Potential legal malpractice clients often wonder whether it is better to try to fix the problem or sue the attorney.  The answer to this question is the highest form of speculation.  Its far more difficult to predict the future events in litigation than to pick a winner from a 9 horse field.

David v Hack  2012 NY Slip Op 05479   Decided on July 10, 2012   Appellate Division, First Department  is an example.  Here, plaintiff filed for disability insurance payments, was denied, and then changed attorneys.  The second set of attorneys were partially successful.  They won the battle, and then lost the war. Their partial success doomed the later legal malpractice case. However, it is not the second attorneys who were the target.
 

"By written agreement dated April 28, 2009, plaintiff, a commodities trader with MBF Clearing Corporation, retained defendant Quadrino & Schwartz, P.C., on an hourly fee basis, "to represent him in connection with the filing of long term disability claims under two Guardian group policies." At that time, the "look back period" for determining an employee’s "Insured Earnings," used to calculate the amount of benefits to which the employee was entitled, was one year from the date of disability. As of May 1, 2009, the look back period was increased to three years.

In support of his malpractice claim, plaintiff alleges that defendants, without his knowledge, submitted a claim form that incorrectly stated that the date of his disability was "4/9/09," which was the day he stopped trading, not the day he was determined to be disabled; the latter he alleges was May 13, 2009. Plaintiff contends that as a result of this error, Guardian applied the one-year look back period, which led to the denial of his claim on April 14, 2010, because his 2008 income tax return showed a loss. Although plaintiff, on a contingency fee basis, retained new counsel who successfully appealed the denial, he seeks to recover from defendants the additional costs, expenses and attorneys’ fees he incurred in prosecuting that appeal.

Supreme Court correctly determined that issues of fact exist as to whether the release signed by plaintiff on March 31, 2010, in connection with the settlement of his fee dispute with defendants, was obtained in violation of the Rules of Professional Conduct (22 NYCRR § 1200.0), rule 1.8(h)(2)(see Swift v Ki Young Choe, 242 AD2d 188, 192 [1998]; see also Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]). However, the malpractice claim must nevertheless be dismissed because the evidentiary materials submitted by the parties conclusively establish that defendants breached no duty to plaintiff, and that no alleged damages were caused by any act of defendants (see O’Callaghan v Brunelle, 84 AD3d 581 [2011], lv [*2]denied 18 NY3d 804 [2012]; Between The Bread Realty Corp. v Salans Hertzfeld Heilbronn Christy & Viener, 290 AD2d 380, 381 [2002], lv denied 98 NY2d 603 [2002]).

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence relied on by the defendant must "conclusively establish[ ] a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]).
On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (id. at 87-88). However, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (Maas v Cornell Univ., 94 NY2d 87, 91 [1999]).

At the heart of plaintiff’s malpractice claim is his assertion that defendants could have obtained the date of his disability from his treating physician, Dr. Schottenstein, at any time after May 13, 2009, but refused or neglected to do so. However, the record demonstrates that when plaintiff’s new counsel argued in his June 14, 2010 appeal letter to Guardian that the claim turned on the date it was determined that plaintiff was disabled, not on the date he ceased trading, he relied on the "June 10, 2010 Medical Record of Dr. Douglas Schottenstein, NYSpinemedicine, which for the first time gives [plaintiff] a date of disability on May 13, 2010" (emphasis added). Defendants ceased acting as plaintiff’s attorney on December 23, 2009, well before the June 10, 2010 record was available.

The documentary evidence further demonstrates that defendants’ submissions to Guardian were based on the information available to them. Defendants were retained to file a disability claim on April 28, 2009, which predates the date on which plaintiff claims it was determined that he was disabled. Plaintiff’s claim form, dated September 2, 2009, states that April 9, 2009 was the date that he became unable to work because of illness or injury. While plaintiff asserts that he signed the claim form in blank, the e-mail he relies on shows that he was provided with a draft claim form, asked to review it and complete the unanswered questions, and told that the information would then be typed into the form he signed. Further, on September 9, 2009, plaintiff sent defendants an e-mail stating that "[m]y last trading day was [A]pril 8th." Defendants relied on that date to complete the disability claim form, which they submitted to Guardian that day.

Defendants also submitted to Guardian Dr. Afshin Razi’s physician’s statement, dated August 27, 2009, which states that Dr. Razi first evaluated plaintiff for his back condition on May 27, 2008, and last treated him on March 19, 2009, and that plaintiff had "[m]oderate limitations of functional capacity; capable of clerical/administrative (sedentary) activity (60-70%)" (footnote omitted). Dr. Razi added that plaintiff "cannot carry heavy bag or be on the trading floor where he may be jostled[,] which may injure his back."

Consistent with the foregoing, the employer section of plaintiff’s disability claim, dated September 25, 2009, states that the date the disability began was "unknown," that the last date plaintiff worked on the "floor" was April 7, 2009, and that the reason for leaving work was a disability. Defendants also provided Guardian with Dr. Razi’s and Dr. Schottenstein’s medical records, the receipt of which Guardian confirmed in a letter dated October 20, 2009, in which Guardian advised defendants that it had requested additional information directly from the doctors. "