Judiciary Law §487, perhaps the oldest rule (it’s the common law, not a statute) comes up  in Unclaimed Prop. Recovery Serv., Inc. v Credit Suisse First Boston Corp.
2018 NY Slip Op 30150(U)  January 25, 2018  Supreme Court, New York County Docket Number: 653009/2013 Judge: Saliann Scarpulla, but then it disappears.  This is a contract action between an entity that seeks to recover unclaimed property which may belong to a bank, and Credit Suisse.

“Plaintiffs Unclaimed Property Recovery Service, Inc. (UPRS) and Bernard Gelb (Gelb), UPRS’s vice-president and general manager, bring this breach of contract action against defendants Credit Suisse First Boston Corporation and Credit Suisse First Boston LLC (collectively, Credit Suisse), alleging that Credit Suisse has refused to execute contractually required documents that would enable plaintiffs to recover unclaimed property held in Credit Suisse’s name by the N~w York State Office of Unclaimed Funds (NYS OUF).

Credit Suisse moves for summary judgment dismissing the complaint. Plaintiffs crossmove for summary judgment and an order, pursuant to CPLR 3126, Judiciary Law§ 487 and 22 NYCRR 130-1.1, imposing sanctions against Credit Suisse. ”

After a discussion of whether the agreement was limited to 2005 assets or applied to after-discovered assets, the Court determines:  “For the foregoing reasons, Credit Suisse has demonstrated its entitlement to summary judgment dismissing plaintiffs’ complaint, and plaintiffs have failed to raise an issue of fact in opposition. Plaintiffs argue that Credit Suisse is attempting to recover the unclaimed property on its own and through newly hired professionals (see Gelb aff,  20, exhibits 1, 2, 6), but this evidence is irrelevant because it is not the basis of plaintiffs’ breach of contract claim. See complaint,77-80 (alleging that Credit Suisse breached the 2005 Settlement Agreement by
refusing to cooperate and execute necessary documents). ”

As a defense to a claim of over-billing or breach of fiduciary duty, the attorneys often argue that the client paid some bills and then stopped, allowing for the “voluntary payment” doctrine to refute the claims.  Dubrow v Herman & Beinin  2018 NY Slip Op 00478  Decided on January 25, 2018
Appellate Division, First Department is a newly decided case on this issue.

“Plaintiff alleges that defendants, who represented him in an employment discrimination action, failed to return the unearned portion of his $176,500 retainer at the conclusion of that action. It is undisputed that defendants never provided plaintiff with a written agreement, as required under 22 NYCRR 1215.1, and failed to provide plaintiff with written billing statements, as required by 22 NYCRR 1210.1(4). In addition, defendants refused to provide an accounting of the time spent working on plaintiff’s case when requested by plaintiff’s new attorney. Defendants moved to dismiss, arguing that the breach of contract claim was not adequately pleaded and that plaintiff’s claim is barred by the “voluntary payment doctrine.”

The voluntary payment doctrine “bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law” (Dillon v U-A Columbia Cablevision of Westchester, 100 NY2d 525 [2003]). In the context of an attorney-client relationship, the attorney bears the burden of showing that the parties’ fee agreement was fair, reasonable, and fully known and understood by plaintiff (Jacobson v Sassower, 66 NY2d 991, 993 [1985]; see also Seth Rubenstein, PC v Ganea, 41 AD3d 54, 64 [2d Dept 2007]).

Plaintiff has sufficiently alleged a claim for breach of contract based on defendants’ failure to return the unearned balance of his retainer, pursuant to the parties’ oral agreement (see Nevco Contr. Inc. v R.P. Brennan Gen. Contrs. & Bldrs., Inc., 139 AD3d 515 [1st Dept 2016]). While defendants assert that plaintiff voluntarily made payments to compensate them for their services, they have not established that plaintiff had full knowledge of the relevant facts, such as the number of hours spent by defendants in connection with their representation of him (see Dillon, 100 NY2d at 525). Nor did they submit any evidence to show that the amount of plaintiff’s payments was fair and reasonably related to the value of services rendered (see Jacobson, 66 NY2d at 993). Since defendants did not conclusively refute plaintiff’s allegations, their motion to dismiss was properly denied (see Rite Aid of N.Y., Inc. v Chalfonte Realty Corp., 105 AD3d 470, 470-471 [1st Dept 2013]; Kirby McInerney & Squire, LLP v Hall Charne Burce & Olson, S.C., 15 AD3d 233 [1st Dept 2005]).

Nor does defendants’ contention that plaintiff never questioned their legal fees until the underlying matter was dismissed on summary judgment warrant dismissal. Plaintiff alleges that defendants promised to return any balance at the resolution of the underlying action, and his attempts to obtain an accounting after dismissal of the action are in line with this alleged understanding.”

In one of the few applications of Grace v. Law to date, Supreme Court dismisses a legal malpractice case.  More than this rare application of  Grace, the court dismisses on a question of law.

The facts are simple in Dinerman v Fox  2018 NY Slip Op 30127(U)  January 16, 2018  Supreme Court, Kings County  Docket Number: 513181/2016  Judge: Bernard J. Graham .  Husband signs a stipulation to pay 50/50 for his daughter’s college.  When she reaches 21, he decides not to continue paying.  Wife is, as might be guessed, unhappy.

“Fox had represented Dinerman in a divorce proceeding between Dinerman and his spouse, Mary
Bergam (Supreme Court Kings Co., Index No. 52375/13). As part of the divorce proceedings, a preliminary conference was held on August 1, 2013. An order was entered upon stipulation of the parties providing for various interim relief and discovery to be conducted. The August 1, 2013 order (the “Preliminary Conference Order”) provides in the section entitled Pendente Lite Relief, the following:
“The parties shall pay 50/50 the following expenses: Carrying charges on the marital home; college
expenses for Katherine, tutoring and college prep fees for Daniel”.
The plaintiffs legalmalpractice case is rooted in the fact that there is no provision for the plaintiff to
discontinue the college expenses for his daughter Katherine after she turns 21 years of age. It is
plaintiffs contention that, while he voluntarily agreed to stipulate payment of his daughter’s college
tuition, he had been advised by his then attorney (Fox) that he would not be obligated to pay for expenses after his daughter turned 21.”

“The Court has reviewed the decision of Justice Thomas and, based on the well-thought reasoning
contained therein, it is this Court’s opinion that the decision allows for the possibility (or even
likelihood) that Justice Thomas would have ordered Dinerman to bear responsibility for the payment of his daughter Katherine’~ college expenses until she completed college, regardless of whether Dinerman sought to limit his responsibility for the period ending when his daughter turned 21 years of age. If this possibility exists, it would be impossible to find Dinerman’s attorney’s action to be the proximate cause of his alleged damages.

In any event, this Court is compelled to dismiss the action grounded in legal malpractice based upon the accepted case law in New York. As argued by defendant’s counsel, Dinerman can not establish a prima facie case for legal malpractice without establishing that he sought to appeal the decision of Justice Thomas. (See Grace v Law, 24 NY3d 203 [2014]; see also Buczek v Dell & Little, 127 AD3d 1121 [2d Dept. 2015]).

This argument is relevant given that the accepted rule is that a parent is not obligated to support a
child after the child turns 21 years of age (See Family Court Act sec. 413(1); Social Service Law sec.
101(1); Bani-Esraili v Lerman, 69 NY2d 807 [1987]). Based upon the statutory law limiting the
obligation to support his child until she turned 21 years of age and the fact that there was nothing
explicitly stated as to the cut-off of college obligations when his daughter turned 21 years of age, it is
entirely possible that Dinerman would be “likely to succeed” on an appeal of Justice Thomas’ decision.

Consequently his failure to appeal would bar a legal malpractice claim. (Grace v Law, 24 NY3d at 211). Dinerman can not establish that Fox’s alleged negligence proximately caused his damages. “

The decision in Krigsman v Goldberg  2018 NY Slip Op 30104(U)  January 19, 2018  Supreme Court, New York County  Docket Number: 151271 /16  Judge: Manuel J. Mendez reads like a Dickens novel in which litigation goes on until no one has any money left to litigate over.  Widow litigates over the will until she dies, and all for naught. At the end the law firm has billed $ 100,000 with no result in sight.  Now the question of discovery looms, and the attorneys would like to have the case dismissed.  Judge Mendez describes the limits of discovery.

“The essence of plaintiff’s complaint is that the moving defendants committed legal malpractice when they failed to exercise Dora’s right of election to her husband Shlomo’s estate in accordance with the EPTL§5-1.1-A. That instead of exercising the right of election the moving 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. That Kings County action was transferred to Surrogates Court in October 2003. Dora died in November 2008 without exercising her right of election. ( see amended complaint ).”

The complaint alleges that “on July 23, 2013 the Kings County Surrogate granted a summary judgment motion filed by the executor of Shlomo’s estate, holding that since no notice complying with the statutory requirements of EPTL §5-1.1-A was served and filed before Dora’s death, her right of election was never exercised and her right of election died with her … ” that decision was appealed and “on July 15, 2015 the Appellate Division affirmed the Surrogate’s decision, holding that Dora ‘did not follow the procedure outlined in EPTL §5-1.1-A(d) for exercising a spouse’s right of election” (see amended complaint 1J1J63, 68 moving papers Exhibit A). The complaint further alleges that “despite approximately 13 years, the [constructive trust] action had gone nowhere. The Goldberg defendants failed to take adequate party and non-party discovery and otherwise prepare the action for trial prior to the discovery cut-off. In or around June 2015, when the action was finally scheduled for trial, the Goldberg defendants informed the Surrogate’s Court that they could not
try the action due to a scheduling conflict and sought an adjournment of the trial date.
The Surrogate’s Court rejected the Goldberg defendants’ eleventh hour request for an
adjournment and struck the action from the trial calendar. 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. Despite having accomplished nothing for Dora or the Estate during the 13 years of legal representation, the Goldberg defendants managed to charge Dora and the Estate in excess of $100,000 for the Retained matters, most of which is attributable to litigating the Goldberg defendant’s own failure to take the necessary steps to
exercise Dora’s right of election and, to a lesser extent, working on the action which
was stricken from the trial calendar due to the Goldberg defendants’ negligent acts and
omissions. (see amended complaint 1[1[69-74 moving papers Exhibit A; decision/order
Hon. S. Johnson dated May 10, 2016 papers in opposition Exhibit A). ”

“CPLR 1[3101 (a) calls for the “production of all matter material and necessary in the prosecution or defense of an action … ” CPLR § 3124 grants the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the court the power to sanction a party that fails to comply with a court’s discovery order. However, While discovery should be liberal, information sought must be material and necessary, and meet the test of usefulness and reason (Manley v. New York City Housing Authority, 190 A.D.2d 600, 593 N.Y.S.2d 808 [1st. Dept. 1993)). The supervision of discovery and the setting of reasonable terms and conditions for disclosure are within the sound
discretion of the Supreme Court (Downing v. Moskovits, 58 A.D.3d 671, 873 N.Y.S. 2d 320 [2″d. Dept. 2009)). ”

“CPLR 1[3101 (a) calls for the “production of all matter material and necessary in the prosecution or defense of an action … ” CPLR § 3124 grants the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the court the power to sanction a party that fails to comply with a court’s discovery order. However, While discovery should be liberal, information sought must be material and necessary, and meet the test of usefulness and reason (Manley v. New York City Housing Authority, 190 A.D.2d 600, 593 N.Y.S.2d 808 [1st. Dept. 1993)). The supervision of discovery and the setting of reasonable terms and conditions for disclosure are within the sound
discretion of the Supreme Court (Downing v. Moskovits, 58 A.D.3d 671, 873 N.Y.S. 2d 320 [2″d. Dept. 2009)). “

Plaintiff may have had a good claim against his accountants, maybe not.  The merits will not be reached because of an unusual choice of venues, and the method by which the case was first brought in NY County and then in Westchester County.  The choices caused a procedural catastrophy.

In EB Brands Holdings, Inc. v McGladrey, LLP  2017 NY Slip Op 06923 [154 AD3d 646] October 4, 2017 Appellate Division, Second Department ended the entire case on statute of limitations, when it had originally been timely brought.

“The plaintiff commenced this action to recover damages, inter alia, for professional malpractice against the defendant, an accounting firm that provided auditing services to the plaintiff from 2000 through 2011. Each year, the plaintiff and the defendant entered into an engagement agreement (hereinafter the engagement letter) pursuant to which the defendant performed auditing services for the plaintiff for that year. The last engagement letter between the parties, dated December 19, 2011 (hereinafter the 2011 engagement letter), provided, inter alia, that any claim arising out of services rendered pursuant to that agreement would have to be filed within two years after the issuance of the audit report by the defendant. On May 4, 2012, the defendant issued an audit report to the plaintiff for the year ending December 31, 2011, pursuant to the 2011 engagement letter.

The plaintiff has alleged, inter alia, that the defendant negligently performed the [*2]audits it was required to do pursuant to the engagement letters for the years 2009 through 2011; specifically, the plaintiff has alleged that the defendant overstated the plaintiff’s accounts receivable and inventory figures for several years, and failed to adequately verify those figures in light of the plaintiff’s agreements with purchasers of its products.

Prior to commencing this action in the Supreme Court, Westchester County, in 2013, the plaintiff brought an action against the defendant in the Supreme Court, New York County (hereinafter the New York County action) asserting similar contentions. An order dated August 14, 2014, in the New York County action granted the defendant’s motion for summary judgment dismissing that complaint, without prejudice, on the ground that the complaint failed to state a cause of action. The court granted the plaintiff leave to replead in that action.

Thereafter, rather than amending its complaint in the New York County action, on September 8, 2014, the plaintiff commenced this action in the Supreme Court, Westchester County. In a judgment entered January 26, 2015, the Supreme Court, New York County, dismissed the New York County action pursuant to the plaintiff’s voluntary discontinuance of that action without prejudice.

After the dismissal of the New York County action, the defendant moved pursuant to CPLR 3211 (a) for dismissal of the complaint in this action, in Westchester County, alleging, among other things, that the action is barred by the statute of limitations. The Supreme Court granted the defendant’s motion and dismissed the complaint. The plaintiff appeals.”

DeMartino v Golden  2017 NY Slip Op 04253 [150 AD3d 1200]  May 31, 2017  Appellate Division, Second Department shows what happens when a case starts out pro-se, attorneys get substituted in and then everything goes wrong.  The summons and complaint were served with a corporation and limited liability company were plaintiffs but were unrepresented.  Defendant attorney was then brought in.  Things only got worse from there.

“The Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (3) to dismiss the complaint insofar as asserted by the plaintiffs DeMartino Building Co., Inc., and 150 Centreville, LLC, and denied that branch of the plaintiffs’ cross motion which was to deem the summons and complaint to have been adopted by counsel they retained after the summons and complaint were filed and served. A corporation and limited liability company must be represented by an attorney and cannot proceed pro se (see CPLR 321 [a]; Boente v Peter C. Kurth Off. of Architecture & Planning, P.C., 113 AD3d 803 [2014]; Michael Reilly Design, Inc. v Houraney, 40 AD3d 592 [2007]). Here, DeMartino Building Co., Inc., and 150 Centreville, LLC, did not appear by an attorney when the summons and complaint were filed and served. Accordingly, the complaint, insofar as asserted by them, was a nullity, and the action as to them was improperly commenced (see Hilton Apothecary v State of New York, 89 NY2d 1024 [1997]; Boente v Peter C. Kurth Off. of Architecture & Planning, P.C., 113 AD3d 803 [2014]; Cinderella Holding Corp. v Calvert Ins. Co., 265 AD2d 444 [1999]).

The Supreme Court also properly granted that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted by the plaintiff Frank DeMartino. “Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity or near-privity for harm caused by professional negligence” (Fredriksen v Fredriksen, 30 AD3d 370, 372 [2006]; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595 [2005]). Affording the complaint a liberal construction, accepting the facts alleged therein as true, and according DeMartino the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), the complaint fails to plead specific facts from which it can be inferred that [*2]DeMartino was in an attorney-client or fiduciary relationship, privity, or a relationship that otherwise closely resembles privity with the defendants, who were retained to represent DeMartino Building Co., Inc., and 150 Centerville, LLC, in the underlying action. Accordingly, the court properly directed dismissal pursuant to CPLR 3211 (a) (7) of the causes of action alleging legal malpractice and breach of fiduciary duty insofar as asserted by DeMartino (see Fredriksen v Fredriksen, 30 AD3d at 371; Conti v Polizzotto, 243 AD2d 672, 673 [1997]).”

Roth v Rubinstein & Rubinstein LLP  2018 NY Slip Op 30038(U)  January 8, 2018  Supreme Court, New York County  Docket Number: 154855/16  Judge: Lynn R. Kotler is a story that Hitchcock could have filmed.  Husband and wife make a lot (really a lot) of money in business, and then after all that, the husband is accused of tricking the wife into giving away all of her portion of the marital estate, while he keeps his!

“Plaintiff alleges that the significant wealth that she and her husband accumulated during marriage
was marital property, subject to equitable distribution, in the event of divorce, pursuant to the Domestic Relations Law. In 2012, Mr. Roth allegedly decided “that he would ultimately leave the marriage,” and “sought out ways to effectively deprive [plaintiff] of … her share in their fortune” so that he could claim “in a divorce proceeding that there were virtually no assets subjects to [e]quitable [d]istribution”. Towards this end, Mr. Roth engaged the services of defendants “as counsel to him and [plaintiff]”. Mr. Roth allegedly did not consult with plaintiff about the retention of defendants, and plaintiff was not aware of defendants’ “loyalty to Mr. Roth at her expense”. “In December 2012, Mr. Roth told [plaintiff] that they needed to very quickly create a new estates tax plan because there was likely going to be a change in the law concerning estate taxes commencing in 2013″. ”

“The series of simultaneous transactions, implemented by defendants, involved: (1) creation of revocable trusts for plaintiff and Mr. Roth; (2) creation of irrevocable trusts for each of their two children; (3) transfer of all of the marital assets and all of plaintiff’s separate property into five family limited partnerships, in which plaintiff and Mr. Roth each had a 1 % general partner interest and a 4 7% limited partner interest, and each of their children’s trusts held a 2% limited partner interest; (4) transfer by plaintiff and Mr. Roth of their respective 47% limited partner interests into their respective revocable trusts; and (5) transfer by plaintiff and Mr. Roth of “their revocable trusts’ respective 47% limited partnership interests in each [family limited partnership] to the two children’s trusts in equal shares”. As a result, 98% of all marital property and 98% of plaintiff’s separate property were allegedly transferred “to the children’s trusts as interests in the [family limited partnerships], as opposed to interests in the underlying assets owned by the [family limited partnerships]”. 1 Unbeknownst to plaintiff, Mr. Roth did not subject his separate property to any of the aforementioned transfers, which deprived plaintiff of her rights to equitable distribution of marital property in the event of divorce. ”

“A deed for the conveyance of property in Water Mill, dated March 6, 2013, was prepared by the law
firm (see id., exhibit 5), and it was recorded on April 17, 2014 by the Suffolk County Clerk (see 01/16/17 Kenneth Rubinstein affirmation, exhibit 4). Defendants’ contention, that the recording of the deed did not affect the conveyance of the Water Mill property, is unavailing. The relevant inquiry, for the purposes of application of the doctrine of continuous representation, is whether defendants continued to perform the same or related services as those that are at the heart of this action (see Luk Lame/Jen U. Kupplungbau GmbH v Lerner, 166 AD2d at 506-507). Clearly, the recording of a deed for the transfer of the Water Mill property was at least a related service to the underlying task of plaintiff’s estate planning that defendants undoubtedly undertook (see December 7, 2012 retainer agreement at 3 (stating that defendants will prepare conveyance documents including deeds)]; cf Voutsas v Hochberg, 103 AD3d 445, 446 [1st Dept 2013] [“(t)he continuous representation doctrine did not apply to the malpractice claim, as the legal services relied upon were unrelated to the specific legal matter as to which malpractice was alleged”]). Therefore, the court finds that the doctrine of continuous representation applies, and plaintiff’s cause of action for legal malpractice is not time barred.”