Litigants often want to sue a court-appointed official, whether it be a guardian ad litem, an attorney for the child, an accounting expert or another kind of expert practitioner who is inserted into the case.  When those practitioners are attorneys, the question of privity arises; when they are not, the question of whether they are immune from suit needs to be examined. In Saucedo v Pierangelo  2018 NY Slip Op 31750(U)  July 24, 2018  Supreme Court, New York County  Docket Number: 160330/2016 Judge William Franc Perry explains judicial immunity for a “parenting coordinator.”

“Plaintiff commenced this negligence/malpractice action against defendant, Roger Pierangelo, a Nassau County Parent Coordinator, during the pendency ofa custody action in Nassau County Supreme Court. In the custody action, the Nassau County Supreme Court so ordered a stipulation on January JO, 2012 between the child’s parents directing, among other things, that the parties retain a Parent Coordinator, defendant herein.

Defendant now moves for an order pursuant to CPLR §321 l(a)(7), dismissing the complaint on the grounds that it fails to state a cause of action and on the grounds that the Eleventh Amendment bars plaintiff from seeking damages against defendant, since he was, at all times stated within the complaint, acting in his quasi-official capacity as a Court-approved Nassau County Parent  Coordinator, and as such should be afforded judicial immunity from the instant action. Defendant also seeks an order pursuant to CPLR §321 l(a)(J); CPLR §321 J(d); and CPLR §321 l(a)(S), dismissing the action on the grounds that it is time barred by the applicable statute of limitations. ”

“Defendant’s motion to dismiss the complaint must be granted as plaintiffs action is barred by the doctrine of judicial immunity. It is well settled that individuals serving in judicial capacities as well as those who are delegated judicial or “quasi-judicial” functions are_ immune from civil suits based on any actions taken in their official capacities. See Mosher-Simons v. County of Allegany, 99 N.Y.2d 214, 220, 783 N.E.2d 509, 753 N.Y.S.2d 444 (2002). This judicial immunity privilege is regularly applied to expert witnesses when such witnesses are appointed by the court. See Bridget M v. Billick, 36 A.D.3d 489, 490, 826 N.Y.S.2d 568 (!st Dept. 2007) (holding that “a psychiatrist appointed by the court as a neutral forensic evaluator with the consent of the parties’ attorneys and the children’s Law Guardian in an underlying custody proceeding in Family Court has judicial immunity from suit for malpractice regarding the work he performed”); Finkelstein v. Bodek, 131 A.D.2d 337, 516 N.Y.S.2d 464 (!st Dept. 1987) (“Included within those groups of persons who enjoy immunity for statements uttered in a judicial proceeding are court-appointed experts who are ordered to conduct psychiatric examinations.”); Young v. Campbell, 87 A.D.3d 692, 929 N.Y.S.2d 249 (2nd Dept. 2011) (dismissing a negligence/malpractice action against psychologists and social workers who had been appointed to aid courts in divorce and neglect proceedings because “judicial immunity preclude the plaintiff from recovering damages for negligence or malpractice against them”); Colombo v. Schwartz, 15 A.D.3d 522, 789 N.Y.S.2d 744 (2nd Dept. 2005) (finding that
psychiatric expert “has judicial immunity from suit regarding the work he performed as a court appointed psychiatric expert in connection with the plaintiffs spousal support litigation”).

Public policy supports the protection afforded a court-appointed expert based on immunity from suit. In certain matters, a court may rely on the opinions of experts to fully and fairly determine the issues raised in litigation. Judicial immunity protects judges in the performance of their judicial functions so as to allow them to exercise independent judgment without the threat of legal reprisal, which is “critical to our judicial system.” Ashmore v Lewis. 2012 N.Y. LEXJS 337 (Sup Ct. New York County 2012), citing, Mosher-Simons v County of Allegany, 99 NY2d 214, 219, 783 N.E.2d 509, 753 N.Y.S.2d 444 (2002), quoting Tarter v State of New York. 68 NY2d 511, 518, 503 N.E.2d 84, 510 N.Y.S.2d 528 (1986). “A logical extension of this premise is that ‘other neutrally positioned [individuals], regardless of title, who are delegated judicial or quasi-judicial functions should also not be shackled with the fear of civil retribution for their acts.’.” Id. citing, Mosher-Simons, 99 NY2d at 220, quoting Tarter, supra.
Here, because Dr. Pierangelo was a court-approved Parent Coordinator, serving a quasi-judicial
function, and Judge Bennett relied on his testimony and conclusions in rendering her decision, he is entitled to immunity from suit regarding the work he performed as a court approved Parent Coordinator. As such, this action must be dismissed as it is barred by the doctrine of judicial immunity. “

Judiciary Law § 487 is an ancient part of the common law.  It was enacted only 30 years after the Magna Carta.  That’s as old as it gets in Anglo-American law.  It is sparsely uphold and sparingly applied. Jean v. Chinitz 2018 NY Slip Op 05521  Decided on July 26, 2018 Appellate Division, First Department is an example of how courts shy away from its application.

“In its February 16, 2017 order, the motion court correctly dismissed the first cause of action in the original verified complaint to the extent that it alleged a violation of Judiciary Law § 487, because plaintiff failed to plead the essential elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit (see Judiciary Law § 487; Doscher v Manatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]). Accordingly, the portion of the first cause of action in the original verified complaint that alleges a section 487 violation fails to state a cause of action under the statute (see CPLR 3211[a][7]). Additionally, plaintiff’s section 487 cause of action lacks the requisite particularity (see CPLR 3016[b]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]).”

“Plaintiff argues that the amended verified complaint added allegations of intentional deceit on the part of defendants, as manifested in the form of email communications from defendants to plaintiff falsely assuring him that his medical malpractice case was still active when, in fact, it had been dismissed due to defendants’ failure to comply with three discovery orders of the motion court. Plaintiff further alleges that defendants’ deceit injured him by depriving him of the opportunity to take steps to remedy or vacate the dismissal. Plaintiff’s theory presumes that the trial court justice presiding in the medical malpractice action would have vacated the dismissal and reinstated the action had plaintiff moved for such relief. Given the circumstances under which the medical malpractice action was dismissed, however, involving three separate discovery orders for provision of medical authorizations and physician reports, each of which was disregarded by plaintiff’s attorney, it is, at best, purely speculative that the medical malpractice court would have granted such relief. Thus, plaintiff’s claim of injury lacks sufficient support to sustain his claim that defendants’ false email communications were the proximate cause of any injury to him (see Pellegrino v File, 291 AD2d 60, 64 [1st Dept 2002], lv denied 98 NY2d 606 [2002] [dismissing legal malpractice claim where plaintiffs’ allegations did not, on their face, establish that but for their medical malpractice attorney’s conduct in failing to inform them of the dismissal of their medical malpractice action, they would not have sustained the actual ascertainable harm]).

Moreover, “[t]reble damages awarded under Judiciary Law [section] 487 are not designed to compensate a plaintiff for injury to property or pecuniary interests” (Specialized Indus. Svcs. Corp. v Carter, 99 AD3d 692, 693 [2d Dept 2012] [internal quotations marks omitted]). Rather, “they are designed to punish attorneys who violate the statute and to deter them from betraying their special obligation to protect the integrity of the courts and foster their truth-seeking function'” (id., quoting Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Thus, plaintiff’s advancement of a section 487 cause of action in this case is inconsistent with the purpose of the statute, and dismissal of that cause of action was warranted for that additional reason.

The August 31, 2017 order, which denied plaintiff’s motion to reargue defendants’ motion to dismiss the amended complaint, is appealable, because the court entertained the merits of plaintiff’s motion, thereby effectively granting reargument (see Granite State Ins. Co. v Transatlantic Reins. Co., 132 AD3d 479, 484 [1st Dept 2015]). Upon reargument, however, dismissal of the section 487 cause of action was appropriate, as plaintiff proffered nothing on his reargument motion that would alter the motion court’s original conclusion that plaintiff’s section 487 cause of action was insufficiently pled in his amended verified complaint.

Additionally, by its August 31, 2017 order, the motion court properly denied plaintiff’s alternative motion to amend the complaint, as the proposed pleading did nothing more than add detailed factual allegations as to the times and contents of the email communications in question. As already noted, it failed, however, to correct the fundamental flaw in plaintiff’s section 487 cause of action as previously pleaded, namely, that the injury that plaintiff alleged to have [*3]suffered as the result of defendants’ deceit is speculative, rendering that cause of action invalid (see CPLR 3211[a][7]).”

What does one do when there is a potential legal malpractice claim against a former attorney, yet the underlying case has not yet been dismissed, though it is mortally wounded?  Does one wait for the inevitable end of the case and then claim that it is not (now) too late to sue the former attorney?  Not a very good choice. The better choice is to commence the action and then ask that it be tolled or stayed until the underlying action is decided.  Sometimes this will benefit the defendant, sometimes not.

Spitzer v Newman  2018 NY Slip Op 05514  Decided on July 25, 2018  Appellate Division, Second Department is an example of the former solution.

“This action alleging legal malpractice arises out of loans the plaintiff made to several people in 2006. In return for the loans, the borrowers signed notes and confessions of judgment. On April 1, 2007, the borrowers allegedly defaulted on the notes. In July 2013, more than six years after the alleged defaults, the plaintiff commenced an action against the borrowers (hereinafter the underlying action). The underlying action is pending in the Supreme Court, Kings County, under Index No. 13874/13.

After commencing the underlying action, the plaintiff commenced this action in May 2015, alleging legal malpractice against the defendant, the attorney who represented him in the loan transactions at issue in the underlying action. The plaintiff alleges that the defendant failed to timely file the confessions of judgment and also failed to timely commence actions to recover on the notes. The defendant moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint as barred by the statute of limitations or, in the alternative, as premature. The Supreme Court denied the motion, but stayed this action pending resolution of the underlying action. The defendant appeals.”

“Here, the defendant’s motion to dismiss under the statute of limitations was based on the premise that his representation of the plaintiff in connection with underlying loan transactions ended in 2009. Accordingly, he contends, the three-year statute of limitations for legal malpractice expired in 2012, before this action was [*2]commenced in 2015 (see CPLR 214[6]). In opposition, however, the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the statute of limitations as to this action (see Grace v Law, 24 NY3d 203, 212; Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789-790; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086; cf. Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048, 1049-1050). Accordingly, we agree with the Supreme Court’s determination that the complaint was not subject to dismissal pursuant to CPLR 3211(a)(1) and (5) (see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790; Louzoun v Kroll Moss & Kroll, LLP, 113 AD3d 600, 601-602).

Moreover, to the extent that the plaintiff’s action may be premature because, while the underlying action is pending, it cannot be determined whether the defendant’s alleged legal malpractice proximately caused the plaintiff to sustain damages (see generally Shumsky v Eisenstein, 96 NY2d 164, 166; Ackerman v Price Waterhouse, 84 NY2d 535, 542-543; Hershco v Gordon & Gordon, 155 AD3d 1006; Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796), the Supreme Court providently exercised its discretion in staying this action pending the determination of the underlying action (see Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 22:5 at 119-122 [2009 ed]; cf. Flintock Constr. Servs., LLC v Rubin, Fiorella & Friedman LLP, 110 AD3d 426), rather than granting dismissal of the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action.”

Tort or Contract?  Legal malpractice is really neither of the two bi-polar options; it is a melding of both.  Privity of contact is required in a tort setting.  Statutes of limitation for contract are calculated on a tort scale.  The list goes on and on.

Willig v Danzig, Fishman & Decea  2018 NY Slip Op 05384  Decided on July 19,  2018   Appellate Division, Third Department  is an example of how the thought process can become hopelessly intertwined.

“Initially, we agree with defendant that because Supreme Court actually addressed the merits of defendant’s motion, we deem that the court granted reargument and then adhered to its original decision; therefore this appeal is properly before us (see HSBC Mtge. Corp. [USA] v Johnston, 145 AD3d 1240, 1240 [2016]; Matter of Barnes v Venettozzi, 135 AD3d 1250, 1251 [2016]; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1184-1185 [2015], lv denied 25 NY3d 912 [2015]). We recognize that a party may successfully oppose a motion for summary judgment by relying on an unpleaded cause of action if such a cause of action is supported by the party’s submissions (see CPLR 3018 [b]; Balashanskaya v Polymed Community Care Ctr., P.C., 122 AD3d 558, 559 [2014]; Drago v Spadafora, 94 AD3d 1041, 1042 [2012]; Sheils v County of Fulton, 14 AD3d 919, 921 [2005], lv denied 4 NY3d 711 [2005]). The record shows that Sisca signed the retainer agreement with decedent on behalf of defendant, which agreement identified Peter F. Sisca and Thomas Decea, the latter of whom was one of defendant’s named partners, as the attorneys primarily “responsible for this engagement.” While defendant maintains that its contract with Sisca was inherent in its cocounsel relationship under the retainer agreement, the third-party complaint does not include a cause of action for breach of contract, and defendant actually characterizes its breach of fiduciary duty claim against Sisca as a tort. Moreover, the third-party complaint expressly identifies the retainer agreement between decedent and defendant as the “contract.” As such, we find no abuse of discretion in Supreme Court’s determination that a three-year limitations period applies to defendant’s breach of fiduciary duty claim, which seeks purely monetary relief (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009]).”

One unique aspect of matrimonial litigation is that a very large percentage of the cases are settled in court, typically on the day of trial.  This leads to in court settlement allocutions.  Settlement in court with a time deadline looming leads to hastily constructed settlement agreements.  While millions of dollars might be at stake, the hurried quality of negotiations and the scrivener’s errors that creep in cause a large number of post-settlement problems.  Nevertheless, there is very little serious legal malpractice litigation that survives substantive motion practice.  Karakash v Trakas 
2018 NY Slip Op 05292  Decided on July 18, 2018  Appellate Division, Second Department is an illustration.

“The plaintiff retained the defendant to represent him in a divorce action. The action was settled by a written stipulation of settlement.

The plaintiff subsequently commenced this legal malpractice action against the defendant. The complaint alleged, among other things, that the defendant had failed to engage in the necessary due diligence to determine the identity and value of the marital assets involved in the underlying divorce action. The complaint further alleged that the plaintiff had been heavily medicated when he entered into the stipulation of settlement and that he did not understand the terms of the stipulation of settlement when he signed it.

The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint. The defendant argued that certain allegations in the complaint were barred by the doctrine of collateral estoppel and that others were conclusively refuted by documentary evidence, which included the stipulation of settlement in the divorce action and a transcript from proceedings in that action. In the order appealed from, the Supreme Court granted the defendant’s motion to dismiss the [*2]complaint. The plaintiff appeals, and we affirm.”

“Here, in support of his motion to dismiss pursuant to CPLR 3211(a), the defendant submitted a copy of a cross motion made by the plaintiff in the underlying divorce action in which he sought to vacate the stipulation of settlement. The defendant also submitted a copy of the Supreme Court’s order in the divorce action which denied the plaintiff’s cross motion. The defendant’s submissions established that the issue of the plaintiff’s competency, and his contention that the stipulation of settlement was entered into based on his misunderstanding of its terms, were matters that were previously determined in the prior divorce action. Accordingly, we agree with the court’s determination that the doctrine of collateral estoppel precluded the plaintiff from re-litigating these issues (see DeGregorio v Bender, 4 AD3d 384, 385).

We also agree that the remaining allegations underlying the complaint were flatly contradicted by the documentary evidence submitted in connection with the defendant’s motion. “On a motion to dismiss under CPLR 3211, the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference” (Simkin v Blank, 19 NY3d 46, 52; see Leon v Martinez, 84 NY2d 83, 87; Hershco v Gordon & Gordon, 155 AD3d 1007, 1008). At the same time, 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 [internal quotation marks omitted]; see Myers v Schneiderman, 30 NY3d 1, 11; Sweeney v Sweeney, 71 AD3d 989, 991). A motion to dismiss a complaint based on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Stein v Garfield Regency Condominium, 65 AD3d 1126, 1128).

Here, in support of his motion to dismiss, the defendant submitted a copy of the underlying stipulation of settlement in the divorce action, and a transcript from the divorce proceeding on the day the stipulation was signed by the parties. This evidence flatly refuted the plaintiff’s allegation that the defendant had failed to engage in the necessary due diligence to determine the identity and value of the marital assets involved in the underlying divorce action. [*3]Since the remaining allegations in the complaint were flatly refuted by the defendant’s documentary evidence, we agree with the Supreme Court’s determination to grant the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757-758; Weissman v Kessler, 78 AD3d 465, 466; Katebi v Fink, 51 AD3d 424, 425; Pacella v Whiteman Osterman & Hanna, 14 AD3d 545, 545-546; Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321, 321-322).”

Gross v Aronson, Mayefsky & Sloan, LLP    2018 NY Slip Op 31590(U)  July 10, 2018
Supreme Court, New York County  Docket Number: 153274/2017  Judge: Anthony Cannataro demonstrates how hard it is to link up bad outcomes with a cognizable legal malpractice claim.  It’s a matrimonial case in which the father guaranteed legal fee payments for his daughter, involved in a divorce with her husband.  Supreme Court found that the father had an insufficient relationship with the law firm to be able to sue, that many of the claims were too speculative and that in general, there was not a lot left on the bone here.

“Plaintiff Jacqueline Toboroff Gross (Jacqueline) entered into a written retainer agreement with defendant Aronson, Mayefsky & Sloan, LLP (AMS) on September 18, 2013. The retainer provided that AMS would seek a settlement agreement with Jacqueline’s husband, Fred Gross (husband), or if that was not possible, represent Jacqueline in subsequent matrimonial proceedings. Jacqueline’s father, Leonard Toboroff (Leonard), served as guarantor on this agreement. When a settlement was not reached, a divorce action was commenced on November 7, 2013. At that time, Jacqueline and her husband’s marital assets included $3,322,000 held in three investment accounts: Shwab Account ending in 6185; Shwab Account ending in 2091; Capital One Account ending in 8194 (together, the Marital Accounts).”

“On its motion to dismiss, AMS argues that it zealously represented Jacqueline throughout three years of litigation, any delay and/or additional expenses were the result of the husband’s recalcitrance, and the instant action is merely an attempt to avoid payment of legal fees.
Defendant  asserts that as Leonard was a guarantor rather than AMS’ client, he has no privity of
contract, and therefore his malpractice claims should be dismissed. Defendant further argues
that Jacqueline’s malpractice claims should be dismissed as she has failed to allege facts to support them and documentary evidence precludes a finding of negligence, proximate cause, or damages on the part of AMS. Finally, defendant asserts that the Judiciary Law§ 487 claim fails as no extreme or egregious deceit has been alleged, documentary evidence shows that any prolonging of the action was due to the husband’s actions, and any remedy could only be sought in the underlying matrimonial action.

In response, plaintiff claims that AMS ran up a large legal bill while failing and neglecting to protect Jacqueline’s marital assets and equitable distribution rights. Plaintiffs argue that Leonard signed a written guaranty at AMS’ specific request and insistence, creating privity. Plaintiffs assert that defendant’s malpractice was a result of its failure to timely notify financial institutions of the pending matrimonial action and the December TRO which directly caused plaintiff to permanently lose her equitable distributive award. Plaintiffs also argue that the  evidence defendant relied on is legally insufficient to be considered documentary evidence.”

“In this case, Leonard entered into a guarantee agreement with AMS for payment of legal fees associated with Jacqueline’s divorce action and communicated with AMS about Jacqueline’s  ongoing case. No facts are alleged that would tend to show that AMS was aware Leonard was relying on their statements or did so for a specific purpose. However, a third party may maintain a malpractice claim against an attorney without privity if the existence of fraud, collusion, malicious acts or other special circumstances is established (Estate of Schneider v Finmann, 15 NY3d 306, 308-309 [2010]).

Here, the only allegations of fraud, collusion, malicious acts, or other circumstances relate to
plaintiffs Judiciary Law § 487 claim, which, as discussed below, is inapposite here. Thus, the
malpractice claims on Leonard’s behalf must be dismissed.”

A medical malpractice case is almost always a tragedy.  Someone has been unnecessarily hurt, someone has unnecessarily died.  How can it get worse?

Marinelli v Sullivan Papain Block McGrath &  Cannavo, P.C.  2018 NY Slip Op 31610(U)
July 10, 2018  Supreme Court, Kings County  Docket Number: 519958/2016  Judge: Marsha L. Steinhardt is one example of how the situation can get even worse.  A hurt mother, a dead infant and then a question of the results of an autopsy.

“On or about April 13, 2012, the law firm of Sullivan, Papain, Block, McGrath and Cannavo, P .C
(“SPBMC”) was retained by the Marinelli’s to prosecute said claims against the midwife and doctors involved in the delivery of Valentino Nicola. The New York Methodist Hospital was named as an additional defendant to the lawsuit. The action ran the usual course and, ultimately, appeared before the undersigned in the Medical Malpractice Trial Readiness Part. Conferences between the attorneys for plaintiffs and (medical) defendants occurred and the matter was resolved in the total amount of one million, two hundred thousand dollars ($1,200,000.00); one hundred thousand dollars ($100,000.00) thereof being allocated to the wrongful death of the infant. The New York Methodist Hospital did not participate in the settlement. Said matter has been deemed “disposed” by the Court.

On February 17, 2015 an action on behalf of Lily and Vito Marinelli, in their capacity as co-administrators of the Estate of Valentino Nicola Marinelli, and individually, against The New  York Methodist Hospital, sounding in loss of sepulcher, was filed by the above-named defendants in the Office of the Kings County Clerk. ”

“The gravamen of plaintiffs’ complaint is that by failing to pursue the return of deceased infant’s organs for burial, defendant breached a duty to plaintiffs that “constituted a deviation from proper representation,” i.e. legal malpractice. In particular, plaintiffs’ Fourth Cause of Action seeks  monetary damages for breach of contract, alleging that said contract was created at some point prior to plaintiffs’ retention of defendant Jaw firm (April 2012) to pursue their medical malpractice (personal injury/wrongful death) action. That at all times relevant ” … [T]he return of decedent’s organs for burial was of significantly greater importance to the plaintiffs than recovering monetary damages for the personal injuries and wrongful death.” That defendant agreed, in February 2012, to try to effectuate the return of the organs. And that by “doing nothing” until such time as the organs were disposed of by Methodist Hospital, renders it liable for breach of contract. That the consideration given by the Marinelli’s was the retention, by them, of the defendant to pursue their claims. ”

“Assuming, for the purpose of this discussion, that it was the intention of Mr. and Mrs. Marinelli to create a contract with defendant law firm, requiring it to pursue the return of decedent’s organs, it is this Court’s opinion that they did not fulfill their “portion of the deal” for at least two months. Based on the identical affidavits submitted by them in opposition to defendant’s motion, it is undisputed that they did not sign a retainer agreement until April. Thus, there was· no quid pro quo between the parties until, at minimum, the date the retainer agreement was signed. Plaintiffs’ allege that had defendant sought return of the organs in February or March of2012 “the organs could have been recovered and could have received a proper religious burial.” It is this Court’s opinion that no legal relationship existed between the parties in February or March of 2012 and that defendant  considered plaintiffs at that time to be, at most, potential clients to whom no actual duty was owed. At that point, no enforceable contract (written or oral) existed. “