The expert comes into trial and is subject to cross-examination.  When that cross-examination hits home, and the court precludes some of the expert testimony, or fails to qualify the expert, or the expert has to admit that it did not examine or consider some piece of evidence, then things will not go well for the proponent.  What does the proponent then do?

Toaspern v Laduca Law Firm LLP  2017 NY Slip Op 07374  Decided on October 19, 2017
Appellate Division, Third Department is the example of what happens when the expert sues for an unpaid fee.  There are qualified privileges and limits in cases against experts.

“Defendants — an attorney and his law firm — represented a married couple in an action against the Harley-Davidson Motor Company Group in relation to an accident that occurred when the couple’s motorcycle lost power (see Smalley v Harley-Davidson Motor Co. Group LLC, 134 AD3d 1490 [2015]; Smalley v Harley-Davidson Motor Co., Inc., 115 AD3d 1369 [2014]). In connection with that action, defendants retained plaintiff, an accident reconstructionist, to provide expert services and testimony. Plaintiff intermittently consulted with defendants between 2006 and 2013. During the trial of that action, plaintiff testified that he had examined a motorcycle similar to the one at issue but had not disclosed this inspection as a basis for his expert opinion. That testimony prompted Supreme Court to grant Harley-Davidson’s motion for a mistrial.

Following the mistrial, defendants refused to pay the remainder of plaintiff’s bill, prompting him to commence this action to recover the fees for his expert services. Defendants served an answer containing two counterclaims. The first counterclaim alleged that plaintiff “failed to both review and understand [the] records provided to him,” which resulted in plaintiff being “unable to answer critical questions posed to him regarding the electrical testing conducted [*2]by Harley[-]Davidson,” which in turn resulted in Supreme Court deeming a portion of the trial evidence inadmissible. The second counterclaim alleged that plaintiff referred to precluded evidence during his testimony, despite warnings from the court that he could not do so. The second counterclaim further alleged that plaintiff testified that a few weeks before trial he viewed a motorcycle similar to the one at issue, but he did not include in his expert disclosure that examination of a motorcycle formed part of the basis for his opinion testimony. Plaintiff moved to dismiss defendants’ counterclaims, arguing, among other things, that the doctrine of absolute witness immunity shielded him from liability for damages arising from his trial testimony. Defendants cross-moved for partial summary judgment.”

“A “witness at a judicial or quasi-judicial proceeding enjoys an absolute privilege with respect to his or her testimony,” as long as the statements made are material to the issues to be resolved therein (Pfeiffer v Hoffman, 251 AD2d 94, 95 [1998]; accord Martinson v Blau, 292 AD2d 234, 235 [2002]; see Youmans v Smith, 153 NY 214, 219 [1897]; Wilson v Erra, 94 AD3d 756, 756-757 [2012]). The purposes of this privilege are to further the truth-seeking process at trial and encourage cooperation of witnesses, particularly with regard to expert witnesses, so that they can discharge their public duty freely “with knowledge that they will be insulated from the harassment and financial hazard of subsequent litigation” (Tolisano v Texon, 144 AD2d 267, 271 [1988, Smith, J., dissenting], revd for reasons stated in dissent 75 NY2d 732 [1989]; see Rehberg v Paulk, 566 US 356, 367 [2012]).

Defendants argue that the witness privilege does not bar actions against a party’s own expert for breach of contract or malpractice, just as a party can proceed against his or her attorney for legal malpractice based upon conduct that occurred during a trial. Plaintiff argues that an expert witness is absolutely immune from liability for claims that arise out of his or her testimony provided in prior litigation.

We conclude that a party cannot hold its own expert liable for the content of his or her testimony in prior litigation, but may pursue claims for negligence, professional malpractice, breach of contract or similar causes of action due to the expert’s alleged failure to properly prepare for the trial or to perform agreed-upon litigation-related services. Although an expert may not be held liable for the substance of his or her prior testimony or the opinions expressed therein, such testimony may be used as evidence in connection with these other types of causes of action. As the Court of Appeals recently stated when addressing the witness privilege in another context, “[t]he test is ‘whether the plaintiff can make out the elements of his [or her] . . . claim without resorting to the . . . testimony. If the claim exists independently of the . . . testimony, it is not “based on” that testimony . . . [but] if the claim requires the . . . testimony, the defendant enjoys absolute immunity'” (De Lourdes Torres v Jones, 26 NY3d 742, 770 [2016], quoting Coggins v Buonora, 776 F3d 108, 113 [2d Cir 2015], cert denied 575 US ___, 135 S Ct 2335 [2015]; cf. Rehberg v Paulk, 566 US at 370 n 1). Stated otherwise, a plaintiff may not assert a claim that is entirely based on the expert’s prior testimony — and nothing more — but may assert a claim that is viable apart from, but supported by, that testimony (see De Lourdes Torres v Jones, 26 NY3d at 770 [precluding the subjection of a witness to potential liability for prior testimony [*3]”alone”]).”

Either Volvo owned the car and leased it to the auto accident defendant or it did not.  Simple issue, no?  How did this simple issue morph into an auto accident trial where Jacoby & Meyers represented plaintiff and the proofs were not in place before the jury.  More puzzling, how did this proof elude the legal malpractice case thereafter?

Verdi v Jacoby & Meyers, LLP  2017 NY Slip Op 07294  Decided on October 18, 2017  Appellate Division, Second Department seems to be more about missed opportunities than anything else.

“In this legal malpractice action, the plaintiff alleges that Volvo Financial North America (hereinafter Volvo) was the lessor of a vehicle that struck the plaintiff’s vehicle in the rear in April 2005. The accident occurred prior to the enactment of the Graves Amendment (49 USC § 30106), which exempts the owner of a leased or rented motor vehicle from liability for personal injuries resulting from the use of such vehicle ” if the owner (i) is engaged in the trade or business of renting or leasing motor vehicles and (ii) engaged in no negligence or criminal wrongdoing'” (Anglero v Hanif, 140 AD3d 905, 906, quoting Bravo v Vargas, 113 AD3d 579, 580). The plaintiff further alleges that the defendants deviated from good and accepted legal practice in neglecting to name Volvo as a defendant in a personal injury action they commenced on behalf of the plaintiff.

The legal malpractice action proceeded to a bifurcated trial. Following the close of the plaintiff’s proof on the issue of liability, the defendants moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. The defendants argued, inter alia, that the plaintiff failed to establish that the offending vehicle was owned by or leased from Volvo. The Supreme Court granted the defendants’ motion on the record during proceedings held on December 11, 2013. More than a month later, the plaintiff moved for leave to enlarge his time to make a posttrial motion. While that motion was pending, the plaintiff made a posttrial motion, among other things, for judgment in his favor as a matter of law on the issue of liability. The court denied the motion to enlarge the time to make a posttrial motion, and denied the posttrial motion, in effect, as untimely. By judgment entered January 8, 2015, the court dismissed the complaint. The plaintiff [*2]appeals, and we affirm.

The Supreme Court properly granted the defendants’ motion for a directed verdict pursuant to CPLR 4401. ” A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party'” (Geeta Temple-Ashram v Satyanandji, 142 AD3d 1132, 1134, quoting Szczerbiak v Pilat, 90 NY2d 553, 556; accord Clarke v Phillips, 112 AD3d 872, 874). To establish a cause of action to recover damages for legal malpractice, a plaintiff must establish the elements of proximate cause and damages, i.e. “a plaintiff must show that but for the attorney’s negligence, he or she would have prevailed on the underlying claim” (Rau v Borenkoff, 262 AD2d 388, 389; see Di Giacomo v Michael S. Langella, P.C., 119 AD3d 636, 638), by proving “a case within a case” (McKenna v Forsyth & Forsyth, 280 AD2d 79, 82 [internal quotation marks omitted]). To prevail on a cause of action asserted pursuant to Vehicle and Traffic Law § 388, a plaintiff is required to demonstrate, among other things, that the defendant he sought to hold vicariously liable was the owner of the vehicle at the time he sustained his injury (see Vehicle and Traffic Law § 388[a]). In this action, the plaintiff failed to adduce prima facie evidence that the offending vehicle was owned by or leased from Volvo on the date of the accident (see Vehicle and Traffic Law §§ 128, 388; Godlewska v Niznikiewicz, 8 AD3d 430, 431). Given that there is no evidence that the offending vehicle was owned by a commercial lessor that could have been held vicariously liable for the plaintiff’s injuries under Vehicle and Traffic Law § 388 prior to the enactment of the Graves Amendment, the plaintiff failed to establish that he would have prevailed in an action against Volvo had one been commenced.

Moreover, despite the plaintiff’s assertions in opposition to the defendants’ CPLR 4401 motion, the record does not demonstrate that the defendants conceded that the offending vehicle was owned by or leased from Volvo. In this regard, the defendants did not admit in their answer that the vehicle was leased or that Volvo was the lessor or owner of the vehicle (see CPLR 3018[a]).

Consequently, the plaintiff failed to present a prima facie case of legal malpractice (see Dawson v Schoenberg, 129 AD3d 656), and the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint was properly granted (see Szczerbiak v Pilat, 90 NY2d 553).”

 

Centre Lane Partners, LLC v Skadden, Arps, Slate, Meagher, & Flom LLP  2017 NY Slip Op 07221  Decided on October 17, 2017  Appellate Division, First Department illustrates two rules.  One of the rules is the borrowing statute, and the second is one that is both out-of-state and foreign to NY jurisprudence.

The borrowing statute, in appropriate circumstances, applies the statute of limitations of a foreign state to a NY case.  Here is is applied to the detriment of Plaintiff.

In NY a legal malpractice action is deemed to commence at the time of the mistake, not at the time of its discovery.  Oregon has a different statute, but in this case, it was deemed not to apply in plaintiff’s favor.

“Where the alleged injury is economic in nature, the cause of action is generally deemed to accrue in the state “where the plaintiff resides and sustains the economic impact of the loss” (Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 529 [1999]; see Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 71 AD3d 580 [1st Dept 2010]). Here, the debtors’ principal places of business are in Oregon, and their financial losses were allegedly incurred in that state. Contrary to plaintiffs’ claim, the motion court’s application of Oregon’s two-year statute of limitations via New York’s borrowing statute (CPLR 202) in light of, inter alia, the situs of debtors’ Oregon-based businesses, the legal relationships existing between plaintiffs, debtors and defendants, and the nature of the instant action, was proper and the result would not be “absurd,” notwithstanding defendants’ place of business being located in New York (Insurance Co. of N. Am. v ABB Power Generation, 91 NY2d 180, 186 [1997]; see 2138747 Ontario, Inc. v Samsung C & T Corp., 144 AD3d 122 [1st Dept 2016]).”

“Given such factual pleadings, the motion court properly rejected plaintiffs’ argument that [*2]Oregon’s discovery/tolling rule for legal malpractice claims rendered this malpractice action timely commenced. The court properly concluded that a reasonable person, knowing the facts that the debtors had available to them at the time of the two challenged transfers, should have been aware of a substantial possibility of defendants’ conflicted representation, as well as the harm that such negligent representation had caused, and such knowledge could not have been gained later than when the debtors filed for Chapter 7 bankruptcy on December 31, 2013 (see Kaseberg v Davis Wright Tremaine, LLP, 351 Ore 270, 277-278, 265 P3d 777, 781-782 [2011]).”

Deceased clients, deceased attorneys, and a disputed real estate transaction lead to Gourary v Green  2017 NY Slip Op 32158(U)  October 13, 2017  Supreme Court, New York County  Docket Number: 651932/10  Judge: Saliann Scarpulla.  At this point in the case, the attorneys have obtained dismissal of the legal malpractice claim, which has been affirmed by the AD1.  How might this affect the claims between two former partners in a real estate transaction?

“Gourary’s breach of fiduciary cause of action is based on Laster’s alleged failure to disclose information about the value of the property, the Corporation, and other details about the transaction underlying this dispute. Regardless of Laster’s duty as a fiduciary to disclose information that could bear on Gourary’ s consideration of the transaction, the breach of fiduciary duty claim fails because the complaint alleges that each of the nondisclosed facts was known to Green. See Complaint iii! 114, 115, 143-146. “The general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually ~communicated to [him].” Seward Park Haus. Corp. v Cohen, 287 A.D.2d 157, 167 (1st Dep’t 2001). Unless Green had an adverse interest or acquired his knowledge in a confidential setting, Gourary cannot avoid imputation. See Farr v. Newman, 14 N.Y.2d 186, 188 (1964); see also Skiff-Murray v Murray, 17 A.D.3d 807, 810 (3d Dep’t 2005) (finding that attorney’s knowledge could be imputed to a client, “regardless of when or how it was obtained unless it was acquired confidentially”). Here, the law of the case is determinative. The First Department has already found that: “[t]he Green defendants established prima facie … that the sale was consistent with Gourary’s objectives”; “[t]here [was] no evidence that Green represented Macomber and Gourary dually in connection with the negotiations for the sale of Gourary’s share of the corporation”; and “Green’s structuring of the transaction favored Gourary’s interests· over those of Macomber.” Gourary, 143 A.D.3d at 580, 581. As the First Department’s decision makes clear, Green did not totally abandon Gourary’s interest and Gourary cannot avoid imputation by claiming the adverse interest exception. See Center v·Hampton Affiliates, 66 N.Y.2d 782, 785 (1985) (stating that adverse interest exception requires a total abandonment of the principal’s interests and “cannot be invoked merely because [the agent] ha[d] a conflict of interest or because he [was] not acting primarily for his principal.”). Nor can Gourary avoid imputation by speculating, as he does in his opposition papers, that Green may have acquired the information confidentially, as Laster’s attorney. Nowhere in the complaint does Gourary allege such dual representation. Gourary’s . . dismissed malpractice claim against Green was premised entirely on Green’s alleged dual representation of Paul Gourary and Oliver Macomber. Having had a full and adequate opportvnity to litigate the issue, Gourary may not now attempt to relitigate an issue “which [was] raised and determined against [him] or which could have been raised on a prior appeal.” Moran Enters., Inc., 96 A.D.3d at 916. Therefore, accepting the complaint’s factual allegations as true, Green’s knowledge concerning the transaction, ‘ . including that the offer allegedly was substantially below market value, must be imputed to Gourary. The imputation of Green’s knowledge t.o Gourary renders plaintiffs allegations, that Laster’s concealment of material facts proximately caused an injury to Gourary, “inherently incredible.” Skillgames, LLC, 1 A.D.3d at 250. Therefore, to the extent that the breach of fiduciary duty claim is premised on Laster’s alleged failure to make material disclosures, the complaint fails to state a cause of action. See, e:g., Laub v Faessel, 297 A.D.2d 28, 31 (1st Dep’t 2002) (stating that for breach of fiduciary, “plaintiff must establish that the alleged misrepresentations or other misconduct were the direct and proximate cause of the losses claim”); Pokoik v. Pokoik, 115 A.D.3d 428, 429 ‘· (1st Dep’t 2014).”

What a difference a sentence in the retainer agreement can make.  In Matz v Aboulafia Law Firm, LLC  2017 NY Slip Op 32147(U)  October 10, 2017  Supreme Court, New York County
Docket Number: 155506/2016  Judge: Kathryn E. Freed, these words led to dismissal against the attorneys: [the Aboulafia Firm]  “is to do no further work on this claim other than starting a suit against [Marine]. If further work is required, a separate retainer agreement must be executed by [plaintiffs].”  They were then sued for failing to bring in other insurance companies.

“Whether an attorney has an obligation to investigate insurance coverage depends, in large part, on the scope of the agreed representation by the attorney. See Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34 (2d Dept 2006). Here, since the retainer agreement executed between plaintiffs and the Aboulafia firm, which constitutes “documentary evidence” within the purview of that section (see generally Fontanetta v John Doe 1, 73 AD3d 78, 84-85 [2d Dept 2010]), clearly limits the firm’s representation only to commencing a property damage claim against Marine. Doc. 26. That agreement further provides that the Aboulafia Firm “is to do no further work on this claim other than starting a suit against [Marine]. If further work is required, a separate retainer agreement must be executed by [plaintiffs].” Id. Given the express limitation on the scope of the Aboulafia firm’s representation, plaintiffs’ claim that Aboulafia and/or the Aboulafia Firm should have taken further steps to investigate other possible insurance coverage is thus without merit. See Rules of Professional Conduct (22 NYCRR 1200.0) Rule I .2(c). “

Ragunandan v Donado  2017 NY Slip Op 04306 [150 AD3d 1289]  May 31, 2017
Appellate Division, Second Department is a case in which both sides moved for summary judgment.  In Supreme Court, the attorney won.  On appeal, both lost.  Case continues; defendant is more unhappy than is plaintiff.

“Ordered that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant Marco A. Lozada for summary judgment dismissing the complaint insofar as asserted against him, and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the plaintiff.

The plaintiff commenced this action to recover damages for legal malpractice against, among others, the defendant Marco A. Lozada (hereinafter the defendant), an attorney who represented her at a real estate closing. After discovery was completed, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him. The plaintiff cross-moved for summary judgment on the complaint. The Supreme Court granted the defendant’s motion and denied the plaintiff’s cross motion.

To recover damages for legal malpractice, a plaintiff must establish, first, that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and, second, that the defendant’s failure was a proximate cause of the plaintiff’s damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Atiencia v Pinczewski, 148 AD3d 860 [2017]). In moving for summary judgment dismissing a complaint alleging legal malpractice, the defendant must establish, prima facie, the plaintiff’s inability to prove at least one of these elements (see Rojas v Paine, 125 AD3d 745, 746 [2015]). If the defendant satisfies that burden, the burden then shifts to the plaintiff to rebut the defendant’s prima facie showing (see Montero v Cohen, 104 AD3d 654, 655 [2013]; cf. Stukas v Streiter, 83 AD3d 18, 23-24 [2011]).

Here, the defendant’s motion papers addressed only the second element of a legal malpractice cause of action, contending that any deficiency in his skill and knowledge was not a [*2]proximate cause of the plaintiff’s damages. The defendant failed to establish, prima facie, the absence of proximate cause. The fact that another person may have taken advantage of the defendant’s allegedly deficient performance to cause damages to the plaintiff did not, under the circumstances of this case, establish, prima facie, that the defendant’s alleged deficiencies were not also a proximate cause of her damages (see Overseas Shipholding Group, Inc. v Proskauer Rose, LLP, 130 AD3d 415, 415 [2015]; Utica Cutlery Co. v Hiscock & Barclay, LLP, 109 AD3d 1161, 1162 [2013]). In light of the defendant’s failure to satisfy his prima facie burden on his motion for summary judgment, the Supreme Court should have denied the motion without regard to the sufficiency of the plaintiff’s opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Rojas v Paine, 125 AD3d at 746).

The Supreme Court, however, properly denied the plaintiff’s cross motion for summary judgment on the complaint. The plaintiff failed to establish, prima facie, that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Schottland v Brown Harris Stevens Brooklyn, LLC, 137 AD3d 995, 996-997 [2016]; Conklin v Owen, 72 AD3d 1006, 1007 [2010]; Eisenberger v Septimus, 44 AD3d 994, 995 [2007]). In light of the plaintiff’s failure to satisfy her prima facie burden, we need not consider the sufficiency of the defendant’s opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Eng, P.J., Rivera, Balkin and Barros, JJ., concur. ”

 

There are few really good excuses in life.  “The dog ate my ___” is one classic.  “Traffic” can serve as a reasonable excuse.  Temporary psychological inability to defend oneself does not seem like a good candidate, but in  Pierot v Leopold  2017 NY Slip Op 07154  Decided on October 11, 2017  Appellate Division, Second Department it succeeded.

“The plaintiffs commenced this action against their former attorney alleging legal malpractice, fraud, and breach of fiduciary duty. The plaintiffs alleged that the defendant, who represented them in the purchase of their home, committed malpractice by, among other things, failing to determine that the home had no access to a public road and was therefore landlocked. The defendant failed to answer the complaint, and the plaintiffs moved for leave to enter a default judgment. The Supreme Court granted the motion and, following an inquest, entered a judgment against the defendant in the total sum of $1,372,458.52, which represented the sum of the purchase price of the house and the cost of improvements the plaintiffs had made after the purchase, plus interest and costs. The defendant moved to vacate the judgment entered upon his default and for leave to serve a late answer, arguing that he had a reasonable excuse for his default and a potentially meritorious defense. The court granted the motion, and the plaintiffs appeal.”

“To prevail on a motion to vacate a judgment entered upon a default in appearing or answering the complaint, the defendant must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense to the action (see CPLR 5015[a][1]; Codoner v Bobby’s Bus Co., Inc., 85 AD3d 843, 844; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 832; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743, 743). “Other factors which the court should consider include whether the default prejudiced the opposing party, whether it was willful or evinced an intent to abandon the litigation, and whether vacating the default would serve the strong public policy of resolving cases on their merits when possible” (Dimitriadis v Visiting Nurse Serv. of N.Y., 84 AD3d 1150, 1150-1151). Mental health issues during the relevant period, established by a doctor’s affidavit, may serve as a reasonable excuse sufficient to vacate a [*2]default (see National Union Fire Ins. Co. of Pittsburgh, Pa. v Diamond, 39 AD3d 360, 360 ; see also Loucks v Klimek, 108 AD3d 1037, 1038; Osman v Osman, 83 AD3d 1022, 1023-1024).

Here, the defendant demonstrated a reasonable excuse for his default through the affidavit of his treating psychologist, which established that his default was due to diagnosed psychological conditions that rendered him unable to defend himself in this action at the relevant time. He also demonstrated a potentially meritorious defense to the complaint by, inter alia, submitting evidence that the property was not and had never been landlocked. In light of the defendant’s showing and the strong policy favoring adjudication of cases on the merits, the Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate his default and for leave to serve a late answer.”

 

An elderly couple sells some real estate and want to insulate the proceeds for estate planning purposes, specifically Medicare planning.  They have to make the transaction such that they keep the proceeds and shield them from a 5 year look-back review by Medicare.  As a reader of this blog, you surmise that something goes wrong.  Some years later they are told that the proceeds have not been shielded.  Is it too late to sue the attorneys?  In sum, yes.

Judge Freed, in Bonin v Wells, Jaworski & Liebman, LLP  2017 NY Slip Op 32097(U)
October 4, 2017  Supreme Court, New York County Docket Number: 153167/2016 tells us that the time has expired.
“The legal malpractice claim is not timely asserted. An action to recover for attorney malpractice is governed by a three-year statute of limitations, regardless of whether the underlying theory is based on contract or tort (McCoy v Feinman, 99 NY2d 295, 301 [2002]; see CPLR 214 [6]). The three-year limitations period accrues “when the malpractice is committed, not when the client discovers it” (Williamson v Price WaterhouseCoopers LLP, 9 NY3d 1, 7-8 [2007]). This is true even where the plaintiff is unaware of any malpractice, damages, or injury (McCoy v Feinman, 99 NY2d at 300- 301). For statute of limitations purposes, plaintiffs legal malpractice claim accrued no later than July 2008, when the Trust was fully funded. A legal malpractice claim accrues when the alleged injury to the client occurs, such as when the trust agreement was funded, regardless of the client’s awareness of the malpractice (Johnson v Proskauer Rose LLP, 129 AD3d 59, 67 [Pt Dept 2015]; Pace v Raisman & Assoc. Esqs., LLP, 95 AD3d 1185, 1187-1188 [2d Dept 2012]). Therefore, the legal malpractice claim should have been asserted no later than July 2011 for it to have been timely commenced. However, plaintiff commenced this action on April 13, 2016, almost five years after expiration of the limitations period. Contrary to plaintiffs argument, the continuous representation doctrine is not applicable here because, once the Trust was funded, the attorney/client relationship between the Bonins and defendants ended. ”

“To toll the legal malpractice limitations period on a theory of continuous representation, the plaintiff must establish that there existed a mutual understanding between the attorney and client of the need for further representation on the specific subject matter underlying the malpractice alleged; a clear indication of an ongoing, continuous, developing, and dependent relationship between them pertaining specifically to the representation from which the alleged malpractice stems, that is not sporadic or intermittent; and a continuing relationship of trust and confidence between the attorney and the client (Matter of Merker, 18 AD3d 332, 332-333 [1st Dept 2005]).”

“Plaintiff has failed to plead any facts that suggest the existence of a continuing attorney/client relationship between defendants and herself. After the funding of the Trust in July 2008, no contact regarding the trust agreement is alleged to have occurred between the Bonins and defendants, until the Trustee’s letter dated March 6, 2013, almost five years after the funding of the Trust and 11/i years after the expiration of the statutory limitations period. For purposes of the statute of limitations, an attorney/client relationship cannot be revived after the limitations period has expired (see Droz v Karl, 736 F Supp 2d at 527 [applying New York law]; Maurice W Pomfrey & Assoc., Ltd. v Hancock & Estabrook,50 AD3d 1531, 1533 [4th Dept 2008]). Therefore, the correspondence exchanged by the parties in 2013 does not constitute evidence of a continuing relationship, and cannot revive the relationship. Defendants’ reassurances that the Trust was properly created do not demonstrate the existence of a continuous representation. Repeated assurances by attorneys that they provided accurate advice and that they did nothing wrong do not constitute continuous representation, particularly where there exists no mutual understanding to maintain a professional relationship (Arnold v KPMG LLP, 543 F Supp 2d 230, 236 [SD NY 2008], affd334 Fed Appx 349 [2d Cir], cert denied 558 US 901 [2009] [applying New York law]).”

New, or unique causes of action rarely arise.  In Alrose Steinway, LLC v Jaspan Schlesinger, LLP 2017 NY Slip Op 32082(U) September 29, 2017  Supreme Court, New York County Docket Number: 151482/2017 we see a claim that failure to supervise a vastly experienced partner in an LLP  is negligence.  Supreme Court permits discovery on the issue, finding that it is both “interesting” and “unique.”

“In the complaint, p’laintiff alleges that on February 1, 2014, it entered a 10-year ground lease covering two properties in Astoria, Queens (the Premises). The lease contained an option to purchase the Premises for $11 million after February 1, 2023 (the Option), as well as a right of first refusal to match any third-party offer to purchase the Premises during the term of the lease (the ROFR). Any interim purchaser would purchase the Premises subject to the Option. On January 6, 2016, Allen Rosenberg, plaintiff’s principal, executed an amendment to the lease which voided the Option if plaintiff’s landlord sold the Premises to a third-party (the Amendment). Specifically, the Amendment states, “[t]enant’s option to purchase during the final lease year under Article XXX shall be void.” Plaintiff alleges that defendant Stephen P. Epstein, Esq., a real estate partner at defendant Jaspan Schlesinger, LLP, advised Mr. Rosenberg to sign the Amendment and told Mr. Rosenberg that the Amendment was for “housekeeping” purposes. In an November 17, 2015 email, Mr. Epstein writes, “[t]he attached shows the changes requested by [landlord]. The lease that was actually signed was the last version and I believe that is what we agreed to. However, this may be necessary for ‘shalom bayit.”‘ Plaintiff alleges that it relied on Mr. Epstein’s advice and, on January 6, 2016, executed the Amendment without reading it. On August 6, 2016, plaintiff exercised its ROFR and entered into a contract to purchase the Premises for $14.5 million. The purchase closed on November 1, 2016. Plaintiff opines that the Premises were worth $25 million on the date of the malpractice based on an unsolicited offer it received within months of the Amendment to purchase one of the two buildings for $11 million and its sale of the other building for $12.5 million, just one month after the November 2016 closing. ”

“In addition to malpractice, plaintiff asserts an interesting claim of failure to supervise in its third cause of action against defendants Jaspan Schlesinger LLP and Steven Schlesinger, the managing partner of the firm. There is no vicarious liability for a general partner in an LLP. New York Partnership Law§ 26 (b). Although plaintiff argues that Mr. Schlesinger is liable under New York Partnership Law§ 26 (c) (i), which provides that “each partner … shall be personally and fully liable and accountable for any negligent or wrongful act or misconduct committed by him or her or by any person under his or her direct supervision and control while rendering professional services on behalf of such registered limited liability partnership,” it is undisputed that Mr. Schlesinger never communicated with plaintiff nor supervised Mr. Epstein, another partner. Thus, this causes of action against Mr. Schlesinger are dismissed. Plaintiff also advances the argument that the absence of any supervisory structure of partners at the firm is malpractice under Partnership Law§ 26 (c) (i). It argues that the law firm, as a whole, has an obligation to make reasonable efforts to ensure that its partners are appropriately supervised. Under this theory, Mr. Epstein’s status as a partner and 39 years of experience is irrelevant. At this early stage, plaintiff may explore this unique theory against the firm alone. “

 

Wright v Kok-Min Kyan  2017 NY Slip Op 32057(U) September 28, 2017 Supreme Court, New York County Docket Number: 805475/2016 Judge: Eileen A. Rakower is a medical malpractice case that explains what to do when service of the summons and complaint has gone awry.

“Plaintiffs served the Summons with Notice upon Lenox Hill Hospital by service of process upon Ryann Cordaro (“Ms. Cordaro”) at 2000 Marcus Avenue, New Hyde Park, New York, on December 22, 2016. A process server’s affidavit constitutes prima facie evidence of proper service. (Matter of Nazarianv. Monaco Imports, Ltd., 255 A.D.2d 265 [1st Dept. 1998]). A defendant’s “sworn, nonconclusory denial of service” is sufficient to dispute the veracity or content of the process server’s affidavit. (NYCTL 1998-1 Trust v. Rabinowitz, 7A.D.3d 459 [1st Dept. 2004]). ”

“In her sworn affidavit, Ms. Cordero states that she is a Senior Executive Assistant in the Legal Department ofNorthwell Health. Ms. Cordero further states that she is “not an agent authorized to receive service on behalf of Lenox Hill Hospital, or any other hospital, nor [has she] ever been an employee of Lenox Hill Hospital.” Ms. Cordero states that the building located at 2000 Marcus Avenue, the location where service was made, is the address for the Northwell Health, and not Lenox Hill Hospital.

Plaintiffs do not challenge defendants’ claim that the service made upon Lenox Hill Hospital via delivery of the Summons with Notice to Ms. Cordero was defective. Instead, by way of cross motion, plaintiffs seek additional time pursuant to CPLR § 306-b to serve their pleading upon Lenox Hill Hospital. ”

“This Court may exercise its discretion to extend the 120-day period in CPLR §306-b to enable plaintiffs to properly serve Lenox Hill Hospital. CPLR §306-b provides that “[i]f service is not made upon a defendant within the [120-day period] provided in this section, the court, upon ~o~ion, shall dismiss the action without prejudice … or upon good cause shown or in the interest of justice, extend the time for service.”

A “good cause” extension requires a showing of reasonable diligence in trying to effect proper service upon a defendant. (Henneberry v. Borstein, 91 A.D.3d 493, 496 [1st Dep’t 2012]). Good cause has been found where “the plaintiffs failure to timely serve process is a result of circumstances beyond its control.” (Bumpus v. New York City Tr. Auth., 66 A.D.3d 26, 32 [1st Dep’t 2009]). The “good cause” extension, however, does notinclude conduct that is considered to be “law office failure.” (Henneberry, 91 A.D.3d at 496).

An extension “in the interest of justice” is broader and more flexible than a “good cause” extension and can include law office failures as long as there is no prejudice to the defendant. (Leader v. Maroney, Ponzini & Spencer, 97 N.Y.2d 95, 105 [2001] [“CPLR 306-b provides foran additional and broader standard, i.e., the ‘interest of justice,’ to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant”]). A court “may consider [plaintiffs] diligence, or lack thereof, along with any other relevant factor … , including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiffs request for the extension of time, and prejudice to defendant.” (Henneberry, 91 A.D.3d at 496, citing Leader, 97 N.Y.2d at 105-106). “