BUFFALO:  Experts are important, no?  The short answer is “of course!”  The longer answer is that they are necessary, absolutely necessary, to plaintiff’s legal malpractice case, as Murray v Lipman 2018 NY Slip Op 04484  Decided on June 15, 2018  Appellate Division, Fourth Department tells us.

“Memorandum: Plaintiff commenced this legal malpractice action seeking damages based on defendants’ representation of her in matters involving workers’ compensation. Defendants moved for summary judgment dismissing the complaint, and Supreme Court granted the motion. We affirm. In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiff is “unable to prove at least one necessary element of the legal malpractice action” (Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]), e.g., ” that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community’ ” (Phillips v Moran & Kufta, P.C., 53 AD3d 1044, 1044-1045 [4th Dept 2008]). Here, defendants met their initial burden on the motion with respect to that element (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To the extent that plaintiff alleged a violation of the Rules of Professional Conduct (22 NYCRR 1200.0) in opposition to defendants’ motion, we note that “such an alleged violation does not, without more, support a malpractice claim” (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014]). Inasmuch as plaintiff did not submit an expert’s affidavit “delineating the appropriate standard of professional care and skill’ to which defendants were required to adhere under the circumstances present here,” she failed to raise an issue of fact concerning defendants’ compliance with the applicable standard of care (Zeller v Copps, 294 AD2d 683, 684 [3d Dept 2002]; see Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243, 243 [1st Dept 2005]; see also Zeller v Copps, 294 AD2d 683, 684-685 [3d Dept 2002]).

Legal malpractice, to the surprise of many, is a “no harm-no foul” situation in which not only must a mistake be made, but that mistake must have proximate results.  Buongiovanni v Hasin  2018 NY Slip Op 04302 Decided on June 13, 2018  Appellate Division, Second Department is a good example.  Did the first attorney make mistakes?  Perhaps.  Was there a second attorney that could have fixed the mistakes? Perhaps.  When the AD granted a new trial, did it wipe out all the earlier mistakes.  Yes.

“The defendant David V. Hasin, the principal of the defendant Law Office of David V. Hasin, represented the plaintiff in related divorce actions. Hasin was permitted to withdraw as [*2]counsel, and the plaintiff was assigned new counsel. The plaintiff’s assigned counsel was permitted to withdraw as counsel five days prior to the start of the trial in the first action, and the Supreme Court denied the plaintiff’s application for an adjournment to enable her to obtain new counsel and conduct further discovery. The parties proceeded to trial, resulting in a decision after trial and a judgment of divorce dated August 20, 2012.

On November 5, 2014, the plaintiff commenced this action, inter alia, to recover damages for legal malpractice, alleging that Hasin provided her with negligent representation in the divorce actions. In January 2015, the defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice, arguing that successor counsel could have remedied any alleged deficiencies in Hasin’s representation. In an order dated March 26, 2015, the Supreme Court, inter alia, denied the branch of the defendants’ motion which was to dismiss the cause of action alleging legal malpractice, noting that “at this point in the litigation, the Court cannot conclude as a matter of law that successor counsel had an adequate opportunity to correct the alleged inadequacies in [Hasin’s] representation.”

“In April 2015, the defendants moved, inter alia, for leave to renew that branch of their motion which was to dismiss the cause of action alleging legal malpractice. In support of their motion, they submitted a decision and order of this Court dated November 19, 2014, which, inter alia, vacated the judgment of divorce and remitted the matter to the Supreme Court to allow the plaintiff to obtain new counsel in the divorce actions and to conduct further discovery (see Buongiovanni v Buongiovanni, 122 AD3d 786). The defendants asserted that they had not located the decision and order dated November 19, 2014, before making their motion to dismiss because they misspelled the plaintiff’s name during an online search for decisions involving the plaintiff. In an order dated June 1, 2015, the Supreme Court, among other things, granted that branch of the defendants’ motion which was for leave to renew, and, upon renewal, in effect, vacated the prior determination and thereupon granted that branch of the defendants’ prior motion which was to dismiss the cause of action alleging legal malpractice.”

“Here, the vacatur of the judgment of divorce in the decision and order dated November 19, 2014, was a new fact not offered on the prior motion to dismiss that would change the original determination (see CPLR 2221[e][2]). The judgment of divorce was vacated based upon the Supreme Court’s improvident exercise of discretion in denying the plaintiff’s adjournment request in the divorce actions (see Buongiovanni v Buongiovanni, 122 AD3d at 788), and in the present action the plaintiff does not seek to recover damages based upon the expenses incurred in connection with her appeal from the judgment of divorce (cf. Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443). Since the judgment of divorce was vacated and the plaintiff was [*3]afforded an opportunity to retain new counsel and to conduct further discovery, the plaintiff cannot, under these circumstances, establish that she has sustained damages proximately caused by Hasin’s alleged negligent representation (see Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; Perks v Lauto & Garabedian, 306 AD2d 261, 262; Albin v Pearson, 289 AD2d 272, 272-273; cf. Tooma v Grossbarth, 121 AD3d 1093). Further, the defendants’ failure to discover the decision and order dated November 19, 2014, due to a spelling error was tantamount to law office failure which, under the circumstances of this case, constituted a reasonable justification (see Hackney v Monge, 103 AD3d 844, 845; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391-392).”

Grace v. Law  is the groundbreaking Court of Appeals case which said, in essence, if you have a meritorious appeal, it must be taken before starting a legal malpractice case.  Application of the doctrine has been spotty.  Leicht v Meyer, Suozzi, English & Klein, P.C.  2018 NY Slip Op 31161(U)  May 17, 2018  Supreme Court, Kings County  Docket Number: 505392/17  Judge: Carl J. Landicino is the latest in this rare breed.

“Plaintiff, a New York City sanitation worker, retained defendants to represent him in the underlying personal injury action involving an accident in which he drove his sanitation Plaintiff, a New York City sanitation worker, retained defendants to represent him in the underlying personal injury action involving an accident in which he drove his sanitation On January 19, 2010, Mack Trucks filed a third-party complaint in the underlying action against Wausau and Truis, Inc. (the manufacturer and distributor of the truck’s bumper assembly, respectively). In December, 2011, the City, Mack Trucks, Truis and Wausau moved for summary judgment dismissing the complaint. By order dated July 10, 2013, this court (Landicino, J.), granted the City’s motion for summary judgment and denied the motions of Mack, Truis and Wausau (id.).

With respect to the City, the court held that it had made a prima facie showing that the subject “low entry sanitation vehicle was a product of a discretionary decision making process and that the product was reasonably safe for its intended use” (id. at 4) and that plaintiff had failed to raise a material question of fact in opposition (id. at 5). With respect to Mack Trucks, the issue was whether the truck, as designed, was reasonably safe for its intended use. Relying upon the testimony of the witnesses forthe City, Truis, and Wausau, Mack Trucks argued that it was ‘”not liable because the vehicle it produced was designed in consultation with the City, was designed after testing the product, and was reasonably safe for its intended use'” (id. at 5-6).”

“By order dated August 12, 2015, the Appellate Division reversed the court’s  decision with respect to these three defendants and granted them summary judgment dismissing the complaint (Leicht v City ofN Y. Dep’t of Sanitation, 131 AD3d 515 [2d Dept. 2015]). In particular, with respect to Mack Trucks, the Appellate Division found that in response to Mack Truck’s primafacie showing, plaintiff had failed to raise a triable issue of fact, namely:

“Although the plaintiff submitted an expert affidavit from an engineer, the expert failed to establish that he was qualified to render an opinion as to the alleged defective design of the Class 8 heavy duty vehicle. An expert is qualified to proffer an opinion if he or she is possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable. Here, the expert failed to present evidence that he had any practical experience with, or personal knowledge of, the vehicle at issue, and the expert also failed to demonstrate such personal knowledge or experience with the design or
manufacture of Class 8 heavy duty vehicles in general. Moreover, the expert’s affidavit, attributing the accident to the defective design of the vehicle, the lack of certain safety devices in the vehicle, and the failure to warn that injury could potentially occur as a result of a head-on collision, was
speculative and conclusory and, therefore, insufficient to raise a triable issue of fact” (id. at 516 [internal citations and quotation marks omitted]).

Accordingly, the Appellate Division dismissed the complaint and cross claims asserted
against Mack Trucks, and dismissed the third-party complaint and all cross claims asserted
against Wausau and Truis (id. at 517).”

On September 14, 2015, plaintiffs moved to reargue the Appellate Division’s decision or, alternatively, for leave to appeal to the Court of Appeals, which was denied by the Appellate Division by order dated December 3, 2015. By letter dated December 12, 2015, defendants memorialized their conversation with plaintiff that the Appellate Division had denied the motion to reargue, that they had advised plaintiff that his final remedy, which they could undertake on his behalf, would be to seek leave from the Court of Appeals to review the Appellate Division’s decision, and that plaintiff had decided not to go forward, which would “effectively end your personal injury case and this. law firm’s representation of you.” The letter was signed by defendant Donnalynn Darling and plaintiff (“I hereby consent and agree to the above”).”

“Relying on Grace v Law (24 NY3d 203 [2014]), defendants also argue that plaintiff failed to sufficiently allege that their purported breach of duty proximately caused plaintiff to sustain actual damages because plaintiff declined to appeal the decision of the Appellate Division to the Court of Appeals, as memorialized in the December 12, 2015 letter signed by defendant Donnalynn Darling and plaintiff (supra). ”

“In Grace, the Court of Appeals addressed the question: “What does a client’s failure to pursue an appeal in an underlying action have on his or her ability to maintain a legal malpractice lawsuit?” (id. at 206). The court adopted the “likely to succeed standard,” namely:
“prior to commencing a legal malpractice action, a party who is
likely to succeed on appeal of the underlying action should be
required to press an appeal. However, ifthe client is not likely
to succeed, he or she may bring a legal malpractice action
without first pursuing an appeal of the underlying action” (id. at
210).

Here, defendants argue that the Appellate Division’s dismissal of plaintiffs claim against Mack Trucks was contrary to the law and the facts of this case, and therefore an appeal would likely have been successful. However, Grace addresses appeals to the Appellate Division, not the Court of Appeals, i.e. the “likely to succeed standard . . . will obviate premature legal malpractice actions by allowing the appellate courts to correct any trial court error and allow attomeys to avoid unnecessary malpractice lawsuits by being given the opportunity to rectify their clients’ unfavorable result” (id. at 210-211).

In any event, defendants have failed to establish that their appeal lies as of right to the Court of Appeals (CPLR 5601) or that the Court of Appeals would have granted plaintiff leave to appeal under CPLR 5602. Even assuming the Court of Appeals would have granted plaintiff leave to appeal the decision and order of the Appellate Division, defendants have failed to demonstrate that the appeal would have been successful, and have therefore failed to show that plaintiff’s decision to forego the appeal is fatal to his claims, as defendants argue.”

In this architectural malpractice case, the Court finds that both malpractice and breach of contract claims remain viable.

Yellin v Zimmerman  2018 NY Slip Op 04098  Decided on June 7, 2018  Appellate Division, First Department is a case in which there are sufficient different claims so that both malpractice and breach of contract (for different claims remain in play.

“The court correctly determined that the first cause of action, although denominated a claim for professional malpractice, also states a cause of action for breach of contract (see generally Foley v D’Agostino, 21 AD2d 60, 65 [1st Dept 1964]).

The court also correctly found that the breach of contract cause of action is not redundant of the malpractice claim

(see Ferro Fabricators, Inc. v 1807-1811 Park Ave. Dev. Corp., 127 AD3d 479, 480 [1st Dept 2015]. The breach of contract claim is premised upon obligations distinct from those that flow from professional standards of architectural practice, and it seeks damages distinct from those sought under the dismissed malpractice claim.

The court also correctly denied summary dismissal of the breach of contract cause of action since the record presents issues of fact as to whether defendant complied with the particular terms of the contract at issue.”