MINEOLA:  Millet v Kamen  2018 NY Slip Op 28181  Decided on May 31, 2018  Supreme Court, Nassau County Marber, J. is a case that discusses the balance in obligation and remedy between Professionals and others.  Sometimes professionals, such as defendant-architect do business with non-professionals, but do not render professional services.  In this case Defendant sold a renovated home to non-professionals, but had not been retained by them to provide professional services.  The house displays certain problems.  How might the non-professionals recover damages?

“”It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]). “[M]erely alleging that the breach of a contract duty arose from a lack of due care will not transform a simple breach of contract into a tort.” (Sommer v. Federal Signal Corp., 79 NY2d 540, 551 [1992]). Professionals may be held liable in tort for failure to exercise reasonable care, irrespective of their contractual duties (Id.). In such circumstances, “it is policy, not the parties’ contract, that gives rise to a duty of care.” (Id. at 552).

In determining whether a legal duty independent of a contractual obligation should be imposed, courts look to the nature of the services performed and the parties’ relationship — “specifically, where the defendant ‘perform[s] a service affected with a significant public interest [and where the] failure to perform the service carefully and competently can have catastrophic consequences.’ ” (Dormitory Authority of the State of New York v. Samson Construction Co., 30 NY3d 704, 711 [2018], citing Sommer, 79 NY2d at 553). In addition to considering the relationship between the parties, courts also evaluate the nature of the injury, how the injury occurred and the harm it caused (Dormitory Authority, 30 NY3d at 711). The Court of Appeals has made clear that “where plaintiff is essentially seeking enforcement of the bargain, the action should proceed under a contract theory” (Dormitory Authority, 30 NY3d at 711, citing Sommer, 79 NY2d at 552)

One of the legal issues addressed by the New York Court of Appeals in Dormitory Authority is precisely the issue presented here — whether the plaintiff’s negligence claim asserted against the defendant architect was duplicative of the breach of contract claim. Dormitory Authority was decided by the Court of Appeals on February 15, 2018, one day after the instant motion was fully briefed and submitted. As the parties did not have the opportunity to reference this recent opinion in their papers, pertinent portions are noted and relied upon herein.

Dormitory Authority involved a construction project to build a lab for use by the Office of the Chief Medical Examiner in New York City adjacent to Bellevue Hospital. Pursuant to a contract with the City, the plaintiff was responsible for financing and managing the design and [*6]construction of the lab. Pursuant to a contract between Dormitory Authority and Perkins (defendant architect), Perkins was to provide design, architectural, and engineering services for the project and supervise its construction. Ultimately, the failure to properly install an excavation support system led to substantial damage and delays, including causing an adjacent building to “settle” by eight inches and damage to sidewalks, sewers and water mains, requiring emergency repairs. (Dormitory Authority, 30 NY3d at 707-708). The Plaintiff’s breach of contract claim alleged that Perkins failed to provide adequate designs; failed to properly supervise subcontractors it retained; failed to monitor the progress of their work to ensure it was being completed properly and in substantial compliance with design recommendations; failed to ascertain the actual field conditions and the foundation beneath the adjacent building; and failed to advise Dormitory Authority of the risks posed by the installation of the excavation support system and taking precautions against such risks. (Dormitory Authority, 30 NY3d at 708-709). The Court of Appeals described the allegations set forth in plaintiff’s negligence claim as “virtually identical in every respect, but with an introductory phrase that references Perkins’ failure to ‘comply with professional standards of care’ instead of breach of contract. The damages for both claims were described as the “significant additional expenses” necessary to complete the project. However, the damages sought pursuant to plaintiff’s professional malpractice claim was $4 million higher than for its breach of contract.

In dismissing the negligence claim as duplicative of the breach of contract claim, the Court of Appeals found, as it did in Clark-Fitzpatrick, that the negligence allegations were “merely a restatement, albeit in slightly different language, of the ‘implied’ contractual obligations asserted in the cause of action for breach of contract” (Id. at 711-712). The Court noted that there was no distinction in the allegations between the damages applicable to either claim. The Court also found significant that the contract itself contemplated the defendant architect’s responsibility for additional costs or expenses due to the architect’s design errors or omissions, and addressed it in the contract terms.

In the instant matter, dismissal of the Plaintiffs’ negligence claims is warranted. Affording the Plaintiffs every reasonable inference, as required on a pre-answer motion, the Court finds that the negligence allegations are all based upon acts or omissions pursuant to the explicit terms of the Limited Warranty in the parties’ Contract. In the First Cause of Action, labeled breach of Limited Warranty as against Architect, the Plaintiffs allege latent defects resulting from defective installation of the plumbing, HVAC and electrical systems resulting in major water leaks, damaged floors, failure to maintain a temperature and risk to health and safety. Other than employing language that Defendants “[failed] to exercise reasonable care in fulfilling [their] duty to Plaintiffs”, the negligence claims merely include a more detailed description of the defects resulting from the Defendants’ alleged “negligent and/or substandard workmanship or craftmanship in violation of industry standard and/or the applicable building codes”.

As to the relationship between Kamen and the Plaintiffs, nothing in the Contract, amended complaint, or submissions herein suggest that Kamen was retained to provide architectural services or to design a home specifically for the Plaintiffs herein. Rather, while the Defendants were involved in constructing the Premises, the nature of the parties’ relationship is in contract.”

Debra Cascardo is a pro-se litigant in Cascardo v Macklowitz  2018 NY Slip Op 31231(U) June 8, 2018 Supreme Court, New York County Docket Number: 101528/2017 Judge: Frank P. Nervo. One of her earlier legal malpractice cases, in her married name,  added to the Harvey line of cases in which a legal malpractice case is dismissed on the basis that  “Plaintiff acknowledged that she understood and agreed with the terms of the settlement and knew that it was a full and final agreement. She further stated that her attorney had answered her questions and that she was satisfied with the services he provided. Under these circumstances, the motion court properly dismissed the complaint (see Weissman v Kessler, 78 AD3d 465 [2010]; Katebi v Fink, 51 AD3d 424 [2008]).”

Here, in the present case, service problems threaten to overwhelm her case.  “In this legal malpractice action, defendants move, pursuant to CPLR 3211 (a) (8), for preanswer dismissal of plaintiffs complaint for lack of personal jurisdiction based on improper service. Plaintiff, appearing prose, opposes the application. The affidavit of service filed with the New York County Clerk on December 7, 2017 reveals that nonparty Dusty Burke (Burke) served defendants on October 27, 2017 by leaving the summons and complaint with their receptionist at their business located at 299 Broadway, Suite 1405, in New York County. ”

Staving off immediate dismissal, a Traverse hearing will be held.

Central Amusement Intl. LLC v Lexington Ins. Co.  2018 NY Slip Op 04095  Decided on June 7, 2018 Appellate Division, First Department demonstrates that while permission to amend a pleading should be freely given, its not the same standard for the complaint as it is for the answer.

“The motion court did not abuse its discretion in granting defendant’s motion to amend its answer (see Murray v City of New York, 43 NY2d 400, 404-405 [1977]; McGhee v Odell, 96 AD3d 449, 450 [2012]; CPLR 3025[b]). Plaintiff’s argument that it was prejudiced at the time of the amendment because it was time-barred from pursuing a professional malpractice claim against its engineer, is unavailing. The motion court correctly observed that plaintiff had the opportunity and duty to perform its own investigation to uncover potential culpable conduct by its contractors, engineers, or any other party that may have contributed to the loss, but it chose not to do so. Plaintiff has also not established the validity of its prejudice claim, as it never attempted to sue its engineer (or other third party) following the disclosure of defendant’s expert report. The claim that defendant’s production of the expert report was delayed finds no support since it was timely produced during expert discovery.

Nor did the court abuse its discretion in denying plaintiff’s renewal motion (see CPLR 2221[e]; Matter of South Bronx Unite! v New York City Indus. Dev. Agency, 138 AD3d 462 [1st Dept 2016]). Plaintiff failed to show any new facts that would have been relevant to the court’s consideration of the motion. Furthermore, the court’s denial of plaintiff’s motion to amend the complaint was properly denied since the proposed amendment was “palpably improper or insufficient as a matter of law” (McGhee at 450 [internal quotation marks omitted]).”

NEW CITY:     A recurring strain of legal malpractice cases come from matrimonial settlements.  More than any other sector of litigation, matrimonial settlements tempt the Courts to avoid a “effectively compelled to settle” analysis in favor of a “I’m satisfied with my attorney” analysis.  Imagine if medical malpractice law allowed a surgical patient to be awoken and asked whether they approved of their doctor’s work?

Here, plaintiff loses on both ends.  An account stated is found, and the settlement of the matrimonial is found to rule out legal malpractice.

“” An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due'” (Bashian & Farber, LLP v Syms, 147 AD3d 714, 715, quoting Citibank [South Dakota], N.A. v Abraham, 138 AD3d 1053, 1056). “Although an account stated may be based on an express [*2]agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account” (Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056; see Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850). The “agreement” at the core of an account stated is independent of the underlying obligation between the parties (see Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056; Citibank [S.D.] N.A. v Cutler, 112 AD3d 573).

Here, the plaintiff demonstrated her prima facie entitlement to judgment as a matter of law on the cause of action to recover legal fees on an account stated in the amount of $18,581.50, with interest from July 11, 2011 (see Bashian & Farber, LLP v Syms, 147 AD3d at 715). In opposition, the defendant failed to raise a triable issue of fact (see Langione, Catterson & Lofrumento, LLP v Schael, 148 AD3d 797). The plaintiff also demonstrated her prima facie entitlement to judgment as a matter of law dismissing the defendant’s counterclaims. The plaintiff’s submissions demonstrated that in representing the defendant, who was also the defendant in the divorce action, she exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the stipulation of settlement executed by the defendant in the divorce action was not the product of any mistakes by the plaintiff (see Schiff v Sallah Law Firm, P.C., 128 AD3d 668, 669). The stipulation of settlement recited, among other things, that the defendant reviewed and understood its terms, had an opportunity to consult with counsel and have the legal and practical effect of the stipulation fully explained to him, executed the stipulation voluntarily, without coercion or pressure of any kind, and believed the stipulation to be fair and reasonable (see Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328; Schiff v Sallah Law Firm, P.C., 128 AD3d at 669). In opposition, the defendant failed to raise a triable issue of fact.”

BUFFALO:  Experts are important, no?  The short answer is “of course!”  The longer answer is that they are necessary, absolutely necessary, to plaintiff’s legal malpractice case, as Murray v Lipman 2018 NY Slip Op 04484  Decided on June 15, 2018  Appellate Division, Fourth Department tells us.

“Memorandum: Plaintiff commenced this legal malpractice action seeking damages based on defendants’ representation of her in matters involving workers’ compensation. Defendants moved for summary judgment dismissing the complaint, and Supreme Court granted the motion. We affirm. In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiff is “unable to prove at least one necessary element of the legal malpractice action” (Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]), e.g., ” that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community’ ” (Phillips v Moran & Kufta, P.C., 53 AD3d 1044, 1044-1045 [4th Dept 2008]). Here, defendants met their initial burden on the motion with respect to that element (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). To the extent that plaintiff alleged a violation of the Rules of Professional Conduct (22 NYCRR 1200.0) in opposition to defendants’ motion, we note that “such an alleged violation does not, without more, support a malpractice claim” (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014]). Inasmuch as plaintiff did not submit an expert’s affidavit “delineating the appropriate standard of professional care and skill’ to which defendants were required to adhere under the circumstances present here,” she failed to raise an issue of fact concerning defendants’ compliance with the applicable standard of care (Zeller v Copps, 294 AD2d 683, 684 [3d Dept 2002]; see Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243, 243 [1st Dept 2005]; see also Zeller v Copps, 294 AD2d 683, 684-685 [3d Dept 2002]).

Cohen v Sive, Paget & Riesel, P.C.  Decided on June 14, 2018  Appellate Division, First Department discusses the question of whether it can be legal malpractice not to search for and attempt to apply insurance for the client.  While it may take the case away from counsel, it is of course more beneficial to the client to have a free defense.

“Defendant argues that its failure to advise plaintiffs of the condition in their insurance policy requiring them to provide the insurance company with prompt notice of their claim was not the proximate cause of plaintiffs’ damages. Defendant contends that, by the time plaintiffs retained it as counsel, more than a month had passed since they had learned of the damage implicating the policy, and thus the insurance company would have declined coverage anyway, based on plaintiffs’ unreasonably delayed notice (see Young Israel Co-Op City v Guideone Mut. Ins. Co., 52 AD3d 245 [1st Dept 2008]; Pandora Indus. v St. Paul Surplus Lines Ins. Co., 188 AD2d 277 [1st Dept 1992]). However, the record does not conclusively demonstrate a delay of that length; issues of fact exist as to when the notification obligation was triggered.

Defendant’s contention that the legal malpractice claim should be dismissed as speculative is without merit.”

Legal malpractice, to the surprise of many, is a “no harm-no foul” situation in which not only must a mistake be made, but that mistake must have proximate results.  Buongiovanni v Hasin  2018 NY Slip Op 04302 Decided on June 13, 2018  Appellate Division, Second Department is a good example.  Did the first attorney make mistakes?  Perhaps.  Was there a second attorney that could have fixed the mistakes? Perhaps.  When the AD granted a new trial, did it wipe out all the earlier mistakes.  Yes.

“The defendant David V. Hasin, the principal of the defendant Law Office of David V. Hasin, represented the plaintiff in related divorce actions. Hasin was permitted to withdraw as [*2]counsel, and the plaintiff was assigned new counsel. The plaintiff’s assigned counsel was permitted to withdraw as counsel five days prior to the start of the trial in the first action, and the Supreme Court denied the plaintiff’s application for an adjournment to enable her to obtain new counsel and conduct further discovery. The parties proceeded to trial, resulting in a decision after trial and a judgment of divorce dated August 20, 2012.

On November 5, 2014, the plaintiff commenced this action, inter alia, to recover damages for legal malpractice, alleging that Hasin provided her with negligent representation in the divorce actions. In January 2015, the defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice, arguing that successor counsel could have remedied any alleged deficiencies in Hasin’s representation. In an order dated March 26, 2015, the Supreme Court, inter alia, denied the branch of the defendants’ motion which was to dismiss the cause of action alleging legal malpractice, noting that “at this point in the litigation, the Court cannot conclude as a matter of law that successor counsel had an adequate opportunity to correct the alleged inadequacies in [Hasin’s] representation.”

“In April 2015, the defendants moved, inter alia, for leave to renew that branch of their motion which was to dismiss the cause of action alleging legal malpractice. In support of their motion, they submitted a decision and order of this Court dated November 19, 2014, which, inter alia, vacated the judgment of divorce and remitted the matter to the Supreme Court to allow the plaintiff to obtain new counsel in the divorce actions and to conduct further discovery (see Buongiovanni v Buongiovanni, 122 AD3d 786). The defendants asserted that they had not located the decision and order dated November 19, 2014, before making their motion to dismiss because they misspelled the plaintiff’s name during an online search for decisions involving the plaintiff. In an order dated June 1, 2015, the Supreme Court, among other things, granted that branch of the defendants’ motion which was for leave to renew, and, upon renewal, in effect, vacated the prior determination and thereupon granted that branch of the defendants’ prior motion which was to dismiss the cause of action alleging legal malpractice.”

“Here, the vacatur of the judgment of divorce in the decision and order dated November 19, 2014, was a new fact not offered on the prior motion to dismiss that would change the original determination (see CPLR 2221[e][2]). The judgment of divorce was vacated based upon the Supreme Court’s improvident exercise of discretion in denying the plaintiff’s adjournment request in the divorce actions (see Buongiovanni v Buongiovanni, 122 AD3d at 788), and in the present action the plaintiff does not seek to recover damages based upon the expenses incurred in connection with her appeal from the judgment of divorce (cf. Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443). Since the judgment of divorce was vacated and the plaintiff was [*3]afforded an opportunity to retain new counsel and to conduct further discovery, the plaintiff cannot, under these circumstances, establish that she has sustained damages proximately caused by Hasin’s alleged negligent representation (see Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; Perks v Lauto & Garabedian, 306 AD2d 261, 262; Albin v Pearson, 289 AD2d 272, 272-273; cf. Tooma v Grossbarth, 121 AD3d 1093). Further, the defendants’ failure to discover the decision and order dated November 19, 2014, due to a spelling error was tantamount to law office failure which, under the circumstances of this case, constituted a reasonable justification (see Hackney v Monge, 103 AD3d 844, 845; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 391-392).”