Traditionally, plaintiffs plead a triumvirate of claims against attorneys consisting of legal malpractice, breach of contract and breach of fiduciary duty.  Additional claims are rarely seen.  In Ramirez v Donado Law Firm, P.C.  2019 NY Slip Op 01244  Decided on February 20, 2019
the Appellate Division, Second Department goes through a long list of claims and gives the elements.  The entire decision is valuable.

“Real Property Law § 265-b governs the conduct of distressed property consultants. “Distressed property consultant” or “consultant” is defined as “an individual or a corporation, partnership, limited liability company or other business entity that, directly or indirectly, solicits or undertakes employment to provide consulting services to a homeowner for compensation or promise of compensation with respect to a distressed home loan or a potential loss of the home for nonpayment of taxes” (Real Property Law § 265-b[1][e]). A consultant does not include, inter alia, “an attorney admitted to practice in the state of New York when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice” (Real Property Law § 265-b(1)(e)[i]). Here, contrary to the defendants’ contention, the plaintiffs adequately alleged facts from which it could be inferred that the defendants did not provide consulting services to the plaintiffs in the course of Donado Law’s regular legal practice (see De Guaman v American Hope Group, 163 AD3d 915). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Real Property Law § 265-b insofar as asserted against them.

General Business Law § 349(a) prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” A cause of action to recover damages for a violation of General Business Law § 349 must “identify consumer-oriented misconduct which is deceptive and materially misleading to a reasonable consumer, and which causes actual damages” (Wilner v Allstate Ins. Co., 71 AD3d 155, 161-162; see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25). Private contract disputes, unique to the parties, do not fall within the ambit of General Business Law § 349 (see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25; De Guaman v American Hope Group, 163 AD3d at 917). Here, contrary to the defendants’ contention, “in contrast to a private contract dispute, the practices alleged by the plaintiffs were not unique to these parties and involved an extensive marketing scheme that had a broader impact on consumers at large” (De Guaman v American Hope Group, 163 AD3d at 917 [citations and internal quotation marks omitted]; see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 344; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of General Business Law § 349 insofar as asserted against them.

“Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]). However, the requirements of CPLR 3016(b) ” may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct'” (Sargiss v Magarelli, 12 NY3d 527, 531, quoting Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492). Here, contrary to the defendants’ contention, the complaint pleaded causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation with sufficient particularity (see CPLR 3016; Sargiss v Magarelli, 12 NY3d at 531; Pludeman v Northern Leasing Sys., Inc., 10 NY3d at 492; De Guaman v American Hope Group, 163 AD3d at 917). Moreover, contrary to the defendants’ contention, the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation were not duplicative of the breach of contract cause of action (see De Guaman v American Hope Group, 163 AD3d at 917; see also Neckles Bldrs., Inc. v Turner, 117 AD3d 923, 925). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation insofar as asserted against them.

“To recover damages for breach of contract, plaintiffs must demonstrate the existence of a contract, [their] performance pursuant to that contract, the defendants’ breach of their obligations pursuant to the contract, and damages resulting from that breach'” (De Guaman v American Hope Group, 163 AD3d at 917, quoting Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127). Here, contrary to the defendants’ contention, the plaintiffs sufficiently pleaded a cause of action alleging breach of contract (see De Guaman v American Hope [*3]Group, 163 AD3d at 917). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in breach of contract insofar as asserted against them.

To recover damages for legal malpractice, 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 and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Dombrowski v Bulson, 19 NY3d 347, 350 [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Dempster v Liotti, 86 AD3d 169, 176). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d 683, 684). Here, contrary to the defendants’ contention, the complaint sufficiently pleaded a cause of action to recover damages for legal malpractice (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d at 830; Hershco v Gordon & Gordon, 155 AD3d 1007, 1009). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in legal malpractice insofar as asserted against them.”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

 

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.