In this architectural malpractice case, the Court finds that both malpractice and breach of contract claims remain viable.

Yellin v Zimmerman  2018 NY Slip Op 04098  Decided on June 7, 2018  Appellate Division, First Department is a case in which there are sufficient different claims so that both malpractice and breach of contract (for different claims remain in play.

“The court correctly determined that the first cause of action, although denominated a claim for professional malpractice, also states a cause of action for breach of contract (see generally Foley v D’Agostino, 21 AD2d 60, 65 [1st Dept 1964]).

The court also correctly found that the breach of contract cause of action is not redundant of the malpractice claim

(see Ferro Fabricators, Inc. v 1807-1811 Park Ave. Dev. Corp., 127 AD3d 479, 480 [1st Dept 2015]. The breach of contract claim is premised upon obligations distinct from those that flow from professional standards of architectural practice, and it seeks damages distinct from those sought under the dismissed malpractice claim.

The court also correctly denied summary dismissal of the breach of contract cause of action since the record presents issues of fact as to whether defendant complied with the particular terms of the contract at issue.”

CANTON, NY:   George v Phippen  2018 NY Slip Op 50809(U)  Decided on June 5, 2018
Supreme Court, St. Lawrence County  Farley, J. is the story of a simple car accident encumbered by a number of missteps.  It is a cautionary tale for legal malpractice observers.  It all starts with a traffic accident with a municipal dump truck.

“On July 19, 2016, Plaintiff Douglas M. George (“George”) was involved in a motor vehicle accident with a truck owned by Defendant Town of Stockholm, New York (“Town”), and operated by Defendant Derec C. Phippen (“Phippen”) during the course of Phippen’s employment for the Town. George was operating a 2013 Toyota sedan owned by his wife, Plaintiff Joanne Shenandoah (“Shenandoah”). Because he did not timely serve a notice of claim under New York General Municipal Law (“GML”) § 50-e (1), George commenced a special proceeding (“Special Proceeding”) (Index No. 149142) by order to show cause (“OSC”) seeking leave to serve the Town and Phippen with a late notice of claim under GML § 50-e (5). This Court granted George’s application, and the Order (“Order”) was filed and entered with the St. Lawrence County Clerk on February 27, 2017. On Monday, November 27, 2017, George and Shenandoah filed a Summons and Complaint using the Index Number of the Special Proceeding. Now before the Court is Defendants’ motion to dismiss this action pursuant to NY C.P.L.R. § 3211 (a) (5) as barred by the one year and 90-day statute of limitations set forth in GML § 50-i (1). For the reasons which follow, the Court denies Defendants’ motion to dismiss with respect to George’s cause of action, and grants Defendants’ motion with respect to Shenandoah’s claims.”

“After counsel for Defendants advised the Court the Town and Phippen did not intend to [*2]oppose George’s Order to Show Cause, on January 25, 2017, this Court signed the Order [Ex. C to Brandi aff.] permitting George to serve the Notice of Claim upon them both. The Order was filed with the St. Lawrence County Clerk on February 27, 2017. See Hobaica aff. at ¶ 4 & Ex. 1 [date-stamped Order]; see Brandi Reply aff. at ¶ 6. The Notice of Claim alleged a claim for George only, and did not mention Shenandoah or assert a claim on her behalf.

On April 11, 2017, Defendants conducted an examination of George pursuant to GML § 50-h. George testified the accident took place July 19, 2016, as he was driving to Canada for the purpose of speaking at a cultural seminar, when Defendants’ dump truck veered to its left before making a right turn and striking the vehicle which George was operating. See Transcript of GML § 50-h hearing [Ex. E to Brandi aff.], at 12, 13. At this examination, George testified he had been married to Shenandoah for 25 years; they work “as a partnership” where “she does music and I do the cultural component”; and, his wife “experienced liver failure and [ ] hasn’t been working steadily since July of 2015.” Id. at 5, 10-11, 63. Shenandoah was not examined pursuant to GML § 50-h because she was not identified as a claimant in the Notice of Claim. See Brandi aff. at ¶ 13.

On Monday, November 27, 2017 — 496 days after the July 19, 2016, accident — Plaintiffs filed a Summons and Complaint ^[FN1] using the Index Number from the Special Proceeding, listing both George and Shenandoah as Plaintiffs, and setting forth a first cause of action for George’s injuries, and a second cause of action alleging a derivative claim on behalf of Shenandoah. By letter Order signed January 29, 2018, in the Special Proceeding [Ex. 2 to Hobaica aff.], the Court directed Plaintiffs to acquire a new index number and the Clerk to assign that index number nunc pro tunc to the November 27, 2017, filing of the Summons and Complaint. Plaintiffs’ Amended Complaint dated February 1, 2018 (“Complaint”), correctly identifies July 19, 2016 as the date of accident. Complaint [Ex. 3 to Hobaica aff.] at ¶¶ 6-9. Plaintiffs’ counsel acknowledges any earlier references that July 18, 2016, was the accident’s date were “typographical date errors.” Hobaica aff. at ¶ 10.”

“In the case at bar, the toll was in effect for forty (40) days — from January 18, 2017 (date of personal service of OSC) to February 27, 2017 (entry date of Order granting relief). Adding this toll to the 455-day statute of limitations results in the statute of limitations expiring November 26, 2017 — 495 days after the July 19, 2016, motor vehicle accident. Although he did not commence this action until the 496th day — November 27, 2017 — George’s claim is saved because November 26, 2017 was a Sunday. In pertinent part, New York Construction Law (“GCL”) § 25-a provides:

When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day [ ].

Id. (emphases added).

See Cyens v. Town of Roxbury, 40 AD2d 915, 915 (3d Dep’t 1972) (citing GCL §25-a; “since the period within which appellants’ action [pursuant to GML § 50-i] had to be commenced expired on a Saturday, appellants had until [the following] Monday [ ] to commence their action”). Accordingly, the Court denies Defendants’ motion to dismiss with respect to George’s claim and cause of action.

Having found George’s claim and cause of action timely, the Court next addresses Shenandoah’s derivative cause of action. Shenandoah’s claim and cause of action differs from George’s in several key respects: (1) George’s original motion by order to show cause for leave to [*6]file late notice of claim concerned him only, and did not mention Shenandoah; (2) the resulting Order concerned George only, and did mention Shenandoah or any claim which she might have; and, (3) the Notice of Claim sets forth a claim for George only. In addition, and because George was the only person granted leave to serve late notice of claim, Defendants conducted the hearing pursuant to GML § 50-h of George only, and no testimony was offered by or taken from Shenandoah. Further, although opposing Defendants’ motion seeking dismissal of Shenandoah’s claim, Plaintiffs have not: (1) cross-moved under GML § 50-e (5) for leave to serve a late notice of claim with respect to Shenandoah; (2) provided a proposed notice of claim including Shenandoah’s claims; or, (3) cross-moved under GML § 50-e (6) to amend the original notice of claim on the ground of a “mistake, omission, irregularity or defect made in good faith in the notice [of claim].”

The Court grants Defendants’ motion and dismisses Shenandoah’s derivative cause of action for three reasons. First, and as noted above, “a court is without power to authorize the late filing of a claim or to order that a late filed claim be deemed timely nunc pro tunc where the statute of limitations has expired.” E.g., Schwinghammer v. Sullivan W. Cent. School Dist., 2 AD3d 1126, 1126-27 (3d Dep’t 2003) (citing Pierson, 56 NY2d at 954-55). The Second Department’s decision in Martin v. Village of Freeport, 71 AD3d 745 (2d Dep’t 2010), is instructive. In that case plaintiff, guardian of her daughter (an incapacitated person), had previously sought and obtained leave to serve a late a notice of claim, which “did not include a derivative claim.” 71 AD3d at 745. After commencing suit, plaintiff sought leave to amend her complaint to include a derivative claim, but did not move either: (1) for leave to serve a late notice of the derivative claim; or, (2) to amend the original notice of claim to include a derivative claim. Denying plaintiff’s motion to amend her complaint, the Second Department held “under these circumstances [ ] plaintiff was foreclosed from asserting a derivative claim against [defendant].” Id. See also: Boakye-Yiadom v. Roosevelt Union Free School Dist., 57 AD3d 929, 931 (2d Dep’t 2008) (“[a] plaintiff may not maintain causes of action for which he failed to serve a timely notice of claim”). As in Martin, George’s Notice of Claim — for which he received leave of court to serve, with the accompanying toll — did not include any derivative claim. Accordingly, Shenandoah is not entitled to any toll, and her cause of action is untimely.”

The statute of limitations is a significant issue for many litigants.  There is a delay or lapse time between when a mistake is made and when a legal malpractice case is commenced.  In some cases, plaintiffs wait to see whether a mistake can be fixed; sometimes new counsel don’t magically appear right away and there is once again, delay.  How does this all affect the commencement of the statute of limitations?

Mazario v Snitow Kanfer Holtzer & Millus, LLP  2018 NY Slip Op 31024(U)  May 24, 2018
Supreme Court, New York County  Docket Number: 152742/2017  Judge: Barbara Jaffe is an example of the subjective method of determining the onset of the statute of limitations.  She relies on the “lack of trust and confidence” line of cases rather than an objective “when was the consent to change attorneys filed” line of cases.

“In support of their defense based on the three-year statute of limitations for malpractice
actions, Milius relies on an email dated March 6, 2014, whereby PPL requested its legal file from
Milius (NYSCEF 19, 69), and on an email dated August 15, 2013, by which he advised Mazario
that it was “impossible” to continue to represent him and that he intended to move to withdraw
from the case, and recommended that Mazario obtain new counsel (NYSCEF 18). Defendants
thus argue that the action is time-barred, as it was commenced on March 23, 2017, which is more
than three years after the latest date on which the action accrued, March 6, 2014. (NYSCEF 23,
79).
Plaintiffs maintain that Milius continued to represent PPL until his motion to be relieved
was granted on April 22, 2014 (NYSCEF 10). They rely on Millus’s promises to provide
guidanc_e and assistance to any new counsel ret~ined by PPL and his delay in seeking to
withdraw from the action, and observe that they did not hire new counsel until after Milius was
relieved as counsel. They also complain of being deprived of the discovery required to establish
whether the relationship between PPL and Milius continued beyond March 6. Moreover, they
argue, the purported documentary evidence offered by defendants fail absent an affidavit of one
with personal knowledge of the pertinent events. (NYSCEF 62)”

” Here, defendants meet their initial burden by offering undeniable evidentiary proof that
the malpractice claim accrued, at the latest, on March 6, 2014, more than three years before this
action commenced, when PPL requested its legal file, thereby demonstrating a lack of trust and confidence in Millus. (See Farage, 124 AD3d at 168 [on motion for summary judgment,
retrieval of litigation file marked end of representation, and consent to change attorney form
executed later was “mere ministerial task” to inform others that representation ended]; Aseef. 106
AD3d at 1038 [on motion to dismiss claim as time-barred, trial court correctly concluded
relationship necessary to invoke continuous representation ceased to exist when plaintiff
surreptitiously removed his file from attorney’s office]).

While the order relieving Milius as counsel formalized the end of the attorney-client
relationship, it is not dispositive of when the representation ceased. (See Aaron v Roemer.
Waif ens & Mineaux. LLP, 272 AD2d 752, 755 [3d Dept 2000], Iv dismissed 96 NY2d 730 [2001]
[as plaintiff, in letter to court, did not contest attorney’s withdrawal and described relationship as
fractured, date of letter, as opposed to date on which withdrawal formalized, marked end of
representation]). Moreover, Millus’s offer to provide guidance to new counsel does not clearly
indicate that the relationship continued beyond March 6, 2014 (see id. at 755 [plaintiffs letter to
court stating he would not contest motion to withdraw and was seeking new counsel indicated he
perceived relationship with counsel broken]), nor does Mazario’s unilateral belief that
representation continued (see Davis v Cohen & Gresser, LLP, I 60 AD3d 484, 484 [1st Dept
2018] [statute of limitations not tolled as, inter afia, record reflected lack of mutual
understanding that defendant would continue to represent plaintiff]). Likewise, in these
circumstances, Millus’s delay in moving to withdraw from representation does not prove
continuous representation. (See Riley v Segan, Nemerov & Singer, P.C., 82 AD3d 572, 572-573
[I st Dept 20 I I] [not dispositive that attorney never moved to withdraw, as he sent client letter
stating he could not proceed with case, thereby severing relationship]).  “

47 Third Residential Invs. LLC v Georges  2018 NY Slip Op 30989(U)  May 22, 2018
Supreme Court, New York County  Docket Number: 155636/2017  Judge: Robert D. Kalish is the sad story of architectural work, of mistakes, and of tremendous losses, now probably not covered by insurance.

“Plaintiff commenced the instant action on June 21, 2017, bye-filing a summons and complaint. Plaintiff alleged in its complaint that it was the owner of a residential condominium unit comprising five floors and all development rights of the six-story building located at 101 East 10th Street, New York, New York 10003 (the “Building”). Plaintiff further alleged that it retained Defendant Gregory Georges in 2015 to investigate and determine the structural impact of adding new floors to the Building (the “Project”). Plaintiff then alleged that it relied on Defendant’s finding that the Building could support the addition of six new floors on top of the existing Building and purchased air rights from the neighboring property owner at 55 Third A venue in furtherance of the Project. Plaintiff next alleged that it commissioned structural and architectural drawings and other engineering services from Defendant in furtherance of the Project. Plaintiff then alleged that it added at least one floor to the Building based on Defendant’s services and conclusions. Plaintiff further alleged that it made several payments to Defendant.

Plaintiff alleged that, in or about March 2016, it retained three separate engineering firms-Active Design Group Engineering DPC, Rosenwasser Grossman Consulting Engineers, P.C., and Structural Engineering Technologies-to conduct a peer review of Defendant’s findings and study the structural impact of the proposed addition on the critical structural components of the Building. Plaintiff then alleged that the peer review resulted in unequivocal recommendations that differed greatly from Defendant’s in that other and additional major structural work not recommended by Defendant would be necessary to complete the Project. As a result, Plaintiff terninated Defendant from the project on February 29, 2016. Plaintiff then sued Defendant in the instant action for professional malpractice, alleging that Defendant has cost Plaintiff at least two years of delays on the Project, during which time it had paid for materials which would tum out to be useless and has had to continue paying substantial carrying costs on several vacant residential floors.

On October 12, 2017, this Court granted Plaintiffs September 1 1, 2017 motion pursuant to CPLR 3215 for an order directing the entry of a default judgment in favor of Plaintiff and against Defendant. (Affirmation of Skillman, exhibit A.) The Court found that Plaintiff had shown prima facie based upon an affidavit of service that Defendant had been served personally with process pursuant to CPLR 308 (1) on July 8, 2017, at 34 Wedgewood Drive, Coram, NY 11727. The Court found further that Defendant had failed to answer or appear in the instant action and his time to do so had expired. The Court found further that Plaintiff had submitted adequate proof of the facts constituting its claim by means of the affidavits of merit of Mr. Zampetti, an authorized representative of Plaintiff, and Mr. Nusbaum, a managing member of Plaintiff. As such, the Court directed the Clerk to enter a judgment in favor of Plaintiff and against Defendant on the issue of liability and further directed an assessment of damages.”

“On February 15, 2018, J.H.O. Gammerman held the inquest on damages. (See affirmation of Skillman, exhibit B [Tr].) Defendant appeared pro se at the inquest in his first appearance in
this action. J.H.O. Gammerman began by explaining to Defendant that a default judgment had
been entered against him as to liability establishing that Defendant was negligent in his profession. Defendant responded by asking to open the default judgment. J.H.O. Gammerman replied that Defendant would need to make a motion to do that. Defendant replied by saying he would like to move now, but J.H.O. Gammerman told Defendant that the issue was not before him.”

“Defendant stated that he had previously failed to appear in the instant action “[b Jecause
[he himself] was in the hospital.” (Tr at 7, line 3.) “

ALBANY:   The Third Department heard oral argument and rendered a decision in Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC  2017 NY Slip Op 07916 [155 AD3d 1218]
November 9, 2017  Appellate Division, Third Department, holding that in this legal malpractice case there were simply not enough allegations for the court to reach any deterioration at all.  Because there were two dissenters, this case might well show up in the Court of Appeals.

“A legal malpractice claim requires that the plaintiff show that “the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence” (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [citations omitted]; see Hinsdale v Weiermiller, 126 AD3d 1103, 1104 [2015]). The amended complaint alleged that, but for defendants’ failure to provide timely and competent legal services, plaintiff would have succeeded in the underlying debt collection and mortgage foreclosure actions. The amended complaint further alleged that “had [defendants] not failed to advise the cases in a timely and competent manner . . . , [plaintiff] would not have incurred a loss in time and value in the debt on the collection and foreclosure cases assigned to defendant[s].” Other than these vague and conclusory allegations, however, plaintiff failed to plead any specific facts, which, if accepted as true, would establish a legal malpractice claim. Absent from the amended complaint is any mention of an instance of deficient representation or any example of erroneous advice by defendants. Merely alleging the elements of a legal malpractice claim in a general fashion, without more, does not satisfy the liberal pleading standard of CPLR 3211. Furthermore, while a recitation of the elements of a cause of action may meet that component of CPLR 3013 requiring that the statements in a pleading provide notice of “the material elements of [a] cause of action,” the statute also requires that the pleading’s statements be “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved” (CPLR 3013 [emphasis added]; cf. Matter of Garraway v Fischer, 106 AD3d 1301, 1301 [2013], lv denied 21 NY3d 864 [2013]; Eklund v Pinkey, 27 AD3d 878, 879 [2006]).

The statements in the amended complaint fail in this regard in that they do not allege a single transaction where defendants were retained to provide legal services or a single occurrence of negligent legal representation forming the basis of the legal malpractice claim, let alone the specific underlying foreclosure action or actions in which defendants allegedly committed legal malpractice. Other than stating that defendants represented plaintiff in foreclosure actions, the amended complaint does not allege, and, more critically, it cannot reasonably be inferred from such pleading, what defendants allegedly did or did not do in a negligent fashion. The amended complaint is not just sparse on factual details—rather, it is wholly devoid of them.^[FN2] Given the [*3]absence of detailed facts, the legal malpractice cause of action should have been dismissed (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 910 [2016]; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d at 1185-1186; Kreamer v Town of Oxford, 96 AD3d 1128, 1128 [2012]; compare Soule v Lozada, 232 AD2d 825, 825 [1996]).

Addressing the concerns raised by the concurrence/dissent, defendants certainly could have requested a bill of particulars or moved for a more definite statement under CPLR 3024.^[FN3]Notwithstanding the favorable standard enjoyed by plaintiff, defendants nonetheless elected to challenge the legal sufficiency of the legal malpractice allegations under CPLR 3211 (a) (7).^[FN4] Having been apprised of defendants’ challenge and being presented with an opportunity to particularize its allegations, plaintiff, in response, submitted an amended complaint that merely added two paragraphs consisting of bare legal conclusions. Plaintiff had avenues to withstand the motion to dismiss but “[chose] to stand on [its] pleading alone” (Rovello v Orofino Realty Co., 40 NY2d 633, 635 [1976]). Nor do we believe that our decision will lead to unpredictability or confusion given that it reiterates the proposition that bare legal conclusions in a pleading are not entitled to consideration when assessing a motion to dismiss under CPLR 3211 (a) (7) (see Myers v Schneiderman, 30 NY3d 1, 11 [2017]; Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d at 141; Maas v Cornell Univ., 94 NY2d 87, 91 [1999]; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d at 1185; Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131-1132 [2014]). Indeed, such a motion “is useful in disposing of actions in which the plaintiff . . . has identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action” (John R. Higgitt, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:22).”

Despite the writing of one of the biggest names in legal circles, Appellant got absolutely nowhere in challenging Judge Kornreich.  As she is retiring, this may be one of her last opinions.

Shawe v Elting  2018 NY Slip Op 03644  Decided on May 22, 2018  Appellate Division, First Department is an example of how the First Department handles JL § 487 cases.  In the First Department, more than a single instance of deceit is required, and it better be “egregious.”

“Moreover, our rulings in Elting v Shawe (129 AD3d 648 [1st Dept 2015]) and Elting v Shawe (136 AD3d 536 [1st Dept 2016]), in which we held that the payroll access and corporate ownership assertions, made in support of the TRO and preliminary injunction applications in the 2014 action, were not material, collaterally estop Shawe from relying on those misstatements. Since those misstatements form the entire basis of Shawe’s current malicious prosecution claim, collateral estoppel constitutes a second, independent basis for dismissal of that cause of action.

The payroll access misstatements likewise form a substantial portion of Shawe’s current claim for violation of Judiciary Law § 487. Given especially that Elting was granted a TRO, the payroll access misstatements, which we have determined to be immaterial, “were not sufficiently egregious to support this claim” of § 487 violation (Mintz v Rosenberg, Minc, Falkoff & Wolff, LLP, 53 Misc 3d 132{A} [App Term 1st Dept 2016]). Shawe’s allegations that the attorney defendants deceptively backdated a retainer agreement primarily relates to privilege assertions in the Delaware action, and not in New York, and, as such, is not actionable under § 487 (see Doscher v Manatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]). The remaining basis of Shawe’s claim under § 487 — the allegedly knowing filing of a baseless defamation counterclaim — is a “single alleged act of deceit … not sufficiently egregious to support a claim under” § 487 (Strumwasser v Zeiderman, 102 AD3d 630, 631 [1st Dept 2013]).”