1.Moran v. McCarthy, Safrath & Carbone, P.C., 2005-05801, 2005-05806, (Index No. 17101/03) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , Summary judgment for defendant attorney on the “but for” axis. Plaintiff unable to defeat SJ motion.
2.Cruciata v. Mainiero, Index 106151/04 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT. Legal malpractice case dismissed, and AD reverses in this marital legal malpractice case. Even in the face of extensive on the record marital settlement, financials were overlooked, and the legal malpractice complaint reinstated.
3.Ginther v. Scinta, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT. No attorney-client relationship with the client as trustee of four trusts he had established for his children or with the trusts.”
4.Shanley v. Welch, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT , “the actions of the parties appeared to establish an attorney-client relationship as to the drafting, preparation, and execution of the agreement. Summary judgment was barred by issues of fact as to the existence of an attorney-client relationship and the extent of such a relationship, if it existed.”
5.Leder v. Spiegel, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , ” the matter at bar, appellant Marshall Siegel’s malpractice claim rests on the unsupported, conclusory assertion that he would have accepted the settlement offer but for petitioner’s erroneous advice concerning his prospect of success at trial. There is no support for his claim in the voluminous record this matter has generated, nor is there anything in the record, such as an affidavit from his co-objectant brother Michael, to refute petitioner’s claim that she actively encouraged the brothers to accept the settlement, but that appellant alone had refused over Michael’s protestations. Moreover, as the Surrogate notes in her decision, the settlement negotiations occurred “on many occasions” and were ongoing up to the morning of trial. Finally, in an affirmation signed on October 11, 1999, appellant stated that the settlement offer he now claims petitioner counseled him to refuse, remained open, but that he and his brother were refusing to accept [**5] it (again, without any substantiation from the brother) without verification of the value of the estate. There is, however, no indication that such an accounting has ever been provided, rendering appellant’s claim that he refused the settlement strictly on petitioner’s advice to be suspect, at best.”
6.Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 2005-11112, (Index No. 7300/04) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , ” car struck one client, but there was conflicting testimony as to whether he was in an intersection’s crosswalk at the time. An attorney from the firm requested and received a jury charge on N.Y. Veh. & Traf. Law § 1151, rather than the statutory section that applied to the facts. A jury found awarded the clients $127,500, a second trial was held, and liability was found, but before the verdict was rendered, the parties settled the case for $750,000. In the instant action, the clients argued that but for the firm’s error, they would have received higher damages in the first case and that they were entitled to interest on the higher amount. On review, the appellate court concluded that the clients had failed to prove that they were actually damaged by any malpractice because they received a higher sum in the settlement than they would have won in the first case, even if liability had been clear. Because the object of compensatory damages in a malpractice action was to make a client whole, no damages were due for any malpractice because the alleged malpractice did not cause the clients to lose the value of their underlying claim. They also had no right to consequential damages.”
7. Academic Health Professionals Ins. Assn. v. Lester, 8668, Index 110354/04 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , “The attorney’s law firm served as outside counsel to the insurer in a medical malpractice action against one of its insureds. After the firm failed to appear on the scheduled trial date, a default judgment was entered against the insured. The insurer commenced a legal malpractice action against the firm, the attorney, and his two partners. The attorney filed for bankruptcy, the claims against him were severed, and the legal malpractice action proceeded to inquest on damages against the other the attorneys. When the bankruptcy petition was dismissed, the insurer sued the attorney. The appellate court found, inter alia, that the attorney could not relitigate his liability for legal malpractice where the prior legal malpractice action, involving the identical issues and parties, resulted in an award of summary judgment against himself, his former law firm, and former partners, the default on the summary judgment motion notwithstanding. Since the partners were in privity with one another for purposes of collateral estoppel, the awards in the prior legal malpractice action, both for summary judgment and for damages, were applicable against the attorney.”
8. Antokol & Coffin v. Myers, 97525 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT ,
CORE TERMS: counterclaim, summary judgment, malpractice, oil, legal malpractice, cross motion, valuation, divorce, sheet, breach of contract .” The client retained the law firm to represent her in connection with a divorce. She refused to continue paying the law firm’s fee. The law firm sued for breach of contract. The appellate court held that failing to produce an affidavit from a witness with personal knowledge or proof of actual and ascertainable damages, the client did not raise triable issues of fact with respect to the issue of legal malpractice. The trial court’s isolated statement, “I think performance is relevant,” without more, was not sufficient to remove the inference that the jury was unduly influenced by the references to the counterclaim being dismissed. Indeed, the lack of explicit curative instructions, combined with the trial court’s inadequate final charge to the jury, created a perceptible basis for confusion on the part of the jury. The trial court erred in failing to apprise the jury that it could consider whether the law firm adequately performed the contracted services, not simply whether it completed them. It appeared that the jury could not have clearly understood that it could take the quality of the law firm’s services into account in determining whether such services had been “performed.”
9. Lacher v. Engel, 8004, Index 109525/04 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , “Plaintiff’s former client hired defendant after plaintiff withdrew as counsel in a dispute, despite an ongoing arbitration case. The client, through defendant, filed suit against plaintiff, alleging legal malpractice, breach of fiduciary duty, and other claims. Plaintiff then filed the instant action against defendant, alleging that the client’s suit was a sham and was filed to protect defendant’s defamatory statements. On review, however, the appellate ruled that the client’s suit was not a sham and that defendant’s statements were absolutely privileged, as they were pertinent to the client’s suit against plaintiff. For example, defendant’s statement that plaintiff had defrauded the client was pertinent to the client’s allegation that plaintiff was guilty of fraud. That defendant called plaintiff a thief was related to the client’s claim of fraudulent billing. The court also explained that the common law privilege, which protected statements made in the litigation, also protected any made in the arbitration. Additionally, § 74 protected the statements in the newspaper, which were about the litigation, because they were a fair and true report and they were substantially accurate.”
10. Billis v. Dinkes & Schwitzer, Index 102605/03 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , “The complaint, alleging legal malpractice in the handling of an action to recover for injuries allegedly sustained in an automobile accident, was properly dismissed. In light of plaintiff’s admissions and the testimony of his treating physician to the effect that he had not sustained serious [**2] injuries in the subject accident”
11. LaRusso v. Katz, Index 16712/04 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , “The client and her husband had an accident in a loaner car and filed a tort case against the other driver. The client claimed that the lawyers should have disclosed the risks that their dual representation of both of them posed in the resulting tort case and that they should have sued the dealership that loaned the car, based on vicarious liability, as the husband drove the loaner. On review, the appellate court ruled that the lawyer’s affirmation in lieu of an affidavit, while proper under N.Y. C.P.L.R. 2106 in some cases, was improper in the instant case as he was a named defendant. Further, the lawyers should not have represented both persons, in view of the prohibition in N.Y. Code Prof. Resp. DR 5-105(A), and despite the provisions of N.Y. Code Prof. Resp. DR 5-105(C); due to the potential for irreconcilable conflict, dual representation was rarely sanctioned even after full disclosure. Moreover, the client’s interests and those of her husband were not the same; he was driving, she was his passenger, she did not see what happened, and her injuries were greater than his. From several of their actions, it was clear that the lawyers had also recognized the potential problems.”
12. McClellan v. Jacoby & Meyers, L.L.P., Index 8321/02 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , ” Plaintiff failed to demonstrate, in this legal malpractice action, that he would have been successful in the underlying negligence action but for the alleged negligence of his attorney. In particular, he failed to raise a question of fact as to whether his injury was due to a defective condition, and whether the defendant in the underlying action had actual or constructive notice of such condition.”
13. Kerbein v. Hutchison, 99425 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT , “The attorneys represented the client on a workers’ compensation claim. She accepted a settlement offer with the express stipulation that the attorneys would have 10 days to investigate the settlement’s taxable status, during which time she could withdraw from the agreement. She alleged that the attorneys advised her during the 10-day period that the settlement was not taxable. After the settlement became final, she discovered that their advice was incorrect. The client did not contest the trial court’s dismissal of her fraud and breach of contract claims on the ground that they did not state independent causes of action. The appellate court reversed the dismissal of her malpractice claim. The cause of action did not accrue, as the attorneys claimed, on either the date of the settlement hearing or the date when the incorrect advice was given. The client suffered an actionable injury on the date when her option to withdraw from the settlement agreement ended, when all the facts necessary to her cause of action had occurred. Her cause of action accrued on that date, and her complaint, filed within three years of that date, was therefore timely.”
14. Fredriksen v. Fredriksen, 2005-01111, 2005-01113, (Index No. 1244/04) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , “The second firm assisted plaintiff’s mother with setting up a trust which transferred the mother’s house to defendant, plaintiff’s sister, individually and not as trustee. Plaintiff was also a beneficiary of the trust. The sister hired the first firm to represent her in selling the house. After the closing, the sister allegedly kept the sale proceeds. The appeals court found that the amended complaint failed to plead specific facts from which the existence of an attorney-client relationship, privity, or a relationship that otherwise closely resembled privity between plaintiff and either firm could be inferred. It did not contain specific allegations that would place plaintiff within the ambit of the exception to the privity requirement (N.Y. C.P.L.R. 3016(b)). The amended complaint failed to plead evidentiary facts showing that either firm was a participant in a common scheme or plan to defraud plaintiff, or otherwise aided and abetted the sister in the commission of fraud. Thus, insofar as asserted against the firms, the amended complaint failed to allege elements essential to a claim of fraud, namely, misrepresentation of a material fact, falsity, scienter and deception.”
15. AmBase Corp. v. Davis Polk & Wardwell, 8662-8663, Index 107762/04 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT ” Judgment, Supreme Court, New York County (Louis B. York, J.), entered March 30, 2005, dismissing plaintiff’s amended complaint and awarding defendants the principal sum of $ 1,424,104 in outstanding legal fees, unanimously affirmed, with costs. Defendants successfully represented plaintiff in a tax dispute with the Internal Revenue Service This legal malpractice claim, premised on defendants’ failure to exercise due diligence and pursue a different defense that would have resulted in the underlying tax dispute being resolved in a more expeditious fashion, was properly dismissed as speculative. Defendants achieved success for plaintiff, who should “not be heard to complain that th[e] result was not achieved in the precise manner [plaintiff] would have preferred” The claim for breach of fiduciary duty was also properly dismissed as essentially based on the same facts and seeking the same relief as the legal malpractice cause of action
16. Carlos v. Lovett & Gould 2004-10332, (Index No. 1104/03) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , “No attorney-client relationship existed between them and the plaintiff with respect to a state court breach of contract action against the Town until July 2000, after the relevant statute of limitations had expired ”
17. Melendez v. Bernstein, 2005-06527, (Index No. 24157/04) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT. “The three-year malpractice statute of limitations applies “regardless of whether the underlying theory is based in contract or tort” (CPLR 214). Equally without merit is the plaintiff’s contention that the legal malpractice statute of limitations was tolled in this case by the continuous representation doctrine. The record does not disclose that the parties understood that the plaintiff needed further legal assistance relative to the purchase of her home beyond March 9, 2000″
18. Gelfand v. Oliver, 2005-01435, (Index No. 11998/03) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT. “The defendant formerly represented the plaintiff in connection with the sale of certain residential property in Head of the Harbor. In his complaint, the plaintiff alleged that the defendant, inter alia, mishandled the eviction of tenants by, among other things, commencing a landlord-tenant proceeding in the wrong court, thereby unnecessarily delaying the closing of the transaction and resulting in increased costs and expenses. Taking these allegations as true and according the plaintiff the benefit of every possible favorable inference, we find that they state a legally cognizable cause of action to recover damages for legal malpractice
Under the circumstances, the defendant’s contention that any delay caused by his actions was de minimis cannot be resolved on a motion pursuant to CPLR 3211(a)(7), and must await further development of the record.
19. Olaiya v. Golden, 27519/01 , SUPREME COURT OF NEW YORK, KINGS COUNTY. ” Pro se plaintiff sued defendant Michael Golden, Esq., who represented him in an employment disciplinary action by the New York City Department of Juvenile Justice, for $ 300,000,000 in alleged damages caused by defendant’s legal malpractice. Defendant moves, pursuant to CPLR Rule 3212, for summary judgment and dismissal of the instant action.
Plaintiff blames his former employer, former coworkers and Mr. Golden for his termination and resulting damages. Unfortunately for plaintiff, as will be discussed, he has no one to blame but himself. Summary judgment is granted to defendant.”
20. Jun Xiao v. Jianming Shen, No. 570077/06 , SUPREME COURT OF NEW YORK, APPELLATE TERM, FIRST DEPARTMENT. “The dismissal after trial of this small claims action seeking damages for legal malpractice achieves substantial justice consistent with substantive law principles where plaintiff failed to establish the existence of an attorney-client relationship with defendant”
21. Konvalin v. Tan Hai Ying, 14738/98 , SUPREME COURT OF NEW YORK, QUEENS COUNTY , 2006 NY Slip Op 26283; “In 1998, the plaintiff retained counsel to represent him with regard to an automobile accident that occurred in 1997. Six years after defense counsel failed to appear for the jury trial, a judgment was entered against the insured. Because the insurer refused to pay anything toward the judgment, the plaintiff’s counsel brought an action against the insurer for bad faith because the insured could not be located. The insurer only stated that the insured was in “China.” The court would not lend its imprimatur to the wild goose chase urged by the insurer’s counsel and its law firm in the underlying dispute. A receiver had to be appointed for the insured so that he or she could proceed against the insurer and its in-house counsel. Because the attorney requested by the insurer was not on the N.Y. Comp. Codes R. & Regs. tit. 22, pt. 36 list, and because geographical proximity to the office of the plaintiff’s counsel was not a criterion for selection under N.Y. C.P.L.R. 5228(a), the court appointed a different attorney to act as receiver for the insured.”