Scott v Leventhal 2024 NY Slip Op 31543(U) April 30, 2024 Supreme Court, New York County Docket Number: Index No. 656211/2017 Judge: Debra A. James reveals a couple of sad truths about legal malpractice litigation. First, there are many twists and turns in the analysis of claims, especially claims that were never filed by the defendant attorney, and how the legal malpractice bar takes on cases and then tries to exit.

“This court previously dismissed plaintiff’s causes of action for breach of contract and breach of fiduciary duty, holding that such causes of action were duplicative of
plaintiff’s legal malpractice cause of action. See NYSCEF Document Number 286. Such holdings are law of the case. See Glynwill Investments, NV v Shearson Lehman Hutton, Inc, 216 AD2d 78, 79 (1 st Dept 1995)

Plaintiff’s recasting the Third Amended Complaint to remove the legal malpractice cause of action and substitute and reassert another breach of contract claim (first cause of action) does not overcome such prior holding with respect to the breach of contract claim, as plaintiff has still not come forward with prima facie proof of any breach of contract by defendants, given, as found earlier, the provision of the retainer agreement dated September 8, 2015, that defendants could withdraw as counsel at any time before any lawsuit was commenced, and, in fact defendants never commenced a lawsuit on behalf of plaintiff’s decedent. Nor does plaintiff’s assertion about defendants’ alleged breach of the implied covenant of good faith and fair dealing rescue her breach of contract cause of action.

With respect to the claim of breach of fiduciary duty (second cause of action), such cause of action sounds in legal malpractice, and such legal practice claim was not previously dismissed by this court. In that regard, legal precedent holds
that

“In the attorney liability context, the breach of
fiduciary duty claim is governed by the same standard
as a legal malpractice claim. Accordingly, to recover
damages against an attorney arising out of the breach
of the attorney’s fiduciary duty, plaintiff must
establish the ‘but for’ element of malpractice.”
Knox v Aronson, Mayefsky & Sloan, LLP, 168 AD3d 70, 75-76 (1 st
Dept 2018) (citations omitted).

Plaintiff comes forward with prima facie evidence that “but for” the failure of defendants to commence a lawsuit within the statute of limitations for battery
(one year after the alleged August 15, 2016 battery) or to inform her of such deadline so that she might retain new counsel to commence a timely action, she would have recovered damages for battery in a lawsuit asserting that City Correction Department employees intentionally assaulted and battered her decedent son, causing injury to his testicles. Specifically, plaintiff submits the records of Bellevue Hospital Center that
states that plaintiff’s decedent son was admitted to the hospital on August 16, 2015, with complaints that [prior to admission/11 AM, the day before] defendants’ correction officers “kicked [him] in the balls 3 times”, [and that] “patient noticed significant swelling (‘swollen like a watermelon’)” and that examination in hospital revealed “trauma to scrotum, now swelling and tenderness”. As such evidence raises issues of
fact with respect to plaintiff’s claim of breach of fiduciary duty/legal malpractice, neither summary judgment dismissing such cause of action against defendants nor partial summary judgment of liability in favor of plaintiff is warranted. See Johnson v Suffolk County Police Department, 245 AD2d 340, 341 (2d Dept 1997) .”

“On May 1, 2023, plaintiff’s attorney Richard Pu, Esq., filed a “Notice of Change/Discharge of Attorney and Notice of Appearance”, asserting that plaintiff would proceed prose. (NYSCEF Document Number 426). This court notes that such Notice
is a nullity as plaintiff herself never consented thereto. Such notice is without force and effect as plaintiff, counsel’s client, did not sign such form or acknowledge her signature
before a notary public, as required pursuant to CPLR §321(b) See Garafola v Mayoka, 151 AD3d 1018 (2d Dept 2017). Instead Such such the form appears to have been filled out by counsel.”