Genet v Buzin  2018 NY Slip Op 01878  Decided on March 20, 2018  Appellate Division, First Department is an example of a pro-se legal malpractice case wiped off the board.  In a short decision, which gives few clues, the AD affirmed in about the shortest way possible.

“Order, same court and Justice, entered January 20, 2017, which, insofar as appealed from as limited by the briefs, denied plaintiffs’ motion to renew so much of defendants’ motion to dismiss as was based on lack of personal jurisdiction, and for leave to serve an amended complaint, unanimously affirmed, without costs.

Plaintiffs’ proposed amendment is “palpably insufficient” (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept 2010]). The allegations underlying the legal malpractice claim merely “reflect plaintiff[s’] dissatisfaction with defendants’ strategic choices and tactics; there is no showing that those choices and tactics were unreasonable” (Kassel v Donohue, 127 AD3d 674, 674 [1st Dept 2015], lv dismissed 26 NY3d 940 [2015]; see also Rosner v Paley, 65 NY2d 736, 738 [1985]).”

The statute of limitations, as we have commented recently, is a social policy which seeks to limit the backlog of potential claims now sitting in virtual warehouses around the nation.  You’ve been harmed, and that harm is actionable.  Society has decided that certainty of business and personal life requires that such claims be brought, or after a certain period, just abandoned.  So it is, and the statute is very powerful.  There are exceptions such as the “continuing wrong” doctrine discussed in Palmeri v Willkie Farr & Gallagher LLP   2017 NY Slip Op 05794 [152 AD3d 457]  July 25, 2017  Appellate Division, First Department.

“In the complaint in this action, dated February 15, 2013, plaintiff asserted causes of action against defendant for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, gross negligence, professional negligence, breach of contract, and breach of the implied covenant of good faith and fair dealing. Plaintiff alleged that defendant, during its representation of Ramius in the FINRA investigation, shifted all responsibility for any alleged violations of FINRA’s rules to him, suggesting that plaintiff undertook certain wrongful actions without Ramius’s knowledge. Plaintiff further asserted that defendant disclosed to FINRA his internal, privileged communications with Ramius’s counsel, thus causing FINRA to assert charges against Palmieri. Moreover, plaintiff alleged that defendant disclosed information that it had learned during the time it represented him. Plaintiff also alleged that the FINRA complaint was primarily based on privileged statements he had made to counsel at Ramius, and that these statements were also disclosed during the course of Willkie’s representation of Ramius after it ceased representing him.”

“To begin, the motion court properly dismissed plaintiff’s claims for gross negligence, breach of contract, and breach of the implied covenant of good faith and fair dealing as duplicative of his legal malpractice claim, given that they are all based on the same facts and seek the same relief (Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669 [1st Dept 2012]).

Plaintiff’s claim for legal malpractice, in turn, is untimely. Claims for legal malpractice are subject to a three-year statute of limitations and accrue when the malpractice is committed, not when the client learns of it (Lincoln Place, LLC v RVP Consulting, Inc., 70 AD3d 594 [1st Dept 2010], lv denied 15 NY3d 710 [2010]; CPLR 214 [6]). Plaintiff’s legal malpractice claim first accrued on or about June 25, 2009, when defendant terminated its legal representation of him, but continued to represent Ramius in the ongoing FINRA investigation. He did not, however, file his claim until February 15, 2013, more than three years later.”

“However, the IAS court should have permitted the breach of fiduciary duty claim to proceed. The IAS court correctly noted that the claim was subject to a three-year statute of limitations. The court was mistaken, however, in finding that the allegedly wrongful conduct ended on June 25, 2009, when defendant unilaterally terminated its representation of plaintiff. On the contrary, defendant’s conduct extended through at least June 29, 2011, during which time it represented Ramius and its employees in their participation at plaintiff’s FINRA disciplinary hearing.

Here, plaintiff alleges not only that defendant breached its fiduciary duty when it terminated its professional relationship with him, but also when, until at least June 2011, it acted in a manner directly adverse to his interests. Where there is a series of continuing wrongs, the continuing wrong doctrine tolls the limitation period until the date of the commission of the last wrongful act (Harvey v Metropolitan Life Ins. Co., 34 AD3d 364 [1st Dept 2006]; see also Ring v AXA Fin., Inc., 2008 NY Slip Op 30637[U], *8 [Sup Ct, NY County 2008] [applying continuing violations doctrine to General Business Law § 349 claim where initial payments occurred outside statute of limitations but “the insurer . . . continued to bill, and . . . (plaintiff) . . . continued to pay” within three years of filing suit]).

Here, plaintiff has presented evidence of a “continuing wrong,” which is “deemed to have accrued on the date of the last wrongful act” (Leonhard v United States, 633 F2d 599, 613 [2d Cir 1980], cert denied 451 US 908 [1981]; Harvey, 34 AD3d at 364). Indeed, the record contains evidence sufficient to create an issue of fact as to whether defendant breached its fiduciary obligations to plaintiff after June 2009 and well into June 2011 during its ongoing representation of the Ramius parties.

For example, as noted, the record contains evidence that in the early portion of 2011, defendant helped Ramius identify witnesses who would testify against plaintiff at his FINRA disciplinary hearing. Similarly, defendant was present on behalf of Ramius and Ramius employees who testified at plaintiff’s FINRA hearing on June 28 through 29, 2011—a hearing at which the employees gave testimony that was generally adverse to plaintiff’s interests. This evidence is sufficient for a fact-finder to determine that defendant breached its duty of loyalty to plaintiff, a former client (see Cooke v Laidlaw Adams & Peck, 126 AD2d 453, 456 [1st Dept 1987] [ethical standards applying to the practice of law impose a continuing obligation upon lawyers to refuse employment in matters adversely affecting a client’s interests, even if the client is a former client]). Concur—Sweeny, J.P., Mazzarelli, Moskowitz and Kahn, JJ.

The statute of limitations serves to freshen and re-freshen the litigation warehouse.  Claims and potential claims are warehoused, and then sometimes brought out.  Policy considerations require that there be limits on how long a claim can be stored.  When the sue-by date arrives, the question of a statute of limitations must be decided, as in Collins Bros. Moving Corp. v Pierleoni  2017 NY Slip Op 07586 [155 AD3d 601]  November 1, 2017  Appellate Division, Second  Department.  Here the question was how far back in tax years may the accounts be held responsible?

“In seeking to assert the statute of limitations as a bar to a claim, a moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired (see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [2017]). If the moving defendant satisfies its burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable (see id.; Barry v Cadman Towers, Inc., 136 AD3d 951, 952 [2016]). A plaintiff may in some cases rely on the “continuous representation” doctrine to toll the statute of limitations (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 194-196 [2009]). A prerequisite for the application of the continuous representation doctrine is that the relationship be continuous with respect to the matter in which the malpractice was alleged; a general professional relationship involving only routine contact is not sufficient (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 9-10 [2007]; Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]; Rodeo Family Enters., LLC v Matte, 99 AD3d 781, 784 [2012]). More specifically, the continuous representation doctrine “applies only where there is ‘a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim’ ” (Rodeo Family Enters., LLC v Matte, 99 AD3d at 784, quoting McCoy v Feinman, 99 NY2d 295, 306 [2002]).

Here, in opposition to the accounting defendants’ motion to bar arbitration of claims that were untimely under the three-year limitations period provided in the letter agreements, the plaintiffs did not contend that the accounting defendants had failed to meet their prima facie burden. Instead, the plaintiffs relied entirely on the continuous representation doctrine. In so doing, the plaintiffs alleged, in conclusory fashion, that “[t]he parties mutually contemplated ongoing representation following each annual review,” and that Anchin “had a continuing obligation to remedy defects in any consolidated financial statements.” The plaintiffs also submitted an affidavit of Webers, in which he averred, without any specificity, that “[r]evisions of prior years[‘] financial statements were routinely performed.” The plaintiffs’ evidence failed to raise a question of fact as to whether the limitations period contained in the letter agreements was tolled by the continuous representation doctrine (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d at 9; Cusimano v Schnurr, 137 AD3d 527, 531 [2016]; cf. Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790; Bronstein v Omega Constr. Group, Inc., 138 AD3d 906, 908 [2016]; Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d at 196). Thus, the Supreme Court correctly determined that the continuous representation doctrine was inapplicable.

The accounting defendants failed, however, to submit any evidence that would have established which of the plaintiffs’ causes of action were untimely. The letter agreements provided [*3]for a three-year limitations period, as follows: “No action, regardless of form, arising out of the services under this agreement may be brought by either of us more than three years after the date of the last services for the year in dispute provided under this agreement.” Because the record before us does not establish the relevant “last services” dates, the determination of those dates and the consequent timeliness of the plaintiffs’ various causes of action must be made in further proceedings.”

Reading legal malpractice cases is an exercise in human sadness and unfortunate circumstance.    Okello v Schwartzapfel, P.C.  2018 NY Slip Op 30402(U)  March 12, 2018  Supreme Court, New York County  Docket Number: 154971/2017  Judge: Arlene P. Bluth  is no exception.  The case illustrates the intersection between mental illness, insanity and tolling of the statute of limitations.  There are few tolls of the statute.  Infancy, insanity and death are three that exist by statute.  What is insanity in the setting of everyday life?

“This legal malpractice case arises out of defendants’ representation of plaintiff Okello (“plaintiff’) in connection with her unsuccessful application for Social Security Income and Disability Insurance Benefits (hereinafter, “Social Security benefits”).· Plaintiff alleges that she began receiving Social Security benefits in 1999 as a result of suffering from bi-polar disorder, a condition which has caused her to be hospitalized on numerous occasions. Plaintiff claims that she relied on these benefits and the income of her husband to provide for her family. However, her husband suffered a stroke in 2006 and was subsequently unable to work. He eventually moved back to live with his parents in Zimbabwe, leaving plaintiff to take care of their children. Plaintiff lost her Social Security benefits in 2012 and filed an application to have her benefits reinstated.

When her initial application was denied, plaintiff hired defendants in December 2012 to .represent her in an appeal of the denial. Plaintiff claims she told defendants about how dire her financial situation and how much she needed the money to support her family. A hearing date of October 9, 2013 was set for plaintiffs appeal.

Before the hearing, the relationship between plaintiff and defendants deteriorated.
Plaintiff contends that defendants were rude and showed a lack of knowledge about her case.
Plaintiff fired defendants in June 2013. Defendants t9ld the Social Secur~ty Administration (the
body hearing plaintiffs appeal) ori June 13, 2013 that it no longer represented.plaintiff.
Thereafter, on September 4, 2013, defendants filed a request with the Social Security
Administration to withdraw plaintiffs appeal and claimed they were doing so with plaintiffs
consent. Plaintiff alleges that this letter was sent without her consent. The Social Security
Administration subsequently dismissed plaintiffs appeal on September 10, 2013.””

On the date of the hearing, October 9, 2013, plaintiff contends that she ·showed up for the
appeal and was shocked when she was told that her case had been dismissed. Plaintiff claims that
her mental condition deteriorated after the withdrawal of her appeal and that her husband (still
living in Zimbabwe at the time) eventually committed suicide in Decem~er 2013. Plaintiff
contends that her husband was distraught over the dismissal of plaintiffs claim, which would
prevent him from returning to the United States because the family did not have enough money
to support him.”

“Defendants argue that the time for plaintiff to file a legal malpractice cause of action ·
began to run in September 2013, when defendants allegedly sent the letter withdrawing plaintiffs
appeal. Defendants claim that this case was filed more than 3 years later in May 201 7.
In opposition, plaintiff argues that the legal malpractice claim accrued when plaintiff was
awarded benefits in March 2017. Plaintiff insists that she could not have brought a legal
malpractice claim until she knew whether her second attempt at getting benefits was successful.
Plaintiff also claims that the statute of limitations should be tolled both on equitable grounds or
on the basis that plaintiff suffered from a legal infirmity.

As an initial matter, the Court finds that the cause of action accrued on September 10,
2_013-when the Social Security Administration dismissed plaintiffs case. Although plaintiff
claims that she did not find out about the dismissal until she showed up for the hearing on
October 9, 2013 “the accrual time is measured from the day an actionable injury occurs even if
the aggrieved party is ignorant of the wrong or injury. What is important is when the malpractice was committed, not when the client discovered it” (McCoy v Feinman, 99 NY2d 295, 301, 755 NYS2d 693 [2002]). Here, the alleged malpractice was on September 10, 2013, the date when plaintiffs appeal was dismissed.
Plaintiffs claim that she did not have a viable cause of action until she was successful in
her second attempt to get Social Security benefits is without merit. As stated above, to establish
causation on this claim, plaintiff must show that she would have prevailed in the
underlying action. Here, that underlying action was dismissed in September 2013. Simply
because the Social Security Administration allows a person to file a new request for benefits does
not toll the statute of limitations arising from the denial of the first application. There is no
reason why plaintiff could not have brought a legal malpractice claim before.her subsequent
· Social Security claim was resolved. A legal malpractice cause of action accrues “from the date
of injury caused by the an attorney’s malpractice” (id.). Here, that was when the Social Security
Administration dismissed plaintiffs application for benefits following defendants withdrawal of
plaintiffs appeal, allegedly without her consent. Confirmation that plaintiff eventually won back
her benefits certainly would be helpful in proving a legal malpractice case, but it does not change
when the statute of limitations began to run. “

Vitale v Koenig  2017 NY Slip Op 51557(U) [57 Misc 3d 1219(A)]  Decided on October 12, 2017
Supreme Court, New York County  St. George, J. gives a very nice analysis of how accounting malpractice is considered on a motion for summary judgment.

“The current lawsuit, which is joined for discovery purposes with Vitale v Sonzone, is against Mr. Koenig, who was Titan II’s accountant. Here, plaintiffs assert that in June 2007 Mr. Vitale asked defendant to perform an accounting of Titan II. Plaintiffs states that in response Mr. Vitale simply received a few pages of handwritten notes with the title “Audit.” Allegedly, Mr. Koenig conceded that he did not review the corporate American Express card bills, which would have shown whether Mr. Sonzone made personal charges or otherwise improper charges on his corporate card, along with other bills from the company. Instead, he stated that he relied entirely on the limited papers Mr. Sonzone had provided to him. Moreover, plaintiffs state, defendant refused to evaluate these other charges when Mr. Vitale provided him with the pertinent records. Plaintiffs claim that defendant received more than $7,000.00 for his improper tax and audit work. Justice Billings, who formerly presided over this case, issued an order in 2011 which dismissed plaintiffs’ second, third, and fourth causes of action. Thus, all that remains are the first cause of action, for professional negligence and accounting malpractice, and the third cause of action, for aiding and abetting Mr. Sonzone’s breach of fiduciary duty. Plaintiffs seek damages of at least $120,000.00.

In his motion to dismiss these remaining causes of action, defendant states there are no triable issues of fact. The first cause of action, he states, is based on the audit he performed on June 26, 2007 and the tax returns he prepared for 2005, 2006, and 2007. As for the June 26, 2007 audit, defendant points out that he performed the audit months after the dissolution of Titan II. As accounting malpractice requires proof of proximate cause, and as plaintiffs did not rely on this document to their detriment during the operation of Titan II, and they cannot show that damages flowed from it, the allegation has no merit.”

“In Schmidt v One New York Plaza (153 AD3d 427, 428 [1st Dept 2017]), the First Department reaffirmed the standard of review for a summary judgment motion:

On a motion for summary judgment, the moving party has the initial burden of establishing its entitlement to judgment as a matter of law with evidence sufficient to eliminate any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1985]). The facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Summary judgment should not be granted where there is any doubt as to the existence of triable issues or there are any issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Utilizing this standard, the Court dismisses plaintiffs’ first cause of action. A claim of accounting malpractice or negligence not only “requires proof that there was a departure from accepted standards of practice” but requires a showing “that the departure was the proximate cause of the injury” (D.D. Hamilton Textiles, Inc. v Estate of Mate, 269 AD2d 214, 215 [1st Dept 2000]). Absent a showing of proximate cause, the case for professional negligence must be dismissed (See Charlap v BDO Seidman, 251 AD2d 146, 147 [1st Dept 1998]). Here, defendant [*4]persuasively argues that the claim relating to the 2007 “audit” occurred after the alleged misappropriations of funds and dissolution of the company. Thus, the Court need not reach the issue of defendant’s competence with respect to the 2007 audit.

As for the alleged malpractice relating to the tax returns, defendant was entitled to rely in good faith on the records his clients provided to him, without the need for verification (CFR § 10.34 [d]). Plaintiffs have not set forth facts that show defendant, who was hired by Titan II in a limited capacity, should not have trusted the Quickbooks which Mr. Sonzone provided. In fact, Mr. Vitale himself did not mistrust Mr. Sonzone initially.”

Freeman v Brecher  2017 NY Slip Op 07949 [155 AD3d 453]  November 14, 2017  Appellate Division, First Department is a series of “no” determinations.  Not Legal Malpractice, not Judiciary Law § 497,, not breach of fiduciary duty.

“Plaintiff’s claim for legal malpractice in connection with an underlying settlement fails to state a cause of action in the absence of allegations that the “settlement . . . was effectively compelled by the mistakes of [defendant] counsel” (Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]) or the result of fraud or coercion (see Beattie v Brown & Wood, 243 AD2d 395 [1st Dept 1997]). Plaintiff’s equivocal denial of knowledge of the terms of the settlement is flatly contradicted by the clear terms of the settlement agreement (see Bishop v Maurer, 33 AD3d 497, 499 [1st Dept 2006], affd 9 NY3d 910 [2007]). Additionally, plaintiff’s speculative and conclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim (see Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Plaintiff’s cause of action for breach of fiduciary duty arising from the same conduct was correctly dismissed as duplicative of the legal malpractice claim (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 436 [1st Dept 2011]; InKine Pharm. Co. v Coleman, 305 AD2d 151, 152 [1st Dept 2003]). Plaintiff has abandoned her breach of fiduciary duty claim based on a referral scheme, and, in any event, has failed to properly plead such a scheme.

The speculative nature of plaintiff’s claim of damages arising from defendant Dan Brecher’s alleged conflict of interest in assuming a board position in a company in which plaintiff invested while simultaneously serving as plaintiff’s counsel cannot support a legal malpractice claim (see Dweck Law Firm v Mann, 283 AD2d 292, 294 [1st Dept 2001]).

The Judiciary Law § 487 claims were correctly dismissed, as the conduct alleged does not evince a chronic and/or extreme pattern of legal delinquency (see Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014]). Additionally, plaintiff has not alleged any proximately caused damages or identified any damages sustained as a result of Brecher’s alleged conflict of interest, which did not arise in the course of a judicial proceeding and thus is not actionable under the statute (see Meimeteas v Carter Ledyard & Milburn LLP, 105 AD3d 643 [1st Dept 2013]).”

It is not often you get a short precise decision which lays out what and how a Legal Malpractice and a Judiciary Law 487 case may be proven, but Gorbatov v Tsirelman  2017 NY Slip Op 07979 [155 AD3d 836]  November 15, 2017  Appellate Division, Second Department is just that.

“The plaintiff Yevgeny Gorbatov is a licensed acupuncturist and the principal of the six corporate plaintiffs. The defendants Gary Tsirelman and the Law Office of Gary Tsirelman, P.C. (hereinafter together the Tsirelman defendants), and Leon Kucherovsky and the Law Office of Leon Kucherovsky, P.C. (hereinafter together the Kucherovsky defendants), are attorneys who represented some or all of the plaintiffs in hundreds of matters involving the collection of unpaid medical bills from insurers. The plaintiffs commenced this action against the defendants asserting causes of action [*2]to recover damages for legal malpractice, violation of Judiciary Law § 487, and unjust enrichment, and seeking accountings. The Tsirelman defendants and the Kucherovsky defendants separately moved pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against each of them. In the alternative, the Kucherovsky defendants sought severance of the action insofar as asserted against them pursuant to CPLR 603. The Supreme Court denied the motions without prejudice and with leave to renew upon the completion of discovery, pursuant to CPLR 3211 (d). The Tsirelman defendants and the Kucherovsky defendants separately appeal.

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026; Thompson Bros. Pile Corp. v Rosenblum, 121 AD3d 672[2014]). “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]; see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only where the documentary evidence utterly refutes the complaint’s factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Cavaliere v 1515 Broadway Fee Owner, LLC, 150 AD3d 1190, 1191 [2017]).

Contrary to the defendants’ contentions, the Supreme Court properly denied, without prejudice to renew upon the conclusion of discovery, those branches of their motions which were pursuant to CPLR 3211 (a) (1) and (7) to dismiss the legal malpractice and Judiciary Law § 487 causes of action. To plead a claim for legal malpractice, a plaintiff must allege (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015]). “An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if ‘but for’ the attorney’s negligence the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages” (id. at 50 [internal quotation marks and citation omitted]; see Dombrowski v Bulson, 19 NY3d 347, 350 [2012]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Under Judiciary Law § 487, an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or . . . [w]ilfully delays his client’s suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for, [i]s guilty of a misdemeanor, and [is liable for] treble damages, to be recovered in a civil action” (Judiciary Law § 487; see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [2015]; see Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120 [2011]). “[V]iolation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009] [citation omitted]).

Here, the complaint, as amplified by the plaintiffs’ submissions in opposition to the defendants’ motions (see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016]), alleged that the defendants conspired with the plaintiffs’ billing agent, nonparty Gary Shikman and his company the Denium Group, to convert funds received from insurers in recovery of the plaintiffs’ claims, or violated their duties to ensure that the plaintiffs received the funds, resulting in the plaintiffs incurring losses of those funds, and otherwise improperly handled the plaintiffs’ claims. These allegations generally state causes of action sounding in legal malpractice (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d at 49; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.15 [c] [4]), and violation of Judiciary Law § 487 (see Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 14 [2014]; cf. Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 912 [2015]). Further, the affidavits, letters, and spreadsheets submitted by the defendants in support of their motions did not constitute documentary evidence pursuant to CPLR 3211 (a) (1) (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012]; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2003]), and, in any event, did not conclusively establish a lack of legal malpractice or deception. [*3]To the extent that the plaintiffs’ allegations are insufficiently specific to each legal matter or particularized, the plaintiffs set forth a reasonable basis to believe that, with additional discovery, they would be able to develop sufficient facts to make more specific allegations (see Lemle v Lemle, 92 AD3d 494, 499-500 [2012]). Facts essential to the opposition of the motions were in the possession of the defendants, warranting denial of these branches of the motions without prejudice and with leave to renew upon the completion of discovery (see CPLR 3211 [d]; Peterson v Spartan Indus., 33 NY2d 463, 466 [1974]; Giunta’s Meat Farms, Inc. v Pina Constr. Corp., 89 AD3d 799, 800 [2011]).”

The trilogy of claims in a legal-professional negligence setting are legal malpractice, breach of contract and breach of fiduciary duty.  Claims are duplicitive if they arise from the same set of facts and claim the same or similar damages.  We think that a legal malpractice claim which seeks the value of a lost asset or a lost claim is different from a breach of contract claim which seeks damages derived from the legal billings (not a lost asset or a lost claim) and that a breach of fiduciary duty which seeks damages derived from a conflict of interest or excessive billing are all non-duplicitive.  Courts often disagree, and in effect, seek to limit the field.

Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C.  2018 NY Slip Op 01456  Decided on March 7, 2018  Appellate Division, Second Department is an example.

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (id. at 442).

Here, viewing the complaint in the light most favorable to KWI, it sufficiently alleged that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in negotiating the 2007 settlement agreement, and that the defendant’s breach of this duty proximately caused KWI to sustain actual and ascertainable damages (see Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437). Accordingly, the Supreme Court properly denied 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.

However, the Supreme Court should have granted those branches of the defendant’s motion which were to dismiss the second and third causes of action, which were, respectively, to recover damages for negligent misrepresentation and breach of contract, as duplicative of the legal malpractice cause of action. Those causes of action were duplicative of the legal malpractice cause of action because they arose from the same operative facts and did not seek distinct and different damages (see Thompsen v Baier, 84 AD3d 1062, 1064; Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 199; Maiolini v McAdams & Fallon, P.C., 61 AD3d 644, 645; Gelfand v Oliver, 29 AD3d 736; Shivers v Siegel, 11 AD3d 447).”