expertise to assist with Epiphany’s financial affairs. Wendy signed the asset purchase agreement on Epiphany’s behalf without obtaining her own appraisal or verifying whether Magic paid the school what it owed.

The complaint alleges that the $300,000 purchase price was based on a fraudulent valuation commissioned by Hugh, which was “substantially inaccurate.” By applying false figures, Hugh allegedly reduced the purchase price by $1.5 million. The complaint further alleges that if the valuation had been properly calculated the purchase price would have exceeded $1.8 million.

In addition, Magic failed to pay rent or the amount owed on the promissory note. The complaint alleges that Hugh manipulated Epiphany’s corporate and financial records to hide Magic’s failure to pay.

The second set of fraudulent acts allegedly took place between 2007 and 2013. Hugh made unauthorized transfers of over $5.9 million from Epiphany’s bank accounts to himself and some of the collateral defendants by linking the bank accounts to his private banking portfolio. Hugh, with the assistance of Davie Kaplan, falsely recorded these transfers in Epiphany’s general ledgers as “loans.” However, there were no documents to memorialize these “loans.” Nor were [*2]any loan payments ever made. The “loans” were subsequently characterized as “other receivables.” At the end of each year, the other receivables were offset by fake charges Epiphany owed GLC or GLH for “consulting fees” and “lease commissions.”

In September 2010, Hugh allegedly arranged for his long-time personal accountant, David Pitcher, who was employed by defendant Davie Kaplan to serve as Epiphany’s outside auditor. Davie Kaplan delivered 2010, 2011, and 2012 audit reports. Davie Kaplan also performed an audit for fiscal year 2013 but it did not issue a 2013 audit report.

Epiphany commenced this action on August 31, 2016. It alleges 13 causes of action, including: (1) fraud by Hugh and Davie Kaplan; (2) aiding and abetting fraud by collateral defendants and Davie Kaplan; (3) breach of fiduciary duty by Hugh; and (4) aiding and abetting breach of fiduciary duty by the collateral defendants and Davie Kaplan.”

“Finally, we affirm Supreme Court’s dismissal of the fraud, aiding and abetting fraud and breach of fiduciary claims against Davie Kaplan as duplicative of Epiphany’s untimely accounting malpractice claim (see Murray Hill Invs. v Parker Chapin Flattau & Klimpl, LLP, 305 AD2d 228 [1st Dept 2003] [affirming dismissal of fraud claim as duplicative of the untimely legal malpractice claim, and noting that it was asserted in an attempt to circumvent the legal malpractice limitations period])”

Short and Sweet Denial of Judiciary Law 487 Motion

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

It’s the oldest law in anglo-american jurisprudence; it’s rarely applied and even more rarely applied successfully. Here is a swing and miss in Matter of B. (Anonymous), also known as L. (Anonymous) Motion No: 2016-10028 Slip Opinion No: 2019 NY Slip Op 62045(U) Decided on February 1, 2019 Appellate Division, Second Department, Motion Decision.

“Motion by Sebastian B. for leave to intervene on an appeal from an order of the Supreme Court, Richmond County, dated August 29, 2016, and pursuant to Judiciary Law § 487 to impose a sanction upon the attorney for the petitioner-respondent for statements made during oral argument of the appeal.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is denied.”

A Short Course in Contribution and Indemnity

By Andrew Lavoott Bluestone on February 4, 2019 Posted in Legal Malpractice Basics

Board of Mgrs. of Manhattan Place Condominium v 616 First Ave., LLC 2019 NY Slip Op 30216(U) January 25, 2019 Supreme Court, New York County Docket Number: 652240/17
Judge: Frank P. Nervo is an excellent primer on the law of contribution and indemnity. In this property construction setting, there is none available.

“The underlying action herein concerns a building (the building) which is owned by the plaintiff Manhattan Place Condominium (the condominium), and located at 630 First Avenue in the County, City and State of New York. See notice of motion, exhibit A (complaint), if 12. The co-plaintiff Board of Managers of Manhattan Place Condominium (the board) is the condominium’s board of managers. Id., if 1. The underlying complaint alleges that the building suffered structural damage as a result of negligent excavation and dewatering work that was performed on the adjacent property in 2014. Id., if 11. It also”alleges that defendant Peterson Geotechnical Construction LLC (Peterson) was the dewatering subcontractor retained by the condominium’s general contractors, defendants JDS Construction Group LLC and JDS Development LLC {together, JDS). Id., iii! 26-27. Peterson’s third-party complaint alleges that Moretrench designed the dewatering system that Peterson used in its work on the building. Id.; exhibit B (third-party complaint), 11-13. The original complaint does not mention Moretrench at all, however; and instead alleges that co-defendant RA Consultants, LLC (RA Consultants) designed the dewatering system. Id., exhibit A (complaint), if 25. ”

“First, Moretrench argues that “Peterson cannot assert a claim for common-law indemnification … because it is being sued for active negligence, not for vicarious liability.” See notice of motion Kauffman affirmation, 16-19. To support its argument, Moretrench cites the decision of the Appellate Division, First Department, in Chatham Towers, Inc. v Castle Restoration & Constr., Inc. (151 AD3d 419 [I st Dept 2017]), which held that:

“Common-law indemnification may be pursued by parties who have been held vicariously liable for the party that actually caused the negligence that injured the plaintiff. Here, however, there is no common-law indemnification claim because [plaintiff] sought recovery from [defendant/third-party plaintiff] because of the latter’s alleged wrongdoing-. breach of contract-and not vicariously because of any negligence on the part of [third-party defendant].” 151 AD3d at 420 (internal citations omitted). In response, Peterson cites the First Department’s holding in 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am. (259 AD2d 75 [1st Dept 1999]) that:

“The principle of common-law, or implied indemnification, permits one who has
been compelled to pay for the wrong of another to recover from the wrongdoer the
damages it paid to the injured party. In the classic case, implied indemnity
permits one held vicariously liable solely on account of the negligence of another
to shift the entire burden of the loss to the actual wrongdoer.
“Implied indemnification has permitted a vicariously liable building owner and
contractor to shift all liability to a subcontractor whose negligence actually caused
the loss. However, “a party who has itself actually participated to some degree in
the wrongdoing cannot receive the benefit of the doctrine [of indemnification].”
Thus, to be entitled to indemnification, the owner or contractor seeking indemnity
must have delegated exclusive responsibility for the duties giving rise to the loss
to the party from whom indemnification is sought.” 259 AD2d at 80 (internal citations omitted). Peterson then argues that “in the instant case … Moretrench was solely responsible for the design of the dewatering system … [and] plaintiffs seek damages allegedly due, in part, to the improper design of the dewatering system.” See mem of law in opposition, at 4. Moretrench replies that the 17 Vista Fee Assoc. holding is factually inapposite, however, because: 1) paragraph 25 of the underlying complaint alleges that RA Consultants designed the dewatering system that as used at the building; 2) the underlyingcomplaint “never mentions Moretrench or alleges that Peterson designed the dewatering system”; and 3) paragraph 27 of the underlying complaint alleges that Peterson “performed the dewatering and related work” in a negligent fashion. See reply mem, at 3-5. After reviewing the underlying complaint, the court agrees that it contains no allegations whatsoever regarding Moretrench, or that the exclusive responsibility for designing the dewatering system had been delegated to Peterson. Thus, the court also agrees that Peterson does not stand in the same shoes as the defendant/third-party plaintiff in 17 Vista Fee Assoc., because the underlying complaint alleges that Peterson “actually participated to some degree in the wrongdoing” by itself performing
negligent dewatering work. As a result, the court rejects Peterson’s first opposition argument
and concludes that New York law does not permit Peterson to avail itself of the doctrine of
implied indemnification. Consequently, so much of Peterson’s third-party claim as alleges
“indemnification” is not legally viable.

Next, Moretrench argues that, because “plaintiffs are seeking purely economic loss
damages against Peterson … Peterson’s contribution claim against Moretrench should be
dismissed.” See notice of motion Kauffman affirmation, 20-21. In its reply papers,
Moretrench noted the First Department’s decision in Children’s Corner Learning Ctr. v A.
Miranda Contr. Corp. (64 AD3d 18 [lst Dept 2009]) holding that “[w]here … the underlying
claim seeks purely economic damages, a claim for common-law contribution is not available,”
because “it is well established that purely economic loss resulting from a breach of contract does
not constitute injury to property.” 64 AD3d at 323 (internal citations and quotation marks
omitted). Moretrench’smotion had noted that so much of Peterson’s third-party claim as alleges
contribution is defective because the underlying complaint had only alleged that plaintiffs sustained “economic losses,”

How A Lawfirm May Limit Its Retainer Letter

By Andrew Lavoott Bluestone on February 1, 2019 Posted in Legal Malpractice Cases

Clients rightfully expect the retainer lawyer to engage zealously on their behalf. What are the limits of such representation? How does the lawfirm correctly limit its obligations to the client. It starts by following the rules for a retainer agreement or a letter of engagement set forth in 22 NYCRR § 1215.

Attallah v Milbank, Tweed, Hadley & McCloy, LLP 2019 NY Slip Op 00583 Decided on January 30, 2019 Appellate Division, Second Department describes how the letter might be written.

“In 2011, the defendant agreed to assist the plaintiff on a pro bono basis, in a very limited fashion, regarding the plaintiff’s expulsion in 2010 from the New York College of Osteopathic Medicine. To that end, the parties executed a letter of engagement dated July 7, 2011. The letter of engagement provided, in relevant part, that: “Our services will include all activities necessary and appropriate in our judgment to investigate and consider options that may be available to urge administrative reconsideration of your dismissal from the New York College of Osteopathic Medicine (the College’). This engagement does not, however, encompass any form of litigation or, to the extent ethically prohibited in this circumstance, the threat of litigation, to resolve this matter. This engagement will end upon your re-admittance to the College or upon a determination by the attorneys working on this matter that no non-litigation mechanisms are available to assist you. The scope of the engagement may not be expanded orally or by conduct; it may only be expanded by a writing signed by our Director of Public Service.”

Despite the defendant’s non-litigation efforts, the College refused to reconsider the plaintiff’s dismissal. Thereafter, the plaintiff commenced this action against the defendant to recover damages for breach of fiduciary duty, legal malpractice, and violations of Executive Law § 296, the New York Administrative Code, and the New York Corrections Law. The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The Supreme Court granted the defendant’s motion, and the plaintiff appeals.”

“We agree with the Supreme Court’s determination granting the defendant’s motion to dismiss the amended complaint. Contrary to the plaintiff’s contention, according to the parties’ undisputed letter of engagement, the defendant did not promise to negotiate administrative reconsideration on the plaintiff’s behalf but, rather, that it would “investigate and consider options that may be available to urge administrative reconsideration of your dismissal from the New York College of Osteopathic Medicine.” The letter of engagement conclusively demonstrated that there was no promise to negotiate. There was only a promise to investigate and consider whether there were any options possibly available to urge the school to reconsider the plaintiff’s expulsion. Anything else, including the defendant’s failure to commence litigation against the school and the defendant’s alleged rendering of legal advice regarding the efficacy of the plaintiff’s commencing a defamation action against others, was outside the scope of the letter of engagement.

An attorney may not be held liable for failing to act outside the scope of a retainer (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428). Therefore, since the defendant’s alleged failure to negotiate with the school, its alleged failure to commence litigation against the school, and its alleged failure to properly advise the plaintiff on the efficacy of a defamation action against nonschool parties fell outside the scope of the parties’ letter of engagement, dismissal of the cause of action alleging legal malpractice was warranted, pursuant to CPLR 3211(a)(1), on documentary evidence grounds.”