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]). 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).”