Plaintiff was fired from a municipal job, but may have had a good defense on appeal.  The attorneys withdrew the appeal. Legal Malpractice?

Roth v. Ostrer , 2018 NY Slip Op 03218 Decided on May 3, 2018 Appellate Division, First  Department suggests that it may well have been a departure from good practice.

“Plaintiff alleges that defendants committed legal malpractice by withdrawing, without first consulting with him, his appeal from a November 2012 order of Supreme Court, Orange County (Lawrence H. Ecker, J.), that dismissed his article 78 petition to annul his summary termination from the Newburgh Police Department, without a pretermination hearing pursuant to Civil Service Law § 75 or Town Law § 155.

Defendants failed to demonstrate as a matter of law that their withdrawal of the appeal was not negligence but a reasonable strategic decision (see Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551 [1st Dept 2011]). The withdrawal resulted in plaintiff’s forgoing a pretermination hearing, which would have entitled him to procedural safeguards and allowed for disciplinary measures less severe than termination. By contrast, the reinstatement hearing to which the Town of Newburgh consented upon vacatur of plaintiff’s conviction and his plea to harassment in the second degree, a violation (Penal Law § 240.26), and at which defendants represented plaintiff, was limited to whether, in the Town’s discretion, plaintiff should be reinstated to his position (see Civil Service Law § 75; Town Law § 155; Public Officers Law § 30[1][e]).

The allegations in the complaint establish that but for defendants’ conduct in withdrawing the appeal from Justice Ecker’s ruling, and in sending a different lawyer than the one promised to represent him at the reinstatement hearing, he would not have incurred damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]). Plaintiff showed that he would have prevailed on the appeal had it not been withdrawn, because Justice Ecker erred in concluding that plaintiff’s conviction of assault in the third degree, based on criminal negligence (Penal Law §§ 15.05[4]; 120.00[3]), a misdemeanor, constituted a violation of his oath of office, i.e., arose from “knowing or intentional conduct indicative of a lack of moral integrity,” and warranted termination without a hearing pursuant to Public Officers Law § 30(1)(e) (Matter of Duffy v Ward, 81 NY2d 127, 135 [1993]). “

It’s rare for legal malpractice or Judiciary Law § 487 claims to be heard in Surrogate’s Court.  Here, in Cooper v Klencner  2018 NY Slip Op 30664(U)  April 13, 2018  Surrogate’s Court, New York County Docket Number: 2014-2912/C  Judge: Rita M. Mella the fight is over a late-in-life bequest of a large-value liquor company to the long-time bookkeeper and personal assistant.

“Sherry Cooper and Alan Hyman are the co-administrators of the estate of Sidney Cooper, deceased, who died intestate on July 16, 2014, in New York County. In the action transferred from the Supreme Court, they seek monetary damages arising from what they claim was an invalid gift by decedent of his shares in Roehling Liquors, Inc., as well as its assets and liabilities, to Klencner, decedent’s long-time bookkeeper and personal assistant. Defendant Heller prepared the documents related to the transfer of the shares, which is also at the heart of the contested SCP A 2103  proceeding pending in this court. In that proceeding, the co-administrators seek the return of decedent’s interest in Roehling Liquors, Inc., as well as other assets to the estate.

Plaintiffs’ verified complaint asserts several causes of action against Heller including
breach of fiduciary duty, aiding and abetting breach of fiduciary duty, fraud, aiding and abetting
conversion, and Judiciary Law § 487. ”

“Heller’s motion to dismiss the breach of fiduciary duty, aiding and abetting breach of fiduciary duty, fraud, aiding and abetting conversion, and Judiciary Law § 487 causes of action asserted against him is denied. The documentary evidence submitted by Heller does not dispose conclusively of plaintiffs’ claims (CPLR 3211 [a][l]). The court also concludes that the complaint states a claim for each of the above-mentioned causes of action, including fraud. The facts, as pleaded, are “sufficient to permit a reasonable inference of the alleged [fraudulent] conduct” (Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 [2008]). In addition, the relevant facts here are “peculiarly within the knowledge” of Heller, and it may be difficult at the pleading stage for plaintiffs to describe all the circumstances that led to the transfer of decedent’s assets to Klencner (Bibbo v Arvanitakis, 145 AD3d 657 [2d Dept 2016]) . ”

The process is set forth in CPLR 3211(c) wherein the Court may convert a motion to dismiss under CPLR 3211 into a motion for summary judgment under CPLR 3212, so long as adequate notice is given to the litigants.  In Englese v Sladkus  2018 NY Slip Op 50621(U)  Decided on April 25, 2018  Supreme Court, New York County, Judge St. George tells the litigants that the materials presented by the attorney in this 3211 motion is better looked at in a 3212 setting, and employs CPLR 3211(c).

“The underlying action related to an apartment that plaintiffs purchased in the building located at 205-209 East 57th Street. Plaintiffs alleged that the apartment was defectively constructed and had toxic mold and that they relocated following an inspection which revealed the scope of the problems. Between June 2007 and August 2009 plaintiffs tried unsuccessfully to get defendant 205-209 East 57th Street Associates, LLC (Sponsor), the owner of the building, to remediate the problems. When these efforts failed, around November 2009, plaintiffs commenced the underlying lawsuit, with another law firm as their counsel. Subsequently, they hired defendants to replace the original firm. The complaint alleges that defendants assured them they would add the Clarett Group, which owned the building’s Sponsor, as well as Clarett’s CEO [*2]at the time, Veronica Hackett, as defendants. Plaintiffs assert that defendants also assured them they would research and confirm that the Sponsor had sufficient assets to satisfy any judgment.

According to the complaint, defendants did none of the things they promised, and in addition they allowed the statute of limitations to lapse. Because of this, and because the Sponsor now contained no assets, plaintiffs contend, they were forced to accept a poor settlement during the mediation that commenced in March of 2012. Plaintiffs assert that, had the case gone to trial, they would have “obtained a judgment against, and collected from, [the defendants in the underlying case] net money damages in excess of three million dollars” (Complaint, ¶ 48). They assert that defendants misled them deliberately in all the above actions. Accordingly, plaintiffs assert causes of action for negligence and legal malpractice, breach of contract, breach of fiduciary duties, fraud and/or negligent misrepresentation, and fee disgorgement.”

“Dismissal is proper under CPLR § 3211 (a) (7) if the allegations are duplicative of or encompassed by the legal malpractice claim (see Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., — AD3d &mdash, &mdash, 2018 Slip Op 01456, at *3 [1st Dept 2018]). Accordingly, much of the second cause of action, for breach of contract, duplicates the legal malpractice claim and cannot stand. The remainder of this cause of action, which asserts that defendants billed them for work they did not perform, or improperly billed them $30,000, cannot stand because of plaintiffs’ acknowledgment that they paid the bills without objection (see Gamiel, 60 AD3d at 474-75). Therefore, the second cause of action is dismissed. The portions of the third and fourth causes of action which relate to the allegations of overbilling are dismissed for the same reason. The remainder of the third cause of action, for breach of fiduciary duty, and the fourth cause of action, for fraud, are dismissed because the allegations are adequately encompassed by the claims for malpractice.^[FN3]

Defendants have not satisfied their burden under CPLR § 3211 (a) (1), which requires them to “utterly refute plaintiff[s’] allegation, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of New York, 98 NY2d 314, 326 [2002]). In a legal malpractice case, a plaintiff must establish that the attorney was negligent, that the negligence [*5]proximately caused plaintiff’s losses, and that the negligence damaged the plaintiff (Global Business Inst. v Rivkin Radler, 101 AD3d 651, 651 [1st Dept 2012]). Thus, to prevail on this argument, defendants must rely on documents that conclusively refute these elements. Defendants primarily rely on emails to support this prong of their motion. Emails and other correspondence may be sufficient to satisfy this burden in certain circumstances (see Kolchins v Evolution Mkts., Inc., — NY3d &mdash, &mdash, 2018 NY Slip Op 02209, at *5 [2018] [citing Kolchins v Evolution Mkts., Inc., 128 AD3d 47, 58-59 [1st Dept 2015], aff’d, — NY3d — [2018]), but only if they “negate beyond substantial question” the allegations in the complaint” (Amsterdam Hospitality Group,120 AD3d at 433), and “conclusively establish[ ] a defense to the asserted claims as a matter of law” (Calpo-Rivera v Siroka, 144 AD3d 568, 568 [1st Dept 2016] [citation and internal quotation marks omitted] [finding that the emails, affidavits, and contract at issue were not “documentary evidence”]). Here, defendants’ documents do not satisfy this burden.

Along with the emails, the remaining contentions in the motion and the opposing papers raise issues of fact that are not proper in the context of a motion to dismiss but are eminently worthy of consideration in a summary judgment motion. Under CPLR § 3211 (c), the Court has the discretion to convert this motion to one for summary judgment. The Court may do so regardless of whether issue has been joined, provided the Court gives ample notice to the parties to “make a complete record and to come forward with evidence that could be considered” (Nonnon v City of New York, 9 NY3d 825, 826 [2007]; see also Mihlovan v Grozavu, 72 NY2d 506 [1988] [reversing the court’s conversion of pre-answer motion to dismiss to one for summary judgment solely because the court did not give the parties notice and the opportunity to brief the issue]). One of the bases for such conversion is that it can lead to an “expeditious disposition of the controversy” (CPLR § 3211 [c]).”

All attorney representations are not equal, and a strong public policy of limiting the volume of legal malpractice cases is highlighted by Siemsen v Mevorach  2018 NY Slip Op 02821  Decided on April 25, 2018  Appellate Division, Second Department.  A guardian is not susceptible of a legal malpractice claim for want of privity.

“In 2012, the Supreme Court issued a commission to guardian, appointing the defendant as the guardian of the person and property of Virginia Lenzovich pursuant to Mental Hygiene Law article 81. The commission to guardian authorized the defendant, among other things, to “[e]xercise any right to an elective share in the estate of the Incapacitated Person’s deceased spouse.” Virginia’s husband, John Lenzovich, died in March 2014, and Virginia died in July 2014. The defendant then moved for judicial settlement of the final account of the defendant as guardian. By order dated January 30, 2015, the Supreme Court discharged the defendant “from any and all liability in connection with all matters embraced in the said final account.” John’s will, in which he disinherited Virginia, was not filed for probate until March 2015.
Subsequently, the plaintiff, as administrator of Virginia’s estate, commenced this action to recover damages for legal malpractice and breach of fiduciary duty based on the defendant’s failure to exercise, on Virginia’s behalf, the right of election against John’s estate. The defendant moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint based on documentary evidence, collateral estoppel, and failure to state a cause of action. The Supreme Court granted the motion, and the plaintiff appeals.”

“The Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for legal malpractice. In a legal malpractice action, a plaintiff must establish, inter alia, that an attorney-client relationship existed (see United States Fire Ins. Co. v Raia, 94 AD3d 749, 750-751; Nelson v Kalathara, 48 [*2]AD3d 528, 529). Here, the plaintiff failed to allege facts that would support a finding that the defendant, as guardian of the person and property of Virginia under Mental Hygiene Law article 81, had an attorney-client relationship with Virginia (see United States Fire Ins. Co. v Raia, 94 AD3d at 750-751; Nelson v Kalathara, 48 AD3d at 529).”

Partial summary judgment for plaintiff is a rare beast in legal malpractice.  Judges have to overcome their natural bias against legal malpractice and the facts have to be very strong, or the acts of the attorneys very clearly wrong for partial summary judgment to be granted.  Here, in Krigsman v Goldberg  2018 NY Slip Op 30694(U)  April 19, 2018  Supreme Court, New York County  Docket Number: 151271 /16  Judge: Manuel J. Mendez we see the rara avis.

“Plaintiff claims that the Goldberg Defendants were retained by plaintiff’s mother, Dora Avrumson (hereinafter “Dora”) in March of 2003, about a month after the death of her second husband Shlomo Cyngiel (hereinafter “Shlomo”), who died on February 15, 2003. It is alleged that the Goldberg Defendants committed malpractice when they failed to exercise Dora’s right of election in accordance with EPTL§5-1.1-A. It is further alleged that instead of exercising the right of election, the Goldberg Defendants filed objections against the Estate of Shlomo in a proceeding in Surrogate’s court to probate Shlomo’s Will, and commenced a separate action in New York State Supreme Court Kings County (Index 21521- 2003) on Dora’s behalf, against Shlomo’s Estate and his children, for the imposition of a constructive trust and a declaration of Dora’s rights in Shlomo’s property (hereinafter referred to as the “constructive trust action).” The Supreme Court Kings  County action was transferred to Surrogates Court in October 2003. Dora died on November 28, 2008 during an ongoing dispute with Shlomo’s Estate over the legality of their marriage. She died without exercising her right of election. ”

It is alleged that the Goldberg Defendants failed to take adequate party and nonparty discovery and otherwise prepare the constructive trust action for trial prior to the discovery cut-off. On June 12, 2015, the constructive trust action was stricken from the trial calendar after the Goldberg Defendants informed the Kings County Surrogate that they could not try the action due to a scheduling conflict and sought an adjournment. Plaintiff alleges that when the Goldberg Defendants neglected the action and failed to move to restore the action to the trial calendar, the defendants in the action moved to dismiss the action for failure to prosecute.”

“Plaintiff has shown that the Goldberg Defendants failed to follow the proper procedure required under EPTL §5-1.1-A[d][1] which provides the procedure to exercise the right of election and specifically states: “Written notice of such election shall be served upon any personal representative in the manner herein provided, or upon a person named as Executor in a will on file in the surrogate’s court in a case where such will has not yet been admitted to probate, and the original thereof shall be filed and recorded, with proof of service, in the surrogate’s court in which such letters were issued within six months from the date of the issuance of letters but in no event later than two years from the date of decedent’sdeath … ” (Emphasis added) (McKinney’s Consol. Laws of New York Annot., vol.17B, EPTL §5-1.1-A) There was a continuous attorney-client relationship between the Goldberg Defendants and Dora and her estate from March of 2003 through March 14, 2013 when they were first substituted by Nicholas Kowalchyn, Esq .. Plaintiff relies on correspondence and the retainer agreement to show that the Goldberg Defendants were aware of their responsibility of properly exercising Dora’s right of election (Mot. Exhs. 6, 7, 9 and 10).
Plaintiff has shown that the Goldberg Defendants proximately caused her damage. ”

“The Goldberg Defendants fail to provide proof in opposition to partial summary judgment on plaintiffs claims of their malpractice in the constructive trust action. The Goldberg Defendants’ representation was also continuous in the constructive trust action c:ommenced in May of 2003 through January 2016 when the Goldberg Defendants withdrew as counsel. The May 10, 2016 Decision and Order of Kings County Surrogate S. Johnson, states: “in the month since Ms. Krigsman retained Greenfield Stein & Senior, the firm has developed this matter to a greater extent than prior counsel did in thirteen years of representation.” (Mot. Exh. 35). The Goldberg Defendants provide no proof that the delay and failure to obtain discovery in the constructive trust action was the fault of other attorneys. Ultimately dismissal of the constructive trust action was due solely to their lack of proper representation, further warranting partial summary judgment on liability to plaintiff. ”