Professional negligence similar to legal malpractice deals with areas of specialized knowledge.  When the term “specialized knowledge” is used, the trial lawyer thinks: “admissibility”, “lay juries” and “experts.”  In Herman v Franke, Gottsegen, Cox Architects  2017 NY Slip Op 07980
Decided on November 15, 2017 Appellate Division, Second Department one side utilized an expert, the other did not.  The result was then predictable.

“The plaintiffs, J. Maurice Herman and Windsor Plaza, LLC (hereinafter Windsor), commenced this action to recover damages for professional malpractice and breach of contract. They alleged in the complaint that Windsor owned a building located at 952 Fifth Avenue in Manhattan, and Herman owned the unused development rights associated with the building. In 2003, they retained the defendants, the architectural firm Franke, Gottsegen, Cox Architects (hereinafter FGCA), Erika N. Frank, and Norman R. Cox, to determine the maximum extent to which the building could be enlarged under the applicable codes and regulations. The defendants reported that the building could be enlarged to add an additional 22,161 square feet.

The plaintiffs alleged that, based on that report, they decided to enlarge the building by only 12,161 square feet, and to donate a restrictive covenant on the unused 10,000 square feet to the National Architectural Trust (hereinafter the NAT). Herman took a tax deduction on his 2003 personal income tax return for the value of the 10,000 square feet. The Internal Revenue Service (hereinafter the IRS) disallowed the deduction, resulting in years of litigation before the United States Tax Court, which ultimately ruled in favor of the IRS.

The plaintiffs then commenced this action, alleging that, pursuant to the Multiple Dwelling Law, the maximum permissible enlargement of the building was only approximately 12,000 square feet, not 22,161 square feet, and that if the defendants had accurately calculated the extent to which the building could be expanded, Herman would not have attempted to donate the unused 10,000 square feet to the NAT and taken a deduction for the donation. The defendants moved for summary judgment dismissing the complaint, and submitted an affidavit from Cox, a licensed architect, who affirmed, with a reasonable degree of architectural certainty, that the defendants’ determination that the building could be enlarged to add an additional 22,161 square feet was correct. The plaintiffs opposed the motion and cross-moved for summary judgment, submitting only an affidavit from Herman. The Supreme Court granted the motion and denied the cross motion, [*2]and the plaintiffs appeal.

A claim of professional malpractice requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury (see Bruno v Trus Joist a Weyerhaeuser Bus., 87 AD3d 670, 672; Kung v Zheng, 73 AD3d 862, 863; Estate of Burke v Repetti & Co., 255 AD2d 483). It is incumbent upon the plaintiff to present expert testimony to support allegations of malpractice (see 530 E. 89 Corp. v Unger, 43 NY2d 776, 777; McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 24), except where the alleged act of malpractice falls within the competence of a lay jury to evaluate (see 530 E. 89 Corp. v Unger, 43 NY2d at 777; Hammer v Rosen, 7 NY2d 376, 380).

Here, the Supreme Court correctly concluded that the determination of the maximum enlargement of the building permissible under New York law was the type of determination that required specialized knowledge, and thus, that expert evidence testimony was required to determine whether the defendants exercised due care in making that determination (see 530 E. 89 Corp. v Unger, 43 NY2d at 777; Michael v He Gin Lee Architect Planner, PLLC, 153 AD3d 704). The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the affidavit from Cox, a licensed architect. As the plaintiffs failed to offer an affidavit from an expert, they failed to establish their entitlement to judgment as a matter of law and failed to raise a triable issue of fact to rebut the defendants’ prima facie showing.”

 

Plaintiff sued under Judiciary Law § 487 and was promptly the subject of sanctions and dismissal.  Supreme Court granted both, and an appeal ensued.  In Liang v Wei Ji  2017 NY Slip Op 08361
Decided on November 29, 2017  Appellate Division, Second Department,  the Court affirmed because plaintiff had previously been enjoined from starting any actions without prior permission.  The Sanction was upheld because defendant had specifically made a motion for sanctions.

“NYCRR 130-1.1 for the imposition of a sanction in the amount of $160 against the plaintiff. The Supreme Court, inter alia, granted that branch of the motion which was for a sanction and, sua sponte, directed dismissal of the complaint on the ground that it violated a prior order dated September 19, 2012, issued in an action entitled Liang v Yi Jing Tan, commenced in the Supreme Court, Queens County, under Index No. 8155/12, which enjoined the plaintiff from commencing any action related to that apartment without prior leave of court. The plaintiff appeals.

Contrary to the plaintiff’s contention, the Supreme Court properly directed dismissal of the complaint on the ground that the plaintiff commenced this action in violation of the order dated September 19, 2012. Public policy generally mandates free access to the courts (see Vogelgesang v Vogelgesang, 71 AD3d 1132, 1134; Sassower v Signorelli, 99 AD2d 358, 359). However, a party may forfeit that right if he or she abuses the judicial process by engaging in [*2]meritless litigation motivated by spite or ill will (see Duffy v Holt-Harris, 260 AD2d 595; Matter of Shreve v Shreve, 229 AD2d 1005). Here, there was ample basis to support the court’s determination to dismiss this action and prevent the plaintiff from engaging in further vexatious litigation.

The plaintiff’s contention that he was not given an opportunity to be heard on that branch of the defendants’ motion which was for the imposition of a sanction is without merit. Under 22 NYCRR 130-1.1(d), “[a]n award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case.” Here, the defendants moved to dismiss the complaint and also for imposition of a sanction. The plaintiff was given notice of the motion, and he had a reasonable opportunity to be heard in opposition thereto (see Matter of Minister, Elders & Deacons of Refm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411, 413; Duncan v Popoli, 105 AD3d 803, 804-805).”

 

It takes a while to work through the events of Josephs v AACT Fast Collections Servs., Inc. 
2017 NY Slip Op 08357  Decided on November 29, 2017  Appellate Division, Second Department and to determine whether it was a mistake not to oppose a motion for dismissal.  Near the end of the decision we see what appears to be the determining factor:  the case remains good against one of the corporate forms of the law firm.

“The plaintiffs commenced this action, inter alia, to recover damages for legal malpractice against Lubarsky & Tarnovsky Attorneys and Counselors at Law, P.C. (hereinafter L & T), and another defendant by summons and complaint filed August 23, 2012. On or about December 9, 2014, the plaintiffs moved for leave to amend the caption of the action to add Leon Lubarsky, Rada Tarnovsky, and another person as additional defendants. Lubarsky and Tarnovsky opposed the motion, arguing that the statute of limitations had elapsed. In reply, the plaintiffs contended that the relation-back doctrine applied. In an order dated August 11, 2015, the Supreme Court, inter alia, granted those branches of the plaintiffs’ motion which were for leave to amend the [*2]caption to add Lubarsky and Tarnovsky as defendants and directed the plaintiffs to serve the amended complaint upon all parties within 20 days of the order. Lubarsky and Tarnovsky appeal.

Thereafter, L & T, Lubarsky, and Tarnovsky moved pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against them for lack of personal jurisdiction. The plaintiffs did not oppose the motion. In an order dated March 16, 2016, the Supreme Court, inter alia, denied the motion. L & T, Lubarsky, and Tarnovsky appeal.

As to the order dated August 11, 2015, the Supreme Court properly granted those branches of the plaintiffs’ motion which were for leave to amend the caption to add Lubarsky and Tarnovsky as additional defendants, since the plaintiffs established the applicability of the relation-back doctrine (see Castagna v Almaghrabi, 117 AD3d 666, 667; Austin v Interfaith Med. Ctr., 264 AD2d 702, 703-704). Therefore, the August 11, 2015, order must be affirmed insofar as appealed from.

As to the order dated March 16, 2016, the Supreme Court should have granted those branches of the motion of L & T, Lubarsky, and Tarnovsky which were pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against Lubarsky and Tarnovsky for lack of personal jurisdiction. The affidavits of service filed by the plaintiffs, indicating that they attempted to effect service of the supplemental summons and amended complaint upon Lubarsky and Tarnovsky pursuant to CPLR 308(2), fail to indicate that the process server mailed the supplemental summons to either of these defendants. “Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with” (Gray-Joseph v Shuhai Liu, 90 AD3d 988, 989; see Washington Mut. Bank v Murphy, 127 AD3d 1167, 1174). Therefore, the affidavits of service did not establish, prima facie, that service was properly effected pursuant to CPLR 308(2) (see Daguerre, S.A.R.L. v Rabizadeh, 112 AD3d 876, 878-879; cf. Roberts v Anka, 45 AD3d 752, 753-754). We note that “[w]hen the requirements for service of process have not been met, it is irrelevant that defendant may have actually received the documents” (Raschel v Rish, 69 NY2d 694, 697; see County of Nassau v Letosky, 34 AD3d 414, 415; Long Is. Sav. Bank v Meliso, 229 AD2d 478). Since the plaintiffs failed to submit any evidence that the requirements for service of process were met with respect to Lubarsky and Tarnovsky, the court should have directed the dismissal of the amended complaint insofar as asserted against those defendants pursuant to CPLR 3211(a)(8).

With respect to L & T, however, the record includes an affidavit of service from a process server indicating that service upon L & T in this action was effected by delivery of the original summons and complaint to the Secretary of State, which creates a presumption of proper service on L & T (see CPLR 311[a][1]; Business Corporation Law § 306; Thas v Dayrich Trading, Inc., 78 AD3d 1163, 1164). Since L & T did not submit any evidence to rebut this prima facie showing of proper service, the Supreme Court properly denied that branch of the motion which was pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against L & T for lack of personal jurisdiction.”

Just as the roof proved inadequate to the task, so the proofs on plaintiff’s case were inadequate to the claim in Petre v Alouidor & Assoc.  2017 NY Slip Op 51590(U) Decided on November 27, 2017 Appellate Term, First Department.  It appears that there was no expert.

“The trial court correctly dismissed the action at the close of plaintiff’s case. Viewing the evidence in the light most favorable to plaintiff, there was no rational basis by which the trier of fact could have found in his favor on his purported legal malpractice claim (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). Plaintiff failed to present any competent evidence to demonstrate that the firm that represented him in a real estate transaction, defendant Alouidor & Associates, P.C., did not 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 plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).

Even accepting plaintiff’s contention that the law firm defendant breached the specific provision of the retainer agreement requiring “representation at closing” (see generally Goldfarb v Hoffman, 139 AD3d 474, 475 [2016]), plaintiff failed to establish that the breach was the [*2]proximate cause of the damages complained of – the cost to replace the roof of the property purchased. Nor in any event did plaintiff show that a defect in the roof existed at the time of closing or that a complete replacement of the roof was required.”

Weintraub v Petervary  2017 NY Slip Op 51595(U)  Decided on November 16, 2017 Appellate Term, Second Department is an example of how lower courts over-determine cases in favor of the attorney and to the detriment of the client.  Legal malpractice cases, we have argued in the past, are dismissed at a greater rate than in the general inventory of cases, and courts routinely delve into the specifics of cases rather than review the pleadings.

“Appeal, and cross appeal on the ground of inadequacy, from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered February 13, 2015. The judgment, entered upon so much of an order of that court dated January 31, 2014 as granted plaintiff’s motion for summary judgment dismissing the counterclaim, and after a nonjury trial of plaintiff’s cause of action, awarded plaintiff the principal sum of $5,092 and implicitly dismissed defendant’s counterclaim. Defendant’s appeal from the judgment brings up for review so much of an amended order of that court dated February 20, 2015 as denied the branch of defendant’s motion seeking leave to file an amended answer to add affirmative defenses (see CPLR 5501 [a] [1]).

ORDERED that the judgment is reversed, without costs, so much of the order dated January 31, 2014 as granted plaintiff’s motion for summary judgment dismissing the counterclaim is vacated; plaintiff’s motion for summary judgment dismissing the counterclaim is granted only to the extent of granting plaintiff partial summary judgment dismissing so much of the counterclaim as seeks to recover for legal malpractice based on plaintiff’s alleged failure, while representing defendant in a Supreme Court equitable distribution action, to establish that, [*2]under Hungarian law, defendant had entered into a common-law marriage with her former spouse prior to their New York marriage; so much of the amended order dated February 20, 2015 as denied the branch of defendant’s motion seeking leave to file an amended answer is vacated; and the matter is remitted to the District Court for a new determination of that branch of defendant’s motion and, thereafter, for a new trial on plaintiff’s cause of action and on the remaining portions of the counterclaim;”

“Defendant and Nicholas Petervary (Nicholas) were married in New York on November 15, 1998 and were divorced by a Hungarian court in March 2007. The Hungarian court referred to the New York courts the issues regarding the distribution of property located in New York. On January 30, 2008, defendant retained plaintiff to represent her in a postdivorce action for equitable distribution, which was thereafter commenced in the Supreme Court of Suffolk County on February 8, 2008. After Nicholas failed to appear in that action, an inquest was held in 2009, following which the Supreme Court did not award defendant the portion of the assets to which she felt she was entitled, and denied her an award of counsel fees on the ground that plaintiff had not submitted his invoices to the court. Plaintiff was discharged by defendant on March 16, 2010. Plaintiff subsequently commenced this action to recover for legal services he had rendered in the Supreme Court action between February 2, 2008 and March 11, 2010, alleging a balance due of $12,582.48.

In her answer, defendant generally denied the allegations of the complaint and interposed a counterclaim, contending that, because plaintiff had committed legal malpractice in the Supreme Court action, he was not entitled to be reimbursed for any of the legal services he had rendered therein. Essentially, defendant alleged four instances of plaintiff’s malpractice, to wit, that plaintiff had failed to: (1) establish that defendant had entered into a valid common-law marriage with Nicholas, pursuant to Hungarian law, prior to their November 1998 marriage, which proof would have enhanced defendant’s entitlement to equitable distribution of the marital assets located in New York; (2) promptly obtain and serve a temporary restraining order on Citibank/Smith Barney, which would have prevented Nicholas from removing funds which, she alleged, constituted marital property, from an account held at that institution; (3) secure an expert appraiser to testify at the inquest in the Supreme Court action regarding the appreciation, during the marriage, of the value of the marital residence, which had been owned by Nicholas prior to their 1998 marriage, in order to demonstrate defendant’s entitlement to an interest therein; and (4) submit to the Supreme Court the invoices pertaining to his representation of defendant, resulting in the court’s denial of her application for an award of attorney’s fees.”

“Contrary to the District Court’s determination dismissing so much of the counterclaim as was based upon plaintiff’s failure to retain an appraiser, promptly restrain the Citibank/Smith Barney account, and annex his invoices to the counsel fee application, we find that plaintiff failed to establish his prima facie entitlement to judgment as a matter of law, as his submissions in support of his motion with respect to these three alleged instances did not demonstrate that defendant will be unable to prove either that plaintiff did not exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession or that the breach of this duty proximately caused defendant’s damages. Consequently, so much of plaintiff’s motion as sought summary judgment dismissing defendant’s counterclaim based upon these three alleged instances of legal malpractice should have been denied.”

A straight forward allegation of legal malpractice is the first step in a successful claim.  A second step is connecting the described shortcomings and the claimed damages.  In Lisi v Lowenstein Sandler LLP  2017 NY Slip Op 32411(U)  November 16, 2017  Supreme Court, New York County
Docket Number: 160298/2016  Judge Shirley Werner Kornreich finds that where a claim might be stated, damages cannot be linked to the shortcomings.

“In May 2012, Lisi hired LS, a law firm with its principal office in New York City, to negotiate the terms of his employment as a Senior Vice President with A vadel Pharmaceuticals flk/a as Flame! Technologies SA and Eclat Pharmaceuticals, LLC (Flame!). AC iii! 2, 9-11; Dkt. 49 (Retainer Letter). Defendants Defalco and Greenbaum were partners at LS; Defalco was the LS attorney primarily responsible for representing Lisi in the negotiations with Flame!. AC ml 3- 6; Dkt. 49 at 1. ”

“On May 17, 2012, Defalco sent Lisi an email (the Defalco Email) concerning the ongoing negotiations, attaching a revised draft of Lisi’s employment agreement. Dkt. 22 (Defalco Email); Dkt. 60 (copy of DeFalco Email with attachments included). In the email, DeFalco discussed the possibility of making an 83(b) election under the Internal Revenue Code with respect to a grant of restricted stock that was part of Lisi’ s compensation under the attached draft of his employment agreement. 2 See Defalco Email; Dkt. 60 at 6. Defalco began the discussion by informing Lisi that “restricted stock [received] in connection with the provision of services … is taxable to the recipient as compensation income (since it is received in connection with employment); i.e., ordinary income subject to payroll taxes,” based on the stock’s value less any amount paid for it. Defalco Email (emphasis in original). Lisi’s employment agreement was executed on May 28, and took effect on June 25, 2012. Employment Agreement at 1.”

“On December 8, 2016, Lisi commenced this action by filing his summons and initial complaint. Dkt. 1. He subsequently filed the AC on February 6, 2017. Dkt. 3. The AC asserts a single cause of action for legal malpractice, seeking $5,300,000 in damages. AC iii! 75-85. It alleges that LS negligently failed to advise Lisi that he would be taxed at the ordinary income rate on the increase in the value of his option shares upon exercise, rather than at the capital gains rate upon disposition of the shares. It further alleges that, but for this failure to advise, Lisi would not have been “left vulnerable to market fluctuations in the stock price of Flamel,” because he “would have” employed alternative investment strategies, that accounted for the true amount of his tax liabilities, to “receive the optimal market value for [his] Flamel shares.” AC iii! 68-83. LS moved to dismiss on March 21, 2017. Dkt. 13. The court reserved on the motion after oral argument. See Dkt. 67 (8/30/17 Tr.). ”

“Although Lisi’ s lack of records and recollection are insufficient to challenge the authenticity of the Defalco Email, the court finds that the content of the email itself does not unambiguously refute Lisi’ s allegation of professional negligence. The Defalco Email does mention stock options in passing, but not in the portion of the email that discusses the tax treatment of stock “received in connection with employment.” That portion of the email is specifically couched as a general description of the tax consequences that attach to the receipt of restricted stock. And although the email may easily be read to imply that other forms of stocksuch as non-qualified stock options-are likewise subject to ordinary income tax because they are “received in connection with employment,” that advice is never explicitly stated. Accordingly, the Defalco Email does not refute Lisi’s allegation of negligence in a manner that is “essentially undeniable.” See Amsterdam Hosp. Grp., 120 AD3d at 432. Lisi’s malpractice claim nevertheless fails because his allegations are insufficient to show that but for LS’s failure to give proper tax advice, his trading losses would have been avoided. See Leder v Spiegel, 31 AD3d 266, 268 (I st Dept 2006) (“The failure to demonstrate proximate cause mandates the dismissal of a legal malpractice action regardles~ of whether the attorney was negligent.”). Lisi does not (and cannot) allege that LS’s failure to advise him had any effect on the nature of his tax liability-the exercise of his options was always going to be subject to ordinary income tax. He does not allege that he would not have executed the separation agreement had he been properly advised. Rather, Lisi’s theory of loss causation is that, absent proper tax advice, he was unaware of the true amount of the tax liability incurred by the exercise of his options, and was therefore unable to strategically manage his investment post-exercise in a manner that minimized market risk and allowed him to realize “the optimal market value” of his shares. AC iii! 68-71. He acknowledges that the exercise of his options exposed him to “market fluctuations in the stock price of Flame!,” but asserts that, with proper advice, he would not have been left vulnerable to such fluctuations because he “would have locked in his sales price for all options exercised to allow and account for the fixed exercise price and tax basis,” and “would have capitalized on the sale of the shares at a fixed and higher price.” iii! 74, 82-83. “

We’re disappointed that the legal malpractice question takes the back seat in an Appellate Division decision, but in Weiss v Phillips  2017 NY Slip Op 08209  Decided on November 21, 2017
Appellate Division, First Department  Renwick, J. whether Phillips has a claim against his attorney is a question for the future.

“In this case, plaintiff Peter Weiss seeks, among other things, a foreclosure and sale based [*2]on a Mortgage and Note Extension and Modification Agreement (CEMA)[FN1] executed by defendant Edward Phillips. Plaintiff lent $500,000 to borrowers who purported to own the real estate property they sought to mortgage [FN2]. The borrowers signed a note, in which they promised to pay the loan, and a mortgage, in which they gave the plaintiff/lender a security interest in the property they purported to own. The borrowers, however, acquired the property by fraudulent means. After the rightful owner, Phillips, reacquired the property, he executed the CEMA with the individual lender, Weiss. Pursuant to the CEMA, Phillips acknowledged Weiss’s rights under the note and mortgage; and, Weiss agreed to forbear from foreclosing on the subject property for a year, presumably to permit Phillips to obtain refinancing.

We find that the motion court properly granted Weiss summary judgment. Unlike the dissent, under the circumstances of this case, we find that Weiss’s interest in the property as a mortgagee was not rendered null and void because his borrowers, the mortgagors, had acquired the property by fraudulent means. In addition, we find that Weiss met his burden for summary judgment, on his claim for foreclosure and sale, by submitting the Mortgage and CEMA, along with undisputed evidence establishing both the existence of the note, which obviated the need to submit the note as proof that Weiss had the right to foreclose, and the nonpayment.”

“In this case, the complaint seeks a foreclosure and sale based on the CEMA and the mortgage encumbering the subject property. As indicated, under the CEMA, as the “new owner,” Phillips ratified and affirmed all the terms of the note and mortgage and warranted that there were no deductions, counterclaims, defenses, and/or setoffs to any obligations under the note. When the CEMA’s extension period expired, without complete payment, Weiss commenced this action. Under these circumstances, Weiss established the allegations of the complaint by submitting the CEMA and the mortgage contract, along with unchallenged [*5]deposition testimony of the existence of the note and nonpayment.

Unlike the dissent, we do not view this action as a typical mortgage foreclosure action. In a typical mortgage foreclosure transaction, a prima facie case is based on production of the unpaid note and mortgage, which establishes that the plaintiff is entitled to foreclose on the unpaid note. A prima facie case is established here, however, by plaintiff’s submission of the mortgage and the CEMA, in which Phillips acknowledges the existence and validity of the unpaid note and mortgage, as well as the deposition testimony in which the existence of the note is unchallenged (see Seaway Capital Corp. v 500 Sterling Realty Corp., 94 AD3d 856 [2d Dept 2012]).

We are not persuaded by the dissent’s argument that UCC 3-804 mandates a different result. As fully explained below, the dissent takes UCC 3-804 out of context. UCC 3-804 allows one to maintain an action as a “holder” on a promissory note even though the instrument has been lost or destroyed. The section does not apply here where it is established that plaintiff has the right to sue on the note as the undisputed “holder” of the note.[FN5]“

“To be clear, a deed may be cancelled because it is void or because it is voidable. The difference, however, between a void deed and a voidable deed is important under the law because it affects a party’s ability to defend against a future purchaser or encumbrancer for value. A void real estate transaction is one where the law deems that no transfer actually occurred (Faison v Lewis, 25 NY3d 220, 225 [2015]). Accordingly, if the deed is void, it does not pass title and cannot be enforced even if title is later acquired by a bona fide purchaser (id.; ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d 801, 803 [2d Dept 2012]). Similarly, a lender who takes a mortgage to a property subject to a void deed does not have anything to mortgage, so the lender’s mortgage is invalid as well (Cruz v Cruz, 37 AD3d 754 [2d Dept 2007]; Yin Wu v Wu, 288 AD2d 104, 105 [1st Dept 2001]). In contrast, a voidable real estate transaction is one where a transfer is deemed to have occurred, but can be revoked. In that situation the deed is only voidable (Faison v Lewis, 25 NY3d at 225).

The question becomes whether the deed by which Welch-Ford and Smith acquired the subject real estate was a void deed or a voidable deed. Forged deeds and/or encumbrances are those executed under false pretenses, and are void ab initio (see Marden v Dorthy, 160 NY 39 [1899]; GMAC Mtge. Corp. v Chan, 56 AD3d 521, 522 [2d Dept 2008]; Cruz v Cruz, 37 AD3d 754). The interests of subsequent bona fide purchasers or encumbrancers for value are thus not protected under Real Property Law § 266 [FN7] when their title is derived from a forged deed or one that is the product of false pretenses (see Ameriquest Mtge. Co. v Gaffney, 41 AD3d 750 [2d Dept 2007]; LaSalle Bank Natl. Assn. v Ally, 39 AD3d 597, 599-600 [2d Dept 2007]). In contrast, a fraudulently induced deed is merely voidable, not void (see Marden v Dorthy, 160 NY at 150; Dalessio v Kressler, 6 AD3d 57, 61 [2d Dept 2004]; Yin Wu v Wu, 288 AD2d at 105).”

The theme of time slipping away is fodder for song lyrics in all genres.  In legal malpractice as well as in professional malpractice it is a constant theme.  Things happen and clients do not discover it immediately; the objective wrongfulness of conduct does not become immediately apparent.  Cases are started too late, as in Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP  2017 NY Slip Op 07764  Decided on November 8, 2017  Appellate Division, Second Department.  With little explanation (not even a discussion of the type of representation), the AD2 affirms the dismissal of this pro-se case.

“Actions to recover damages for malpractice against nonmedical professionals are governed by the three-year statute of limitations set forth in CPLR 214(6) (see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 539; 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704, 705). A cause of action alleging professional malpractice against an accountant accrues upon the client’s receipt of the accountant’s work product (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 8; Ackerman v Price Waterhouse, 84 NY2d 535, 541; CRC Litig. Trust v Marcum, LLP, 132 AD3d 938, 939; Rodeo Family Enters., LLC v Matte, 99 AD3d 781, 783).

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted by the plaintiff Madeleine E. Schwartz (hereinafter the plaintiff) by demonstrating that the professional malpractice causes of action accrued more than three years prior to the commencement of the action (see Meredith v Siben & Siben, LLP, 130 AD3d 791, 792; Farage v Ehrenberg, 124 AD3d 159, 164; Napoli v Moisan Architects, 77 AD3d 895, 895-896). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled by the continuous representation doctrine (see Rodeo Family Enters., LLC v Matte, 99 AD3d at 784; M.G. McLaren, P.C. v Massand Eng’g, L.S., P.C., 51 AD3d 878, 878; Giarratano v Silver, 46 AD3d 1053, 1055; Booth v Kriegel, 36 AD3d 312, 314; Mitschele v Schultz, 36 AD3d 249, 253).”

Last week we discussed how the First Department differs in its handling of Judiciary Law § 487 cases.  Here in Gorbatov v Tsirelman  2017 NY Slip Op 07979  Decided on November 15, 2017
Appellate Division, Second Department  is a further lesson, this time from the Second Department.  Conspicuously missing here is any language of delinquency.  The Second Department has considerably lower standards upon which to determine whether a JL § 487 case is tenable.

“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.”

“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). “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; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434). 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). “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; see Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120). “[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 [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), 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; cf. Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 912). 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; Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347), 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). 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; Giunta’s Meat Farms, Inc. v Pina Constr. Corp., 89 AD3d 799, 800).

 

Legal malpractice, of course, deals with mistakes make by attorneys.  Attorneys should not make mistakes, but being human, they do.  Mistakes can sometimes be fixed, sometimes not.  For Pro-se plaintiffs, mistakes come more often, and quick-fixes are not as common.  Stevens v Law Off. of Blank & Star, PLLC  2017 NY Slip Op 08030  Decided on November 15, 2017  Appellate Division, Second Department is an example of a series of errors that end in dismissal of what might be a meritorious case.  It appears that the Pro-se Plaintiff commenced an action but did not file an affidavit of service.  A second action was then commenced.  A default was sought on the first case.  Both were then dismissed.

“On October 14, 2014, the plaintiff, proceeding pro se, commenced an action against the defendant (hereinafter the first action), inter alia, to recover damages for legal malpractice. The plaintiff alleged that the defendant’s failure to timely serve a notice of claim in an underlying personal injury action constituted legal malpractice. The plaintiff sought damages in the amount of $12,000,000.

On January 29, 2015, the plaintiff, proceeding pro se, commenced this action against the defendant based on the same facts and seeking relief identical to the relief sought in the first action. Shortly thereafter, and before serving the summons and complaint on the defendant, the plaintiff moved for leave to enter a default judgment against the defendant. The defendant cross-moved pursuant to CPLR 3211(a)(1), (4), (5), and (7) to dismiss the complaint. The Supreme Court denied the plaintiff’s motion and granted the defendant’s cross motion. The plaintiff appeals.

Contrary to the plaintiff’s contention, the Supreme Court properly denied his motion for leave to enter a default judgment against the defendant. A plaintiff moving for the entry of a default judgment must “file proof of service of the summons and the complaint, . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due” (CPLR 3215[f]). Since the plaintiff failed to submit proof of service of process on the defendant and the defendant’s subsequent failure to appear, the plaintiff failed to satisfy the requirements for demonstrating his entitlement to enter a default judgment against the defendant.

The Supreme Court also properly granted the defendant’s cross motion pursuant to [*2]CPLR 3211(a) to dismiss the complaint. “Where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same, a court has broad discretion in determining whether an action should be dismissed pursuant to CPLR 3211(a)(4) on the ground that there is another action pending” (Scottsdale Ins. Co. v Indemnity Ins. Corp. RRG, 110 AD3d 783, 784; see Whitney v Whitney, 57 NY2d 731, 732; DAIJ, Inc. v Roth, 85 AD3d 959, 959). “The critical element is that both suits arise out of the same subject matter or series of alleged wrongs” (Cherico, Cherico & Assoc. v Midollo, 67 AD3d 622, 622 [internal quotation marks omitted]). This action and the first action, which was pending at the time the order appealed from was issued, arose from the same subject matter and alleged wrongs, and involved the same parties. Accordingly, the court providently exercised its discretion in granting the defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211(a)(4) (see Matter of Willnus, 101 AD3d 1036, 1037; DAIJ, Inc. v Roth, 85 AD3d at 960; Cherico, Cherico & Assoc. v Midollo, 67 AD3d at 623).”