Candero v Del Virginia 2019 NY Slip Op 30436(U) February 26, 2019 Supreme Court, New York County Docket Number: 151983/2018 Judge: Barbara Jaffe discusses the various relationships and potential legal malpractice in a case which traveled from New York to Florida, and in which the lawfirms kept changing shape.
“Relying on the advice of third-party plaintiff Del Virginia, plaintiffs initiated a bankruptcy proceeding in New York to mitigate liability they faced in another action. Del Virginia also advised them that their Florida residence would be exempt from creditors’ claims. Subsequently, the bankruptcy proceeding was transferred to Florida, where a non-party took over for Del Virginia.
Once in Florida, plaintiffs learned that their Florida residence was not exempt from creditors’ claims, and they were forced to enter into a $200,000 settlement, most of which applied to their Florida residence. Plaintiffs assert that but for Del Virginia’s negligence in advising them to initiate the bankruptcy proceeding, they would not have entered into the settlement and paid attorney fees. (NYSCEF 10). ”
“On March 5, 2018, plaintiffs filed a complaint against Del Virginia for legal malpractice in connection with filing for bankruptcy protection in September 2015. (NYSCEF 10). On June 15, 2018, Del Virginia filed its third-party complaint against Lubliner Kish alleging that to the extent Del Virginia is liable to plaintiffs, Lubliner Kish should be held liable to Del Virginia for either the full amount awarded or a portion thereof. Specifically, Del Virginia alleges that Lubliner Kish was negligent in advising plaintiffs with regard to the settlement. (NYSCEF 11 ). On July 9, 2018, Lubliner Kish changed its name to Lubliner Law PLLC. (NYSCEF 26). ”
“For solicitation within New York by a non-domiciliary to constitute a “transaction of business” for the purposes of CPLR 3 02( a )(1 ), it must be accompanied by business transactions occurring in New York or by sufficient permanence and continuity in New York. ( O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 201 [I8t Dept 2003]). Although the screenshots from Lubliner Kish’ s website reflect a targeted solicitation of legal services to New York residents, and its social media posts reflect that it advertises that its staff includes attorneys admitted in New York and that it maintains an office in New York, the screenshots are undated and disputed. Thus, they are not dispositive as to whether Lubliner Kish actually has a tangible presence in New York. (See Venegas v Capric Clinic, 147 AD3d 457, 458 [!81 Dept 2017] [contradicted website information alone is insufficient to establish jurisdiction]). The affirmations of Richard Lubliner and Matthew Kish raise an issue of fact and entitle Del Virginia to limited discovery on the issue. (Id. [contradictions between defendant’s statements and those on his website regarding business transactions in New York warranted discovery]). Thus, although Del Virginia offers no definitive evidence that Lubliner Kish maintains an office in New York or has transacted business in New York with the requisite permanence and continuity he nonetheless advances a “sufficient start” to show that there may be personal jurisdiction over defendant. ”