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. “

Plaintiff hired attorney to represent him in a mediation with Morgan Stanley in 2014.  Plaintiff settled on a $ 267K package, and then several years later sued his attorney.  Reches v Sack & Sack, LLP  2018 NY Slip Op 31643(U)  June 28, 2018  Supreme Court, Kings County  Docket Number: 511057/2017  Judge: Dawn M. Jimenez-Salta is the story of how that claim got derailed, and then buried.

“This action originated from Defendant Sack’s representation of PlaintiffReches in an underlying
mediation with Plaintiffs employer, Morgan Stanley (“Morgan Stanley”) on June 18, 2014. Pursuant to that process, Plaintiff accepted a $267,000.00 (Two Hundred Sixty Seven Thousand Dollars) settlement offer in connection with an employment discrimination complaint which he filed against his former employer, Morgan Stanley. Both Plaintiff and a representative from Morgan Stanley executed the Settlement Agreement (“Settlement”) and General Release on June 30, 2014 [Plaintiff 1; Plaintiff 2 Memorandum of Law, Exh. A; Defendant 3,, Exhs A-C; Plaintiff 4, Exhs. A-CJ. ·

Because he was unhappy with the amount of the Settlement which he accepted, Plaintiff filed a
Complaint, dated June 5, 2017 against Defendant Sacks, approximately three years later. Plaintiff alleged eleven (11) causes of action against Defendant Sacks. Ten (10) causes of action were for legal malpractice and one cause of action was for intentional infliction of emotional distress.’ Defendant moved on August 4, 2017 to dismiss Plaintiffs Complaint in its entirety (the “Motion to Dismiss”) pursuant to CPLR 321 l(a)(7) for failure to state a claim as well as pursuant to CPLR 321 l(a)(J)
because the claim was barred by documentary evidence’.”

“When this Court heard oral argument from the parties on the Motion to Dismiss on November 15, 2017, it reserved its decision. In an Order (the “Dismissal Order”), dated February 23, 2018, this Court granted the Motion to Dismiss, having determined that Plaintiffs Complaint “fails to adequately plead specific factual allegations showing that, but for Defendant’s alleged negligence, Plaintiff would have obtained a more favorable outcome … in the mediation.” This Court found that Plaintiffs allegations that he could have obtained a more favorable outcome in the mediation were “conclusory and speculative”. This Court noted that “Piaintiff was not under economic duress,” that the “mediation was voluntary,” and “that he could have stopped at any time.” [Plaintiff l; Plaintiff2 Memorandum of Law, Exh. A; Defendant 3,, Exhs A-C; Plaintiff 4, Exhs. A-C]. ”

“Due to Plaintiffs failure to show that this Court overlooked or misapprehended any matters of fact or law or for some reason mistakenly arrived at its earlier decision, this.Court denies  plaintiff Reches’ motion to reargue Defendant’s motion to dismiss pursuant to CPLR 3211 (a)(7) for failure to state a claim and CPLR 321 J(a)(J) because the claim is barred by documentary evidence. Plaintiffs motion is an attempt to reargue his prior positions which were duly considered and previously rejected by this Court. This Court carefully considered Plaintiffs identical arguments before it issued its comprehensive Dismissal Order. Because it addressed all of Plaintiffs unchanged concerns, Plaintiffs arguments remain unavailing. Therefore, this Court adheres to its original rulings in its Decision/Order, dated February 23, 2018. See Diorio v. City of New York, supra: Ebasco  Construction, Inc., v. AMS Construction Co., Inc., supra; Foley v. Roche, supra: Giovannioel/o
v. Carolina Wholesale Office Mach., Co., supra [Plaintiff I; Plaintiff2 Memorandum of Law, Exh. A;
Defendant 3,, Exhs A-C; Plaintiff 4, Exhs. A-CJ. ”

Some of the most unusual and unstable law arises from chance litigation between pro-se plaintiffs and professional defendants. Borges v Placeres  2018 NY Slip Op 28224  Decided on June 27, 2018  Civil Court Of The City Of New York, New York County  Ramseur, J. is a wonderful example.  Immigration plaintiff sues immigration attorney for his unnecessary deportation and wins a $ 900,000 verdict for “emotional pain and suffering” which is completely wrong in a legal malpractice setting.  There is plenty of Court of Appeals and Appellate Division law which completely outlaws such an award.  Nevertheless, the attorney-defendant failed to make these arguments when he had the chance.  So, the case followed into Bankruptcy Court and from there into utter confusion.

“Plaintiff/judgment creditor Jose Borges retained Defendant/judgment debtor Alfred Placeres, an immigration attorney, for immigration proceedings. During the proceedings, Defendant instructed Plaintiff not to appear in immigration court on a specific date. Upon Plaintiff’s absence, an immigration court judge issued an in absentia deportation order which resulted in Plaintiff’s 14-month detention. Plaintiff consequently filed a legal malpractice action arguing, in sum and substance, that Defendant’s instruction was negligent (Borges v Placeres, 43 Misc 3d 61, 63 [App Term 2014], affd, 123 AD3d 611 [1st Dept 2014]). The jury found unanimously in favor of Plaintiff that Defendant committed malpractice and a judgment was entered of $1,250,206.37—-including, as relevant here, damages for pain and suffering in the amount of $900,000.00.

Defendant subsequently engaged in several unsuccessful appeals, arguing, in relevant part, for vacatur of the verdict because damages for pain and suffering are unrecoverable for legal malpractice (43 Misc 3d 61 [App Term 1st Dept 2014]; 123 AD3d 611 [1st Dept 2014]; 2015 NY Slip Op 77781[U] [1st Dept 2015]). The Appellate Term held that

With respect to damages, it need be emphasized that our review of the jury’s award may not be based on the recent decisional law relied upon by defendant—precedent holding that an award of nonpecuniary damages is generally unavailable to a plaintiff in an action for attorney malpractice. Notably, defendant did not raise an objection to the jury charge as given, instructing the jury that they could award plaintiff damages for pain and suffering, or to the corresponding question on the verdict sheet, and, indeed, defendant raised no objection at trial to the introduction of evidence regarding the mental and emotional disturbance caused by plaintiff’s detention (43 Misc 3d at 64).

After Defendant exhausted his appeals, on January 22, 2015, Plaintiff served upon Defendant an information subpoena pursuant to CPLR § 5224(a)(3) (Pl Exh A [the “Subpoena”]). Plaintiff contends that Defendant never responded to the Subpoena and, in any [*2]event, should update any response to include new assets because “Defendant’s lot in life seems to have improved” (Pl Reply at 2).^[FN1]Defendant responds that he has provided full disclosure but, in any event, is willing to supplement that disclosure (Def Aff ¶¶ 11-12, citing Def Exh F).^[FN2] “

“The parties agree that a cause of action for legal malpractice is generally assignable (NY [*5]Jur 2d Assignments § 16; Chang v Chang, 226 AD2d 316 [1st Dept 1996]; Greevy by Greevy v Becker, Isserlis, Sullivan & Kurtz, 240 AD2d 539, 541 [2d Dept 1997]; Molina v Faust Goetz Schenker & Blee, LLP, 230 F Supp 3d 279, 285 [SDNY 2017]; General Obligations Law § 13-101; Def Memo of Law at 12). Where the parties disagree, however, is whether this Court can compel the assignment of a prospective cause of action to satisfy a debt.

Defendant fails to provide a credible argument that a debtor cannot be compelled to assign a prospective cause of action to satisfy a debt (see Def Memo of Law at 11). A money judgment may be enforced against any debt, including “a cause of action which could be assigned or transferred accruing within or without the state” (CPLR 5225[a]; ABKCO Indus., Inc. v Apple Films, Inc., 39 NY2d 670, 673 [1976]). CPLR 5225(b) provides that

Upon motion of the judgment creditor, upon notice to the judgment debtor, where it is shown that the judgment debtor is in possession or custody of money or other personal property in which he has an interest, the court shall order that the judgment debtor pay the money, or so much of it as is sufficient to satisfy the judgment, to the judgment creditor and, if the amount to be so paid is insufficient to satisfy the judgment, to deliver any other personal property, or so much of it as is of sufficient value to satisfy the judgment, to a designated sheriff (emphasis added).

CPLR § 5201(b) further defines the property subject to turnover: “a money judgment may be enforced against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested, unless it is exempt from application to the satisfaction of the judgment” (emphasis added). By its explicit terms, and reading CPLR 5225(b) and CPLR § 5201(b) together, CPLR § 5201(b) includes future and/or unvested rights, including, as relevant here, a legal malpractice claim which has not yet been filed, and which Defendant has made clear he has no intention to file.

The preceding statutes and case law codify the principle that compels “the ultimate payment of a debt by one who in equity and good conscience, should pay it” (see CPLR § 5240 [“The court may at any time, on its own initiative or the motion of any interested person, and upon such notice as it may require, make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure”]; Natl. Sur. Co. v Natl. City Bank of Brooklyn, 184 AD 771, 773—74 [1st Dept 1918] [citing the principle that “compel[s] the creditor to assign a cause of action which he had against a third person to sureties who have paid the debt of their principal”]; see also De Long Corp. v Lucas, 176 F Supp 104, 127 [SDNY 1959], affd, 278 F2d 804 [2d Cir 1960] [finding that an assignment of future improvements to a patent which the inventor may thereafter produce is effective so long as the language of the contract [is] very plain and evidence unmistakably that such an agreement was in the mind of the inventor”]; see also Cohen v Hughes, 38 NYS2d 874, 877 [Sup Ct NY County 1942] [denying motion to dismiss cause of action seeking to compel assignment of interest in limited partnership], affd, 266 AD 658 [1st Dept 1943], affd, 291 NY 698 [1943]). Several sister jurisdictions have also recognized such a remedy (see, e.g., Cahaly v Benistar Prop. Exch. Tr. Co., Inc., 68 Mass App Ct 668, 678—79, 864 NE2d 548, 558—59 [Mass App Ct 2007], affd, 451 Mass 343, 885 NE2d 800 [2008] [affirming trial judge’s assignment of cause of action to judgment creditor to satisfy judgment]; Renger Mem. Hosp. v State, 674 SW2d 828, 830 [Tex App 1984]).

This conclusion is further buttressed by CPLR 5227, which provides for a special proceeding for a determination of whether or not a prospective garnishee is indebted to the [*6]judgment debtor, and seeks to effectuate Article 52 enforcement, which “should be liberally construed to help reach any property interest that CPLR 5201 has declared to be available” (Reilly, CPLR Commentary C5227:1). A CPLR 5227 proceeding will

be akin to a direct action by the judgment debtor against the garnishee, but with the judgment creditor standing in the judgment debtor’s position and prosecuting the judgment debtor’s claim. If the proceeding adjudicates that the garnishee does owe a debt to the judgment debtor, the court will render a judgment to that effect in the special proceeding and further direct that the garnishee pay the debt—for a “debt” is what the cause of action now becomes under the adjudication—to the judgment creditor. Or the court may simply render a judgment in favor of the judgment creditor directly against the garnishee (Reilly, CPLR Commentary, C5201:2; see also C5227:1).

Rather than objecting to the availability of assignment as a remedy, Defendant argues, under various theories, that the cause of action cannot be assigned because the issue has already been decided, or that the claim cannot be assigned because it will eventually fail.”