Negligence is negligence, no?  Well, they are different as Amendola v Brookhaven Health Care Facility, LLC

2017 NY Slip Op 04090 [150 AD3d 1061]  May 24, 2017  Appellate Division, Second Department points out.

“The plaintiff Raymond Amendola (hereinafter the plaintiff), and his wife suing derivatively, commenced this action against Brookhaven Health Care Facility, LLC (hereinafter Brookhaven), and The McGuire Group (hereinafter together the defendants) to recover damages for personal injuries the plaintiff contends he sustained during a physical therapy session conducted by a physical therapist at Brookhaven. Following discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court denied the defendants’ motion.

The Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for ordinary negligence, as the allegations in the complaint only support a cause of action to recover damages for professional malpractice (see Glasgow v Chou, 33 AD3d 959, 961 [2006]; see also D’Elia v Menorah Home & Hosp. for the Aged & Infirm, 51 AD3d 848, 850 [2008]). However, the court properly determined that the defendants failed to establish, prima facie, that they were not vicariously liable for the alleged professional malpractice of the physical therapists or physical therapy assistants administering rehabilitation services at their facility (see Sirignano v Jencik, 123 AD3d 1002, 1003 [2014]; Rivera v Fenix Car Serv. Corp., 81 AD3d 622, 623-624 [2011]; see also Diller v Munzer, 141 AD3d 628, 629 [2016]; Loaiza v Lam, 107 AD3d 951, 953 [2013]).

With respect to the allegations of professional malpractice, although the defendants [*2]made a prima facie showing that they did not deviate from good and accepted standards of physical therapy practice, through the submission of deposition testimony, medical records, and the affidavit of a licensed physical therapist (see Shank v Mehling, 84 AD3d 776, 777-778 [2011]), the affidavit of a licensed physical therapist submitted by the plaintiffs in opposition was sufficient to raise a triable issue of fact as to whether the treatment departed from good and accepted physical therapy practice (see Nisanov v Khulpateea, 137 AD3d 1091, 1094 [2016]; Guctas v Pessolano, 132 AD3d 632, 633 [2015]). Summary judgment is not appropriate in a malpractice action where, as here, the parties adduce conflicting expert opinions (see Henry v Sunrise Manor Ctr. for Nursing & Rehabilitation, 147 AD3d 739 [2017]; Elmes v Yelon, 140 AD3d 1009, 1011 [2016]).”

Legal malpractice cases, as we have said, cover events and issues all over the world.  Here, a land-owner was unhappy about trespassers over his property, trying to get to a beach.  The annoyance led to litigation, to appeals, to legal malpractice and judiciary law § 487 claims.  Palmieri v Perry, Van Etten, Rozanski & Prima Vera, LLP  2017 NY Slip Op 32694(U)  December 7, 2017
Supreme Court, Suffolk County  Docket Number: 15-18431  Judge: David T. Reilly is just another example of the extreme reach of legal malpractice and JL § 487 cases.

“The genesis of this action (Palmieri IT) lies in another matter entitled Paul Palmieri v. Town of Babylon, Suffolk County Supreme Court, Index No. 17598-1999 (Palmieri l). In Palmieri I, which has endured its own tortured history, the plaintiff commenced an action against the Town of Babylon seeking to recover damages for alleged trespass by unspecified individuals onto his property using a public access way from a public road. Plaintiff lives near the end off  Little East Neck Road which terminates at the Great South Bay. It is from that terminus that plaintiff alleges the unspecified individuals gained access to his property.

A short recitation of the procedural history of Palmieri I, as culled from the record currently before the Court, is necessary for a full understanding of the instant determination. Palmieri I was seemingly settled when the parties entered into a Stipulation dated July 17, 2004 which was filed in the County Clerk’s office on August 6, 2004. According to the Stipulation, the Town agreed to erect or cause to be erected an eight (8′) foot high chain-link fence having a gate secured by a lock essentially blocking off public access to plaintiff’s property. The fence was to be built within sixty (60) days of the signing of the Stipulation. On July 24, 2006 the Town of Babylon moved to vacate that Stipulation based upon their contention that the proposed fence was illegal because it blocked navigable waters. A Justice of this Court [Cohalan, J.l agreed and granted that motion on June 11 2007. Plaintiff then appealed to the Appellate Division, Second Department. The Appellate Division reversed this Court in a decision dated November 25, 2008. At that point in the litigation rather than comply with its obligations under the Stipulation, the Town of Babylon filed a motion pursuant to CPLR §3211 seeking dismissal of the plaintiffs’ Complaint. That motion was denied and the decision affirmed (see Palmieri v. Town of Babylon, 87 AD3d 625 [2011]). Of note, the Appellate Division, Second Department declined to impose sanctions against the Town of Babylon, as requested by the plaintiff. This Court is unaware of what, if anything, occurred in the next six (6) years, however, on May 16, 2014, plaintiff moved for contempt against the Town of Babylon, the Supervisor and the Town Council. It appears from the record before the Court that the defendants therein claimed that the Town’s failure to erect the fence was due to the changing topography or the subject area in that Hurricane Sandy caused sufficient erosion such that the location of the proposed fence was now underwater thereby invoking the jurisdiction of the Department of Environmental Conservation (DEC). The Town defendants maintained that approval from that agency was now necessary before the fence could be erected. On July 29th and 31st, 2015 that matter came to a hearing and in a decision dated October 29, 2015 the Court (Hudson, J.) denied the application for contempt based solely on an insufficiency of proof, but warned the parties that they should move expeditiously to fulfill the obligations imposed by the Stipulation.”

“After careful consideration, the Court finds that the plaintiffs causes of action sounding in tortious interference with a contract and violation of Judiciary Law §487 must be dismissed based upon the doctrine of collateral estoppel. Throughout the plaintiffs’ Complaint arc allegations that the defendants herein engaged in a scheme with the Town of Babylon to deny the plaintiff the relief afforded him within the 2004 Stipulation of Settlement. As the Palmieri I litigation endured the torturous history evidenced by the present record before the Court. certain factors occurred which operated to stall the Town’s obligation to construct the fence at issue, most notably the motions and appeals which litter the record. “

It doesn’t get much simpler than a legal malpractice claim that the attorneys failed to answer, and a default judgment was entered.  When does the statute of limitations commence?  Billiard Balls Mgt., LLC v Mintzer Sarowitz Zeris Ledva & Meyers, LLP  2018 NY Slip Op 00018
Decided on January 2, 2018  Appellate Division, First Department gives something of an answer.

“Plaintiff Billiard Balls Management (Billiard) sufficiently stated a claim for legal malpractice. The record clearly establishes an attorney-client relationship, as defendant entered into two stipulations extending Billiard’s time to answer in an underlying personal injury action, which were filed in court, and represented itself as Billiard’s attorney (see Cooke v Laidlaw Adams & Peck, 126 AD2d 453, 455 [1st Dept 1987]; compare Pellegrino v Oppenheimer & Co., Inc., 49 AD3d 94, 99 [1st Dept 2008]).

The motion court also properly determined that the action was timely commenced (CPLR 214[6]). Assuming that the malpractice claim accrued on January 11, 2013, when the time to answer the underlying complaint expired, or the earlier date of December 28, 2012, when the insurer disclaimed coverage, Billiard was prevented from exercising any legal remedy by virtue of the underlying motion court’s order, which denied the underlying plaintiff’s motion for a default judgment against Billiard, until that order was subsequently reversed by the Second Department in September 2015 (Gershman v Ahmad, 131 AD3d 1104 [2d Dept 2015]; see Coyle v Lefkowitz, 89 AD3d 1054, 1056 [2d Dept 2011]; Brown v State of New York, 250 AD2d 314, 319 [3d Dept 1998]).”

The concept is familiar, but the name of this particular doctrine is new to us.  The First Department, in  Palmeri v Willkie Farr & Gallagher LLP  Decided on December 28, 2017 enunciated the following:

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

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

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

Attorney fee disputes reflexively lead to legal malpractice claims.  While that is true, the concept that all legal malpractice claims are dubious strongly overshadows the unassailable fact that attorneys are human, and that without any doubt, humans make mistakes.  That being said, Louis F. Burke PC v Aezah 2017 NY Slip Op 32670(U) December 14, 2017 Supreme Court, New York County Docket Number: 654778/2016 Judge: David B. Cohen is an example of not too much substance in a counterclaim.

” The Complaint alleges that defendants had made a payment on October 17, 2014, there remained an outstanding balance of $42,937.50. As plaintiff was still the attorney of record, it sought information from defendants relating to new counsel. As such information was not provided, LFB remained as the attorney of record, and incurred an additional $17,520 in legal fees until relieved by the Court in May of 2015, leaving a total outstanding balance of $60,457.50. ‘ Plaintiff sent and defendants received invoices on July: 28, 2015, September 10, 2015, and April 21, 2016 of the outstanding balance. On October 20, 2016, plaintiff filed the instant matter seeking to recover lost fees and alleged breach of contract, quantum meruit and accounts stated. Defendant answered and asserted six counterclaims for (1) breach of contract, (2) ordinary ; .! negligence, (3) breach of fiduciary duty, (4) professional malpractice, 1 (5) violation of Judiciary : Law, 487, and (6) “reasonable legal fees.” In the instant motion, plaintiff moved for partial summary judgment on the fourth cause of action of account stated and for dismissal pursuant to ; CPLR 3211 (a)(l) and (7) of all counterclaims. Following several attempts at resolving the motion and the action in its entirety, plaintiff has withdrawn the summary judgment portion of this motion and now only seeks the dismissal of the counterclaims portion. ”

“Although defendants have tried to re-write the, counterclaims, the first counterclaim is for ‘I breach of contract arising out plaintiff’s actions that allegedly led to defendants not having ·; i prop~r legal representation. The breach of contract cl~im is dismissed as duplicative of the malpractice counterclaim (Mamoon v Dot Net inc., 135 AD3d 656, 658 [1st Dept 2016]”

“Similarly, the second counterclaim for negligence is dismissed as duplicative of the legal malpractice claim (see Cusack v Greenberg Traurig. LLP, 109 AD3d 747, 748 [1st Dept 2013]. This point is not contested by defendants. In addition defendants have not stated any facts that give rise even to an allegation of negligence. ”

“The fifth cause of action is also dismissed. Juiciary Law § 487 provides recourse only 1! where there is a chronic and extreme pattern of legal delinquency (.Jaroslawicz v Cohen, 12 AD3d 16012004]; see also Dinluder v Med. Liab Mut. Ins. Co., 92 AD3d 480 [1st Dept 2012]. I! Givi;1g claimant every favorable inference, the counterclaims sets forth but one alleged misrepresentation by defendant and accordingly docs i~ot allege a cognizable claim under Judiciary Law § 487 (Solow 1\{‘?f. Corp. v Seltzer, 18 AD3d 399 [1st Dept 2005]. Based upon the forgoing, defendants’ counterclaim for attorney’s fees;is also dismissed. “{

Although the headline may sound exhortatory, it is rather a recitation of when a Judiciary Law § 487 claim may properly lie against a attorney-client, rather than an attorney who represents a client. Witty v 1725 Fifth Ave. Corp.   2017 NY Slip Op 32624(U)   December 12, 2017   Supreme Court, Suffolk County   Docket Number: 02509-17   Judge: Elizabeth H. Emerson tells us that JL 487 will not apply when the client and not the offending attorney happens merely to be an attorney.  The Judge says it much better:

“Judiciary Law § 487 provides that an attorney who is guilty of any deceit or collusion, or who consents to any deceit or collusion, with intent to deceive the court or any party is guilty of a misdemeanor and that the injured party may recover treble damages from such attorney in a civil action. Contrary to the plaintiff’s contentions, Judiciary Law§ 487 only applies to an attorney who is acting in his or her capacity as an attorney. It does not apply to a party who is represented by counsel and who happens to be an attorney (Oakes v Muka, 56 AD3d 1057, 1058). Frampton and Veltry were represented by counsel in the note action. The mere fact that they are attorneys is insufficient to impose liability on them (see , Crown Assocs., Inc. v Zot, LLC, 83 AD3d 765, 768, citing Oakes v Muka, supra). The plaintiff does not specify what documents, if any, were concealed, withheld, or not produced by Frampton and Veltry. The record in the note action reveals that complete copies of the note, the agreement of sale, and the mortgage were attached to the plaintiffs complaint. It, therefore, appears that she was in possession of all of the relevant documents. The plaintiff contends that Frampton and Veltry deceived her by sending her checks for less than the full amount of the monthly payments due under the note. The plaintiff is alleging a breach of contract, specifically a breach of the terms of the promissory note. When, as here, the plaintiff is essentially seeking enforcement of her bargain, she should proceed under a contract theory (see, Sommer v Federal Signal Corp., 79 NY2d 540, 552, citing ClarkFitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389-390). The plaintiff has already pleaded a cause of action for breach of contract in the note action. Accordingly, the third cause of action is dismissed. “

Malpractice, as delineated from mere negligence, is that of a “professional toward a person for whom a service is rendered.  Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D .2d 624 (I 51 Dept 1999). ”  The statute of limitations for all professionals other than physicians is 3 years.  It’s 2.5 years for physicians.  How to prove that the claimed wrong too place more than three years prior to commencement of the malpractice suit is an art.  Judge Kern, in one of her last Supreme Court cases prior to her elevation to the Appellate Division discusses how to do it in Bose v Think Constr. LLC 2017 NY Slip Op 30944(U) May 4, 2017 Supreme Court, New York County Docket Number: 154628/2015 Judge: Cynthia S. Kern.

“”A defendant who seeks dismissal ofa complaint pursuant to CPLR § 321 l(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden ofproving,primafacie, that the time in which to commence an action has expired.” Texeria v. BAB Nuclear Radiology, P.C., 43 A.D.3d 403, 405 (2d Dept 2007). Pursuant to CPLR § 214(6), “an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of whether the underlying theory is based on contract or tort” must be commenced within three years. Malpractice is the “negligence of a professional toward a person for whom a service is rendered.” Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D .2d 624 (I 51 Dept 1999). It is well-settled that structural engineers are professionals for the purposes ofCPLR § 214(6), see Travelers lndem. Co. v. Zeff Design, 60 A.D.3d 453 (1st Dept 2009), and that “a claim for professional malpractice against an engineer … accrues upon the completion of performance under the contract and the consequent termination of the parties’ professional relationship,” Town of Wawarsing v. Camp, Dresser & McKee, Inc., 49 A.D.3d 1100, 1101-02 (3d Dept 2008). Here, this court finds that the moving defendants’ motion to dismiss plaintiffs’ negligence/malpractice claim is denied on the ground that the moving defendants have failed to establish, primafacie, that such claim is time-barred. In support of their motion, the moving defendants provide the affirmation of their counsel in which he conclusorily affirms that the moving defendants completed their services on the Project by October 2010, before the underpinning work began on the Project. However, such affirmation is insufficient to establish,primafacie, that plaintiffs’ negligence/malpractice claim is time-barred, without some other admissible evidence in support thereof. See Banks v. Auerbach, 56 A.D.2d 819, 819 (!”Dept J 977)(denying defendant’s motion to dismiss on the basis of statute oflimitations on the ground that “[t]he factual basis for defendant’s motion rests entirely on an affirmation of an attorney who [does not have] personal knowledge of the facts …. “) The moving defendants have failed to provide any admissible evidence, such as an affidavit or testimony of someone with personal knowledge, of when the moving defendants actually completed their services on the Project. The moving defendants have provided the affidavit of defendant Pensiero but nowhere in his affidavit does Pensiero affirm that the moving defendants completed their services on a specific date nor does he even discuss the completion of services on the Project. Rather, Pensiero merely affirms that the work performed by the moving defendants was rendered “as outlined in the proposal/contract.” However, an examination of such proposal/contract does not specify a timeframe for completion of the work on the Project. Moreover, plaintiffs provide their affidavit in which they affirm that the moving defendants were still performing their services on the Project as late as August 2012 when they performed a site visit to the Project and prepared a report in accordance with the proposal/contract. “

In this season, gifts are being shuttled around, and many look to receive. Board of Mgrs. of Brightwater Towers Condominium v SNS Org., Ltd.   2017 NY Slip Op 31791(U)   August 24, 2017   Supreme Court, Kings County Docket Number: 503102/16   Judge: Lawrence S. Knipel is an example what happens when one asks correctly for a second chance.  Rather than an Oliver Twist outcome, the Court granted leave to replead.

“The plaintiff Board of Managers of Brightwater Towers Condominium (the plaintiff) moves for an order ( 1) pursuant to CPLR 2221 ( d), for leave to reargue the branch of the motion (the prior motion) of the defendants New York Engineering Associates, P.C., and Neal M. Rudikoff, P.E. (the defendants), which was for an order, pursuant to CPLR 3211 (a) (7), dismissing the plaintiffs original complaint as against them for failure to state a claim, and (2) pursuant to CPLR 3025 (b ), granting it leave to serve its first amended verified complaint. By decision, order, and judgment, dated Feb. 17, 2017 (the prior order), the Court granted the defendants’ prior motion to the extent of dismissing the plaintiffs original complaint as against them for failure to state a claim. The plaintiffs original complaint, dated Mar. 3, 2016, asserted, as against the defendants, a single cause of action for professional malpractice (see Original Complaint, iii! 76-89 [Second Cause of Action]). The original complaint, as more fully set forth in the margin, 1 did not allege that “the underlying relationship between the parties [was] one of privity of contract, or that the bond between them [was] so close as to be the functional equivalent of privity” (Perfetto v CEA Engineers, P.C., 114 AD3d 835, 836 [2d Dept 2014]). In its opposition to the defendants’ prior motion, the plaintiff, by counsel, raised the theory of privity but did not, at that time, move for leave to amend its original complaint to plead that theory…”

“The prior order, insofar as it addressed the plaintiffs claims against the defendants as pleaded in the original complaint, was correct, albeit with one caveat. It should have granted the plaintiff leave to replead. Accordingly, leave to reargue is granted and, upon reargument, the prior order is adhered to, subject to granting the plaintiff leave to rep lead as more fully set forth in the decretal paragraphs below. The remaining branch of the plaintiffs motion which is for leave to serve its first amended complaint is decided as set forth in the decretal paragraphs below. “