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).”

Some important facts are proffered late in the case description, but Aybar v Cohen, Placitella & Roth, PC 2018 NY Slip Op 50278(U)  decided on February 28, 2018  Supreme Court, Queens County,  McDonald, J. is a question of jurisdiction and choice-of-law as often comes up in auto accidents in far-off states.  This question raises the issue of out-of-state litigants who bring a case into New York concerning an auto accident in Virginia with New Jersey residents, some connection with Pennsylvania and then into New York.

“By way of relevant background, in 2011, Jose A. Aybar, Jr. (Aybar) purchased a used 2002 Explorer from his cousin Jose Velez (Velez) together with a set of four Goodyear Wrangler tires. The tires were not installed on the vehicle. The tires had been kept in storage and were sold with the subject vehicle as an additional set of tires. On June 17, 2012, Aybar took the tires to an auto shop, U.S. Tires and Wheels of Queens, LLC (U.S. Tires), to be inspected and installed on the Explorer. U.S. Tires allegedly inspected the tires, told Aybar that they were suitable for use, and installed them on the Explorer. On July 1, 2012, plaintiffs were involved in a motor vehicle accident involving the subject Explorer.

In August 2012, plaintiffs retained the NTP defendants to represent them with respect to the accident. The NTP defendants executed an attorney-client contract with Orlando Gonzalez on August 2, 2012. The NTP defendants contacted Cohen, Placitella & Roth, PC (the CPR defendants) to act as co-counsel for the lawsuit. On June 10, 2013, Joel Rosen, Esq. of Cohen, Placitella & Roth, PC confirmed referral of the underlying action. On June 17, 2014, the CPR defendants filed the underlying action. By Consent to Change Attorney dated May 8, 2015, the CPR defendants withdrew as counsel for plaintiffs. Omrani & Taub, P.C. were substituted as plaintiffs’ counsel.

On July 1, 2015, plaintiffs’ new counsel, Omrani & Taub, P.C., filed an action against Ford and Goodyear asserting claims for personal injury and wrongful death on various theories of product liability (the Product Liability Action). Plaintiffs also asserted wrongful death and personal injury claims against the driver, Ayber, based on his operation of the vehicle at the time of the accident. Goodyear and Ford moved to dismiss the Product Liability Action for lack of jurisdiction pursuant to CPLR 3211(a)(8). By Orders dated May 25, 2016 and entered on May 31, 2016, the Court denied both Goodyear and Ford’s motions to dismiss (Raffaele, J.). Goodyear and Ford have appealed the Orders denying their motions to dismiss. The appeal is currently pending. Goodyear and Ford then moved to dismiss pursuant to CPLR 3211(a)(5) on the grounds that the wrongful death claims are barred by the applicable statute of limitations. On April 20, 2017, the court in the Product Liability Action stayed all proceedings until the appeal is decided, and the motions to dismiss were denied with leave to renew after the stay is lifted.”

“Plaintiffs commenced this action by filing a summons and verified complaint on June 23, 2017, alleging that the NTP defendants’ conduct was unreasonable and fell short of the standard of care in several respects, including but not limited to: failing to preserve critical evidence relating to the tires and/or the vehicle; failing to properly investigate potential claims against Goodyear and Ford; failing to obtain any expert witnesses to determine potential product liability claims against Goodyear and Ford; failing to properly communicate and advise plaintiffs regarding the potential wrongful death claims against Goodyear and Ford and the statute of limitations associated with those claims; and failing to timely file wrongful death claims on behalf of the deceased occupants against Goodyear and Ford. As of commencement of this action, Ford and Goodyear remain defendants in the Product Liability Action and all of plaintiffs’ claims against them, including the wrongful death claims, remain viable.

The NTP defendants contend that the complaint must be dismissed as asserted against them on the grounds that they are not subject to long arm jurisdiction, plaintiffs and the NTP defendants are not in an attorney-client relationship sufficient to sustain a cause of action for legal malpractice, the NTP defendants referred the matter with due care, and plaintiffs have not sustained actual and ascertainable damages.”

“Plaintiffs contend that the NTP defendants transacted business in New York by seeking out the CPR defendants as co-counsel and purposefully pursing a lawsuit and monetary recover from a New York entity, U.S. Tires. However, the NTP defendants were retained by Orlando Gonzalez, a New Jersey resident, in connection with a motor vehicle accident that occurred in Virginia. The NTP defendants then referred the matter to a Pennsylvania and New Jersey based law firm in compliance with New Jersey rules concerning the taking of referral fees. The letter from Joel Rosen at CPR makes no reference to bringing the case in New York. Moreover, both Mr. Tobias and Mr. Panitch both affirm that they were not involved in the litigation of the underlying action. Plaintiffs failed to show that the NTP defendants actively projected themselves into New York to engage in a sustained and substantial transaction of business within New York, thereby purposefully availing themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302(a)(1) (see Paterno v Laser Spine Inst., 24 NY3d 370 [2014]; Bloomgarden v Lanza, 143 AD3d 850 [2d Dept. 2016]).

Pursuant to CPLR 302(a)(3)(ii), a non-domiciliary entity may be sued in New York if it “commits a tortious act without the state causing injury to person or property within the state” if it “expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce”.

Here, Mr. Tobias and Mr. Panitch’s affirm that the NTP defendants did not receive any revenue from New York and did not have any sufficient contacts with New York. In opposition, plaintiffs failed to demonstrate that the NTP defendants regularly did or solicited business, or engaged in any persistent course of conduct, or derived substantial revenue from interstate or international commerce.

As the Court lacks personal jurisdiction over the NTP defendants, the remainder of the NTP defendants’ motion to dismiss will not be decided herein.”

A disciplinary violation, without more, cannot support a legal malpractice case.  The lesson of Arga Capital, Inc. v Kreiner & Kreiner LLC  February 23, 2018  Supreme Court, New York County
Docket Number: 651649/2014  Judge: Saliann Scarpulla  is that a conflict of interest coupled with demonstrable negligence can definitely support a legal malpractice claim.

“Arga is a Delaware corporation authorized to do business in New York and Alexander Gildengers (“Gildengers”) is its founder and sole shareholder. In April 2011, Arga hired K&K to represent it in connection with the creation of OMG, an online mortgage broker and lender. Arga and K&K entered into a Retainer Agreement on April 15, 2011. After assisting Arga with setting up OMG, K&K  continued to represent Arga and OMG on a variety of matters until July 11, 2013. According to Gildengers, in early 2013 OMG hoped to increase its growth substantially through a capital raise, merger, or other business combination. Gildengers avers that he discussed different business. options with Peter Kreiner (“P. Kreiner”) and received legal advice about possible transactions, including the transaction with Equity Loans LLC (“Equity”) that is the subject of this lawsuit.

In late June or early July 2013, Philip Mancuso (“Mancuso”), OMG’s Chief Executive Officer, commenced negotiations with Eddie Perez (“Perez”) of Equity for , “Equity to acquire the employees and operations of OMG (the ‘Transaction’).” Plaintiffs sought to wind down OMG’s call center business and reconstitute it within Equity. Pursuant to the Transaction, Equity was to assume OMG’s office space lease and hire certain of OMG’s employees.

In a conference call on July 3, 2013, Gildengers, Mancuso and Perez discussed the idea of moving OMG employees to Equity before the parties signed and delivered a contract memorializing the proposed Transaction. During the call, OMG and Equity reached a general, verbal agreement concerning the Transaction.

It is undisputed that as of July 3, 2013, K&K represented both OMG and Equity and helped to create the structure for the Transaction. Plaintiffs allege that they were aware of the concurrent representation but that K&K neither advised OMG that this would create a co.nflict of interest nor requested a conflict waiver.”

“K&K correctly states that violation of a disciplinary rule, without more, is not sufficient to support a legal malpractice claim. Fletcher v. Boies, Schiller & Flexner LLP, 140 A.D.3d 587, 587 (1st Dept. 2016). However, Plaintiffs here allege more than just a violation of New York Rule of Professional Conduct I. 7. Plaintiffs allege that because of the conflict, K&K negligently drafted the NDA and failed to give advice that an ordinary lawyer would give in the same circumstances, leading to OMG’s damages. ”

“The conflicting expert opinions of Hyland and Holdman raise issues of fact as to whether: 1) there was informed consent to the joint representation; 2) K&K met the applicable stand<i;rd of care and 3) the causal link between K&K’s work on the NDA and OMG’s damages. Accordingly, I deny K&K’s motion for summary judgment as to the legal malpractice claim. See Silva v. Worby, Groner, Edelman, LLP, 54 A.D.3d 634, 634 (1st Dept. 2008) (finding that lower court erred in granting summary judgment in legal malpractice action because the “conflicting deposition testimony and affidavits submitted by the parties present a material issue of fact. .. “)”

Exeter Law Group LLP v Immortalana Inc.  2018 NY Slip Op 01269  Decided on February 22, 2018  Appellate Division, First Department  started as a fee dispute.  It now continues into the Appellate Division as a full blown legal malpractice case with third-party defendants.  Perversely, attorneys who gave favorable affidavits to Plaintiff are now third-party defendants.

The tone of the AD opinion is strikingly different from that of Supreme Court.  “Defendants/third-party plaintiffs (hereinafter referred to as the clients) sufficiently stated a claim for legal malpractice against the firm. In particular, the clients alleged an attorney-client relationship; the firm’s failure to exercise ordinary and reasonable skill and knowledge; and damages flowing from additional costs in retaining substitute counsel to restructure the client entities so as to avoid taxes, and the cost of taxes occasioned by the improper corporate structure (see generally AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). The engagement letter does not conclusively establish that the services rendered by the firm were outside the scope of the engagement (CPLR 3211[a][1]).”

Homeward Residential., Inc. v Thompson Hine LLP  2018 NY Slip Op 30325(U)  February 22, 2018  Supreme Court, New York County  Docket Number: 156730/2017  Judge: Arlene P. Bluth claims that when Plaintiff was successfully sued in Georgia, its attorney failed to cite a local rule which limited punitive damages.  As a result, instead of the limited $ 250,000 it was required to pay $3M.  Sounds good so far, but why is the case in NY?

“Defendant moves to dismiss for lack of personal jurisdiction. Defendant stresses that it is a limited liability partnership organized under the laws of Ohio and its principal place of business is in Cleveland, Ohio. Defendant argues that New York has no connection to the underlying lawsuit that occurred in Georgia-defendant claims that none of its New York-based attorneys were involved in the Georgia action. Defendant concludes that it is not subject to general jurisdiction in New York.
In opposition, plaintiff points to information about defendant it found listed by the New York Department of State on its website (“DOS”) which plaintiff claims demonstrates that defendant changed its principal place of business from Cleveland to New York City. Plaintiff also points to a filing in another litigation based in New York in which defendant asserted that its principal place of business is in New York City. ”

“In reply, defendant stresses that the DOS website printouts identify defendant’s principal office within New York; it does not list its principal place of business for purposes of general jurisdiction. Defendant also notes that the firm is listed as a foreign limited liability partnership with DOS. ”

“In order to arrive at plaintiffs conclusion that defendant is actually headquartered in New York, one would have to selectively rely on information that supports plaintiffs position to the exclusion of everything else. Put another way, to embrace plaintiffs conclusion would require the Court to ignore the fact that plaintiff hired defendant to represent it in a Georgia action, paid defendant at an address in Ohio, and ignore the references to Ohio in a DOS printout which identifies defendant as aforeign registered limited liability partnership. Equitable estoppel cannot apply where plaintiff cherry-picks which information to rely on and which facts to ignore. At best, the references to New York in the DOS printouts create an issue for plaintiff to investigate regarding the location of defendant’s principal place of business before commencing the instant action. And as stated above, the principle of equitable estoppel relies on fairness and it would be inherently unfair for defendant to be subject to general jurisdiction in New York because plaintiff relied exclusively on its own interpretation of information compiled by a third party (DOS) over which defendant had no control.”

“Plaintiffs reliance on the filings of other law firms does not compel a different outcome. The question is whether it was reasonable for plaintiff to think that defendant ‘s principal place of business is in New York. How other law firms may have filled out DOS’ forms does not establish that it was reasonable for plaintiff to summarily conclude that defendant moved its headquarters to New York especially given the other facts in this case. “