The statute of limitations has a haunting presence in legal malpractice. It both generates and limits legal malpractice cases.  It is a source of many cases, i.e. where the underlying case was not started on time.  The Statute also plays a limiting role in legal malpractice when clients do not understand or learn of the effects of a mistake made by attorneys, or wait too long to sue.  They are then unable to seek remedy from attorneys who fell below the proper standard of practice.

One interesting twist in the analysis of the statute of limitations is the “relation-back” principle.  It is well discussed in O’Halloran v Metropolitan Transp. Auth.  2017 NY Slip Op 06237
Decided on August 22, 2017  Appellate Division, First Department Acosta, P.J.

“The relation-back doctrine, now codified in CPLR 203(f), provides that “[a] claim asserted in an amended pleading is deemed to have been interposed at the time the claims in the original pleading were interposed, unless the original pleading does not give notice of the transactions [or] occurrences . . . to be proved pursuant to the amended pleading” (CPLR 203[f]; see also Giambrone v Kings Harbor Multicare Ctr., 104 AD3d 546, 548 [1st Dept 2013] [making clear that the “salient inquiry” in deciding whether an otherwise untimely claim in an amended pleading relates back to a timely commenced action “is not whether defendant had notice of the claim, but whether, as the statute provides, the original pleading gives notice of the transactions [or] occurrences . . . to be proved pursuant to the amended pleading'”] [emphasis added]). The doctrine is “[a]imed at liberalizing the strict, formalistic pleading requirements of the [nineteenth] century, while at the same time respecting the important policies inherent in statutory repose,” and “enables a plaintiff to correct a pleading error—by adding either a new claim or a new party—after the statutory limitations period has expired” (Buran v Coupal, 87 NY2d 173, 177 [1995] [citations omitted]). It is within courts’ “sound judicial discretion to identify cases that justify relaxation of limitations strictures . . . to facilitate decisions on the merits if the correction will not cause undue prejudice to the plaintiff’s adversary” (id. at 178 [internal quotation marks and citation omitted]).

The Court of Appeals has recognized that a more relaxed standard applies where a plaintiff seeks to use the relation-back doctrine by adding a new claim against a defendant who is already a party to litigation as opposed to adding a new defendant (Buran, 87 NY2d at 178 [“allowing the relation back of amendments adding new defendants implicates more seriously the() policy concerns (underlying statutes of limitation) than simply the relation back of new causes of action since, in the latter situation, the defendant is already before the court”]; see also Duffy v Horton Mem. Hosp., 66 NY2d 473, 477 [1985] [“[A]n amendment which merely adds a new theory of recovery or defense arising out of a transaction or occurrence already in litigation clearly does not conflict with the() policies” underlying statutes of limitation – i.e., repose and the conservation of judicial resources – because “(a) party is likely to have collected and preserved available evidence relating to the entire transaction or occurrence and the defendant’s sense of security has already been disturbed by the pending action”]). Thus, although the Court of Appeals has adopted a three-part test for determining whether to apply relation back to an amended pleading that adds a new defendant, no such test applies where a plaintiff simply seeks the relation back of a new claim (see Buran, 87 NY2d at 178). In other words, where, as here, a proposed amended complaint contains an untimely claim against a defendant who is already a party to the litigation, the relevant considerations are simply (1) whether the original complaint gave the defendant notice of the transactions or occurrences at issue and (2) whether there would be undue prejudice to the defendant if the amendment and relation back are permitted (see CPLR 203[f]; CPLR 3025[b]; see Buran, 87 NY2d at 178; Caffaro v Trayna, 35 NY2d 245, 251 [1974]).

In accordance with these principles, we hold that the motion court providently exercised its discretion when it permitted plaintiff to amend her complaint to add her otherwise untimely claims of sexual orientation discrimination. All of plaintiff’s claims are based on the same occurrences — namely the underlying employment actions taken against her – and the original complaint put defendants on notice of those occurrences. To be sure, plaintiff’s original [*3]complaint did not allege the specific facts that she is a lesbian, that defendants were aware of her sexual orientation, that defendants discriminated against her on that basis, or that another lesbian colleague was demoted for supporting her internal dispute with Menduina. Nevertheless, the motion court correctly determined that the new claims are based on “the same subject matter alleged in the original complaint.” Defendants need not have been put on notice of every factual allegation on which the subsequent claims depend, because the original complaint put them on notice of the occurrences that underlie those claims (see Schneidman v Tollman, 279 AD2d 276, 276 [1st Dept 2001] [motion court “properly found that plaintiffs’ amended pleadings were not time-barred, since they relate back to the original complaint, merely adding additional factual detail”] [internal quotation marks omitted]).

Viewing “transactions [or] occurrences” through this broad lens for the purposes of relation back under CPLR 203(f) is especially important in the context of anti-discrimination actions – particularly those actions brought under the City HRL – in which it is frequently difficult for plaintiffs to articulate their employers’ motivations for treating them less well than other employees (see Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 37 [1st Dept 2011] [“discrimination rarely announces itself,” and “the defendant, by definition, is in a materially better position to provide evidence as to its actual motivation than the plaintiff”], lv denied 18 NY3d 811 [2012]). Of course, it is preferable that a plaintiff set forth every factual allegation on which her claims are based, but in these circumstances plaintiff should not be faulted for not previously raising her sexual orientation as a basis for defendants’ unfavorable treatment of her [FN3]. In this case, the occurrences underlying the new claim are defendants’ general treatment of plaintiff (e.g., denying her an opportunity to interview for advancement, giving her tighter deadlines than other employees, instituting disciplinary proceedings against her, and demoting her), all of which occurred on the same dates and in the same instances as alleged in the original complaint. That plaintiff now seeks to include another reason for those occurrences and another theory of liability cannot be fairly characterized as a failure to give notice of the occurrences she seeks to prove in her amended complaint.

Moreover, defendants will not be unduly prejudiced or surprised by allowing plaintiff to amend the complaint to add her new claims, because they have not been “hindered in the preparation of [their] case or . . . prevented from taking some measure in support of [their] position” (Jacobson v McNeil Consumer & Specialty Pharms., 68 AD3d 652, 654-655 [1st Dept 2009] [internal quotation marks omitted]; see also Buran, 87 NY2d at 178). “Prejudice does not occur simply because a defendant is exposed to greater liability or because a defendant has to [*4]expend additional time preparing its case” (Jacobson, 68 AD3d at 654 [citation omitted]). When defendants were first confronted with plaintiff’s original claims, it is likely that they conducted some kind of internal investigation into the entire series of alleged actions taken against plaintiff, to determine whether and on what grounds she was discriminated against (see Duffy, 66 NY2d at 477 [defendants are “likely to have collected and preserved available evidence relating to the entire transaction or occurrence” at the outset of the litigation]). Thus, they ought to know the discriminatory reasons for which plaintiff was treated unfavorably, if any such reasons exist. In any event, to the extent any prejudice against defendants exists, it is negligible and can be cured by further discovery (Jacobson, 68 AD3d at 654 [“(T)he need for additional discovery does not constitute prejudice sufficient to justify denial of an amendment”]).[FN4]“

Medical Malpractice preceeded legal malpractice (the ancient joke being that you could not have medical malpractice until a lawyer was around to harass a doctor) and continuous treatment begat continuous representation.  Here, in Lewis v Rutkovsky  2017 NY Slip Op 06342  Decided on August 29, 2017  Appellate Division, First Department we see both an well-written discussion of continuous treatment and an interesting split between the judges of a First Department bench.

“In this medical malpractice action, plaintiff claimed to have suffered injuries as a result of negligent care she received from defendant Frederick D. Rutkovsky, M.D., plaintiff’s primary care physician, and, vicariously, from defendant LHHN Medical P.C [FN1]. Specifically, plaintiff alleged that Dr. Rutkovsky failed to detect, diagnose, and treat a meningioma (that is, a benign brain tumor) from on or about April 3, 1998 until September 5, 2007. In support of her allegations, plaintiff asserted that Dr. Rutkovsky “ignored” her repeated complaints of migraine headaches, blurred vision, and other related symptoms. Plaintiff ultimately underwent a left frontal parasagittal craniotomy and suffered a loss of vision rendering her legally blind. By complaint dated March 5, 2010, plaintiff commenced this action against LHHN Medical, P.C., and Lenox Hill Community Medical Group, P.C. (together LHHN) and Dr. Rutkovsky, alleging medical malpractice and lack of informed consent.”

“Turning to the merits of defendants’ motions, the record presents issues of fact as to continuous treatment. As is well established, “the continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint” (Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996] [internal quotation marks omitted]). In addition, “[w]here the malpractice claim is based on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition” (Wilson v Southhampton Urgent Med. Care, P.C., 112 AD3d 499, 500 [1st Dept 2013][internal quotation marks omitted]).

Here, read in the light most favorable to plaintiff, the record contains issues of fact as to whether from March 1999 until at least September 5, 2007 there was continuity of treatment for symptoms — namely, recurring and sometimes severe headaches — that were traceable to plaintiff’s meningioma (see id. at 500-501). If so, the course of treatment would render plaintiff’s action timely, as the statute of limitations would be tolled between March 1999 and September 2007.”

“Our dissenting colleague insists that the continuous treatment doctrine cannot apply, asserting that there was no evidence of regular appointments or ongoing treatment for plaintiff’s headache-related complaints. Putting aside the fact that the assertion mischaracterizes the record — in fact, plaintiff testified that once per month from January 2007 until June 2007 she complained of “extreme” headaches that were not helped by over-the-counter medication — it is a red herring, as it has no bearing on whether the record contains evidence that the continuous treatment doctrine may apply. On the contrary, the case law contains no requirement that a plaintiff have attended “regular” appointments in the sense that the appointments were scheduled for the sole purpose of treating the allegedly misdiagnosed condition. Rather, the inquiry centers on whether the treated symptoms indicated the presence of the condition that was not properly [*4]diagnosed — here, a meningioma that gave rise to plaintiff’s severe headaches and partial loss of vision, both of which Dr. Rutkovsky undertook to treat by, among other things, prescribing reading glasses (see Wilson, 112 AD3d at 500; see also Devadas v Niksarli, 120 AD3d 1000, 1006 [1st Dept 2014][“in determining whether continuous treatment exists, the focus is on whether the patient believed that further treatment was necessary, and whether he sought such treatment”], citing Rizk v Cohen, 73 NY2d 98, 104 [1989]; Simons v Bassett Health Care, 73 AD3d 1252, 1254 [3d Dept 2010]).

The dissent attempts to dismiss the record testimony of once-monthly visits over a six-month period by asserting that plaintiff gave “self-serving” deposition testimony about those visits. There is nothing “self-serving,” in a legal sense, about deposition testimony that favors the party giving it. Rather, testimony is said to be self-serving when it contradicts prior testimony — a situation that does not exist here (see e.g. Capuano v Tishman Const. Corp., 98 AD3d 848, 851 [1st Dept 2012] [an affidavit that does not contradict one’s prior deposition testimony and “provides additional details illuminating” the prior testimony is not considered self-serving]). Whether the testimony is “self-serving” in the sense that it is incredible on its face, and therefore creates no material issue of fact, is an issue for the factfinder to resolve.

Likewise, contrary to the dissent’s characterization, plaintiff’s deposition testimony does not amount to mere “[c]onclusory allegations” in any sense that that phrase is used to defeat a motion for summary judgment. Plaintiff’s deposition testimony was factual, simply reflecting her recollections of how often she visited Dr. Rutkovsky during a certain time period and what she recalled telling him at those times. Applying the word “conclusory” to such testimony is not meaningful in this context; plaintiff was not making a legal conclusion about continuing treatment, but merely testifying to her recollection of events (cf. McGahee v Kennedy, 48 NY2d 832, 834 [1979] [summary judgment not defeated by the defendant’s conclusory statements that he was coerced to sign amendment to separation agreement]). Whether this testimony is credible is a matter to be evaluated by the factfinder, not by the court on summary disposition.

In a similar vein, the dissent insists that “plaintiff does not connect these purported visits between January and June 2007 to her documented visit in September 2007, or otherwise raise an issue regarding a continuing course of treatment for headaches.” We disagree with this statement because, as noted above, plaintiff did, in fact, testify that she told Dr. Rutkovsky about her headaches during these once-monthly visits. Specifically, she testified that she was “at his office [once a month] telling him about [] headaches [that] were getting more and more extreme” such that she could not get out of bed, and were not alleviated by Ibuprofen. This testimony, read in the light most favorable to plaintiff, is quite sufficient to raise an issue of fact, which is all that the law requires at this stage (see e.g. Chestnut v Bobb-McKoy, 94 AD3d 659, 662 [1st Dept 2012]).”

Sometimes flamboyant, often visionary, architects are different from the general masses.  Celebrity architects often have unique personal style, including unusual eyeglasses.  That all aside, architects are granted a higher standard of proof against them in negligence actions, as is described in New York Mar. & Gen. Ins. Co. v Perotto Assoc. Eng’g, P.C., 2017 NY Slip Op 31790(U),  August 25, 2017,  Supreme Court, Kings County Docket Number: 295/2015-E,  Judge: Debra Silber.

“In or around March, 1991 , twenty-two years before the fire, defendant engineering firm was retained by Crockett Fuel Oil Co. (“Crockett”) on behalf of the prior owner of the premises to file for a permit with the New York City Department of Buildings (“DOB”) to install a new boiler. Defendant submitted , as part of the permit application, a drawing of the proposed boiler installation (“Drawing”; Exhibit D2). The drawing indicates where the new equipment was to be located in the boiler room. It also includes the specific model numbers of the equipment to be installed. It is an overhead view. It is drawn on a form clearly provided by the DOB, with extensive verbiage on the left side clearly not written by the defendant. The verbiage includes a provision that there is to be “a minimum of 18 inches clearance .. . provided around [the] boiler with 3′-0″ in front.” There is no place on the Drawing that indicates the height of the boiler room or the height of the boiler model number specified. If other drawings were filed , they were not included in the motion papers. On May 7, 1991 , the DOB issued a work permit for the installation of the boiler. In issuing the permit, the DOB stamped the Drawing as “Accepted under Directive 14 of 1975.”

On March 10, 2013 at around 5:00 P.M., approximately six months after the current owner bought the building from the prior owner, who had owned it since 1990, a fire broke out in the basement of the Premises, which caused significant damage. ”

“In support of its motion for summary judgment dismissing plaintiffs’ complaint, defendant first argues that there exists no triable issue of material fact. Defendant argues that a motion for summary judgment brought pursuant to CPLR 3212 must be analyzed under the substantial basis standard, which requires plaintiffs to demonstrate that a substantial basis in fact and law exists to believe that defendant’s conduct was the proximate cause of plaintiffs’ injuries. Defendant asserts that there is no genuine or material issue of fact regarding defendant’s lack of involvement in and responsibility for the design, installation, inspection, and servicing of the boiler. Defendant submits an affidavit of its President, Robert Perotto, who avers that defendant was retained by Crockett, who was hired by the prior owner of the Premises, solely to obtain a work permit, and that the Drawing was only to be used for the express purpose of obtaining a work permit to install a new boiler and burner. Mr. Perotto states that his firm did not install the boiler, supervise its installation or certify to the DOB that it was properly installed. Mr. Perotto also states that his firm never inspected the installation, nor did they prepare any annual inspection report for the premises. Second, defendant argues that it does not owe a duty of care to plaintiffs or their subrogors, because defendant was solely retained to obtain a work permit and was not responsible for the design, installation, inspection, or servicing of the boiler. Defendant asserts that because it did not owe any duty of care to the prior property owner or his assignees, it is not liable as a matter of law. Third , defendant argues that plaintiffs have failed to prove that defendant’s conduct was the proximate cause of the fire. ”

“The action insofar as asserted against the defendant arises under CPLR 214-d, which applies to certain actions against licensed engineers and architects. A motion to dismiss an action arising under CPLR 214-d is subjected to “heightened scrutiny” and “shall be granted unless the party responding to the motion demonstrates that a substantial basis in law exists to believe that the performance, conduct or omission complained of such licensed architect [or engineer] . .. was negligent and .. . a proximate cause of personal injury . . . complained of by the claimant” (CPLR 3211 [h]). “[A] court reviewing the sufficiency of a complaint under CPLR 3211 (h) must . .. determine whether the claim alleged is supported by such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (Castle Vil. Owners Corp. v Greater N. Y. Mut. Ins. Co., 58 AD3d 178, 183, 868 NYS2d 189 [1 st Dept 2008] [internal quotation marks omitted]). See Schmitt v Spector, 129 AD3d 1052, 1052-1053 [2nd Dept 2015); Kenny v Turner Constr. Co., 107 AD3d 412 [1st Dept 2013). The Court of Appeals has explained “[a]n interruption of the nexus between defendant’s negligence and plaintiffs injury by the act of a third party may affect defendant’s liability. An intervening act will be deemed a superseding cause and will serve to relieve defendant of liability when the act . . . so attenuates defendant’s negligence from the ultimate injury that responsibility for the injury may not be reasonably attributed to the defendant” (Kush by Marszalek v City of Buffalo, 59 NY2d 26, 33 [1983]). “If the intervening act is .. . independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]).

Plaintiffs’ claims herein cannot withstand defendant’s summary judgment motion because plaintiffs fail to demonstrate that a substantial basis in fact and law exists to show that defendant’s alleged negligence, carelessness, or recklessness was the proximate cause of the March 10, 2013 fire. According to the DO B’s records, which are publicly available on the internet and which the court takes judicial notice of, the boiler was inspected approximately twenty times for the preparation and filing of the required annual boiler inspection reports between the time of its installation in 1991 and the date of the fire. In addition, the current owner had a professional inspect the premises before he purchased it. This report is EFile document 255 in the “main” action. The report is dated September 26, 2012 and states, at page 16, that the boiler was observed to be in average to fair condition, was twenty years old and would need to be replaced in approximately ten years. “

Once in a while a case captures your interest.  This was the situation in Gevorkyan.  Sure, this was outside of legal malpractice and professional liability, but a former client came to us with a problem.  He had been arrested for financial crimes, and bail was set at $2 Million.  He paid a bail bond premium, but never got out of jail.  Because he never “made bail” his bail bond premium was never at risk, and there was no way he could fail to return to court, since he never left jail.  He wanted his $ 120,560 premium back, and the bond guy just wouldn’t listen to him.

The case progressed through the US District Court, and then to the Second Circuit Court of Appeals.  The Second Circuit certified a question to the New York Court of Appeals. The New York Court of Appeals decided that a bail bondsman has to return the premium when the accused goes to a hearing and is not release after trying to post bail.

Today the New York State Department of Financial Services notified bail bond agents and companies of a change in the regulations.  Reported in the New York Law Journal by Josepha Velasquez, the Gevorkyan rule is now in effect.

 

 

New York is full of real estate stories, and has been since Dutch times.  Whether it was acquisitions in Old Breuckelen, or in the narrow streets of the lower east side, real estate and development has always been a New York sort of activity.

180 Ludlow Dev. LLC v Olshan Frome Wolosky LLP   2017 NY Slip Op 31780(U) August 22, 2017 Supreme Court, New York County  Docket Number: 651473/2013  Judge: Debra A. James arises from the same urge.  A new hotel, built in an unusual cantilever method would require air rights from the neighboring tenements.  The neighboring building had its own history as well.  As one might guess, the project did not fare well.

“In this legal malpractice action, plaintiff 180 Ludlow Development LLC (Ludlow) moves for an order granting partial summary judgment of liability on its complaint against defendant Olshan Frome Wolosky LLP (Olshan) . Olshan cross-moves for an order of summary judgment dismissing the complaint. ”

“In late 2006, Ludlow, a real estate developer, retained Olshan, a law firm, to represent Ludlow with respect to the acquisition of air rights over a parcel of land owned by Ithilien Realty Corp (Ithilien) that adjoined the property that Ludlow owned and was developing as a hotel at 180-184 Ludlow Street, on the Lower East Side of Manhattan (Project).

There is no dispute that Ludlow retained Olshan as its transactional lawyer to prepare documents for the Project, under which, among other things, Ludlow would purchase air rights from Ithilien, and Ithilien would consent to Ludlow’s construction of a cantilever over Ithilien’s parcel and its building (Building) thereon. Ludlow hired other lawyers, who provided consultations on light and air easement issues, including a land use attorney, who at Ludlow’s request, reviewed Olshan’s draft of the contract of sale and the Zoning Lot Development Agreement (ZLDA, including the cantilever provision, prior to their execution. Ludlow also retained other professionals in connection with the Project, including an architect; a building consulting firm; a building expediting service company; a land use planning consultant; and a specialist .on regulatory issues, including the zoning code.”

“In March 2007, seven months before execution of the ZLDA, Ludlow’s architects and consultants exchanged e-mail messages that stated that were the cantilever structure built over the courtyard on Ithilien’s parcel thereby enclosing such courtyard as then proposed, it would block the light and windows that provided the ventilation for Ithilien’s Building. All such messages show that Ludlow was copied on these emails, but Olshan was not. In one such message sent tb Ludlow’s regulatory/building code consultant on March 21, 2007, Ludlow’s building consultant wrote: “We need to briefly review this issue and advise if it is possible to cover (enclose) the courtyard and inform us of any provisions required by such. If we are unable to utilize these air rights, we will not purchase.” In an e-mail sent on that same day to Ludlow and all of its consultants, except Olshan, Ludlow’s regulatory/building code consultant replied: “We have briefly looked at the plot plan, and it loo~s like you can cantilever on other areas over the adjoining building but you can not cantilever over the court. The court is being used for existing building light and ventilation windows and can not be covered. Unless you are able to alter the existing building and remove all the rooms that open to that court. (sic)” ”

“Olshan was unable to obtain Ithilien’s consent to the proposed installation of permanent mechanical ventilation on its Building. Ludlow asserts that, because it was unable to resolve the issue of whether the construction of cantilever rendered the Ithilien Building in violation of· the building code, which would thus jeopardize Ludlow’s ability to obtain a certificate of occupancy, Ludlow halted the Project construction work on December 3, 2008. Ludlow served a Notice to Cure dated October 20, 2008 (Notice to Cure) upon Ithilien asserting that Ithilien breached the ZLDA § 8(a) in neither curing nor allowing Ludlow to cure the Violation resulting from Ludlow’s construction of the cantilever in a manner that blocked the light and window ventilation to Ithilien’s Building, specifically, to the residential units therein. ”  (The decision explains, in great detail, the court’s reasoning)

“Accordingly, it is ORDERED that the plaintiff’s motion for partial summary judgment of liability is denied; and it is further ORDERED that the defendant’s cross motion for summary judgment dismissing the complaint is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ORDERED that the Clerk is directed to enter judgment. ”

 

Legal malpractice cases encapsulate the entire world.  In this short story, money, fashion, greed and cruelty combine into a fairy tail of tragedy.  Oleg Cassini was wildly successful.  He died in 2006 with an estate of about $ 60 Million.  He had a child from an earlier marriage with actress Gene Tierney, which ended in divorce in 1953.  The divorce required him to leave 25% of his estate to his daughter, Christina.

The required 25% bequest was not made, and Christina had to sue.  Page Six of the Post tells us that she never collected any money, and died in poverty from ovarian cancer.  She succeeded in the suit, but the widow (stepmother?) succeeded in fending off collection.

Even though the money was never paid to Christina, the executor sued attorneys who defended Christina’s suit in Nestor v Putney Twombly Hall & Hirson, LLP  2017 NY Slip Op 06284 Decided on August 23, 2017  Appellate Division, Second Department. “The executor of the decedent’s estate subsequently commenced this legal malpractice action based on the failure of the estate’s attorneys to raise in the Surrogate’s Court proceeding the defense that Christina’s claim was barred by California Code of Civil Procedure §§ 337.5 and 366.3. The defendants Putney Twombly Hall & Hirson, LLP, William M. Pollak, and Philip H. Kalban (hereinafter collectively the Putney defendants) moved, inter alia, pursuant to CPLR 3211(a)(7) to [*2]dismiss the complaint insofar as asserted against them. The Supreme Court granted the motion, and the plaintiff appeals.”

“Here, the Supreme Court properly determined that California Code of Civil Procedure §§ 337.5 and 366.3 were inapplicable to this action, and that pleading those statutes would not have resulted in a determination that Christina’s claim was barred.

“New York courts will generally enforce a clear and unambiguous choice-of-law clause contained in an agreement so as to give effect to the parties’ intent” (Matter of Frankel v Citicorp Ins. Servs., Inc., 80 AD3d 280, 285). Although this rule applies to “matters of substantive law,” procedural matters “are governed by the law of the forum” (id. at 285 [internal quotation marks omitted]). “Significantly, the law of the forum normally determines for itself whether a given question is one of substance or procedure” (id. at 286 [internal quotation marks omitted]). In determining whether a statute is procedural or substantive, the other state’s classification of its statute “is instructive and should not be ignored,” but “New York is not bound by, and principles of comity do not prompt [a New York court] to adopt” the other state’s classification (Tanges v Heidelberg N. Am., 93 NY2d 48, 54).”

“Accordingly, the Supreme Court correctly determined that the complaint failed to state a cause of action (see CPLR 3211[a][7]), and thus, properly granted the motion of the Putney defendants to dismiss the complaint insofar as asserted against them.”

Last week we reported on the reappearance of Dupree v. Vorhees  in the Judiciary Law § 487 pantheon.  Today, we see that Melcher v Greenberg Traurig LLP   2017 NY Slip Op 31727(U)
August 15, 2017 Supreme Court, New York County  Docket Number: 650188/2007  Judge: O. Peter Sherwood has similarly bobbed up.

Melcher has a fascinating backstory, with documents disappearing  and then reappearing, only to be accidentally burnt.  Melcher v Greenberg Traurig, LLP  2014 NY Slip Op 02213 [23 NY3d 10] . The case set the statute of limitations at 6 years.
But, onto today.  Judge O. Peter Sherwood decided several interesting evidentiary points. The most important is that no expert  testimony is necessary to show deceit to a jury. The services of two of the most preeminent ethics attorneys was dispensed with by motion.  “The testimony sought to be admitted through the “expert” testimony of Patrick Conner and Roy Simon intrudes on areas reserved to the court (see id.) and it is also likely to confuse the jury. The jury is being called upon to determine whether Leslie Corwin, an attorney, engaged in deceit or colluded with an intent to deceive the court or a party. The jury is not being asked to resolve whether or not he violated the Code of Professional Responsibility (the Code) where the applicable standards are different than those involved here. Moreover, the concept of deceit is readily understandable and does not require interpretation by experts. “

Evidence of whether an attorneys’ conduct is deceitful is also not the fodder for experts. “Although evidence concerning the role of the lawyer in the adversary system may be useful background, issues as to whether and when a lawyer has an obligation to speak are legal questions reserved to the court. Expert testimony is neither helpful nor permitted. “

In a part of the decision less universal, the court precluded damages other than the cost of attorney work in the case.  No loss of value in the underlying settlement and non-payment due to deceit was permitted. “Regarding damages, the testimony plaintiff seeks to offer as to what he might have been able to collect in the Apollo action had he been able to obtain a judgment during the time that Apollo Medical Fund was in better financial health versus the amount be obtained in settlement years later but for the deceit, is entirely speculative. ”

“Plaintiff cannot show that defendant’s alleged deceits were the proximate cause of any injury, except perhaps “excess legal expenses” incurred in the Apollo action (see Melcher v Greenberg Traurig LLP, 135 AD3d 547, 554 [Pt Dept 2016]; see also Zimmerman v Kohn, 125 AD3d 413 [1st Dept 2015] [cited in Melcher]). ”

Finally, the judge cast doubt on how to prove those excess legal expenses. “Defendants’ fees expert, Beth Kaufman, proposes to opine on the standards for legal fees damages in a Section 487 action but relies on the standards applicable to statutory fee shifting cases were, unlike this case, there rarely is any direct evidence of the reasonableness of the fees being sought. Further in fee shifting cases, claimants are on notice prior to commencement of the action that they will be required to show the reasonableness of the fees being requested and therefore must keep time records with a level of detail that a paying client might not require. Here, there is direct evidence of the “reasonableness” of the fees, specifically the amount the client paid for the services performed. The rate plaintiff paid his lawyer in the underlying action cannot be met by purported “expert” testimony as to what a court might award in a fee shifting case. The rate which is reasonable here was fixed by the marketplace. Although courts routinely require lawyers in fee shifting cases to detail how time claimed was spent, paying clients often do not. To require plaintiff to break out their fees separating those earned on any given day between those associated with routine prosecution of the case and excess fees devoted to meeting alleged deceitful evidence is neither feasible nor required. Accordingly, the approach taken by Kaufman is unsupported and will not be permitted. ”

 

Sure, you avoided motions to dismiss.  Sure, you avoided a motion for summary judgment.  Sure, you got a jury verdict.  Enough already?  Nope.  In Michael v He Gin Lee Architect Planner, PLLC  2017 NY Slip Op 06177  Decided on August 16, 2017, the  Appellate Division, Second Department looks at plaintiff’s jury verdict and reverses, then dismissing the complaint. Plaintiff did not even get a new trial.

“ORDERED that the judgment is reversed, on the law, with costs, that branch of the defendants’ motion which was pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law is granted, and the complaint is dismissed.

A motion pursuant to CPLR 4404(a) to set aside a jury verdict and for judgment as a matter of law will be granted where there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial (see Cohen v Hallmark Cards, 45 NY2d 493, 499; Ross v Northern Westchester Hosp. Assn, 74 AD3d 1047).

Where, as here, the causes of action submitted to the jury hinge on allegations of professional malpractice against an architect, it is incumbent upon the plaintiff to present expert testimony to support them (see 530 E. 89 Corp. v Unger, 43 NY2d 776, 777). Specifically, the plaintiff in this case alleged that the defendants committed professional malpractice by submitting defective plans to the New York City Department of Buildings (hereinafter the DOB), and by failing to diligently pursue the approval process and timely deal with objections raised by the DOB. Such questions are not within the competence of untutored laypersons to evaluate, as “common experience and observation offer little guidance” (id. at 777).

The only expert proffered by the plaintiff conceded that he “didn’t see” the defendants’ plans, and when asked, for instance, to opine on whether the defendants’ plans “would have caused a problem” regarding the roof’s ability to bear the weight of certain HVAC equipment, [*2]he demurred, answering, “No, I only work for myself.” Moreover, the expert offered no opinion regarding the defendants’ alleged delay in getting their plans approved by the DOB. Given the absence of any expert testimony that the defendants departed from accepted architectural standards of practice (see Bruno v Trus Joist a Weyerhaeuser Bus., 87 AD3d 670, 672; Kung v Zheng, 73 AD3d 862, 863), the jury lacked any rational basis for its finding that the defendants committed professional malpractice (see 530 E. 89 Corp. v Unger, 43 NY2d at 777-778; Tucker v Elimelech, 184 AD2d 636, 637-638). Accordingly, that branch of the defendants’ motion pursuant to CPLR 4404(a) which was to set aside the verdict and for judgment as a matter of law should have been granted, and the complaint dismissed.”

 

Schmidt v One N.Y. Plaza Co. LLC 2017 NY Slip Op 06047 Decided on August 8, 2017
Appellate Division, First Department is not a legal malpractice case, but it is a well written decision setting forth how experts battle in a summary judgment case.  Plaintiff slips/falls from a ramp while at work.  His job is to lead a security dog in examining trucks.

“Defendants moved for summary judgment dismissing the complaint, arguing that plaintiff could not establish that his accident took place as the result of any negligence on the part of defendants in the design or maintenance of the service ramp. In support of their motion, defendants submitted an architect’s report from their expert which concluded that the design and construction of the ramp did not violate the New York City Building Code or any industry-wide standard.

In opposition, plaintiff averred that its expert would testify that the service ramp was defective and that the defects were in violation of “good, proper, and accepted building and engineering standards” for ramps in equivalent buildings and were in violation of the New York City Building Code and industry standards at the time of construction.

The motion court denied defendants’ motion for summary judgment and found that they failed to establish a prima facie entitlement in that defendants’ expert affidavit only addressed the Building Code and Occupational Safety and Health Administration (OSHA) regulations, and failed to address other types of industry-wide standards that might be applicable to determine whether defendants were negligent.

On a motion for summary judgment, the moving party has the initial burden of establishing its entitlement to judgment as a matter of law with evidence sufficient to eliminate any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The facts must be viewed “in the light most favorable to the non-moving party” (Ortiz v Varsity Holdings, LLC, [*2]18 NY3d 335, 339 [2011]). Summary judgment should not be granted where there is any doubt as to the existence of triable issues or there are any issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Here, defendants established prima facie entitlement to summary judgment by establishing that the ramp was not designed in a negligent manner and was not in violation of any rules, or standards applicable at the time of construction.

Defendants’ expert report stated that the Building Code applicable to the premises, which was enacted in 1968 (see 1968 Building Code of City of NY [Administrative Code of City of NY] tit 27), was silent concerning the components of a loading dock, delivery truck parking, material loading and unloading, and in regard to an access ramp between the truck parking floor and the top of the loading dock. As a result, the expert concluded, the ramp did not violate the Building Code. The expert also concluded that because the service ramp was not part of the required egress from the loading dock area, those parts of the Building Code applicable to “Means of Egress” did not apply.

Based on his conclusion that the Building Code did not contain sections specifically applicable to the instant facts, defendants’ expert reviewed the standards promulgated by OSHA. He concluded, however, that no section of OSHA applied to the instant facts. He also found that National Fire Protection Agency “Life Safety Code” did not apply to the instant facts. Defendants’ expert opined that the portion of the curb of the ramp where plaintiff was alleged to have tripped was not a foreseeable pedestrian path, since it runs parallel, not across the path of pedestrians walking up and down the ramp. He noted that the use of bright yellow paint to alert pedestrians to the presence of walkway conditions was proper and in compliance with the American Society for Testing and Materials. Overall, defendants’ expert concluded that plaintiff had not cited to any valid authority in support of his contention that the ramp caused the accident, and established that the ramp did not violate any standards referenced by plaintiff’s expert in his expert exchange.

In opposition, plaintiff failed to raise a triable issue of fact as to any negligence on the part of defendants (see Hotaling v City of New York, 55 AD3d 396, 398 [1st Dept 2008], affd 12 NY3d 862 [2009]).”

New York has no applicable statute of limitations longer than 6 years, and this case was brought too late.  That is the holding in Epiphany Community Nursery Sch. v Levey  August 7, 2017
Supreme Court, New York County  Docket Number: 654655/2016  Judge: Shirley Werner Kornreich.  This shocking story of monies siphoned off by an unfaithful husband from the wife’s New York school is one where a discovery statute of limitations in fraud does not work.

“The Gruppo Levey Defendants are currently before this court in an unrelated action, styled Pensmore Investments, LLC v Gruppo, Levey & Co., Index No. 650002/2014 (the Pensmore Action), concerning their default on a settlement agreement. The underlying case and settlement resulted in protracted litigation over their alleged financial improprieties. See Pensmore Action, Dkt. 495 (granting summary judgment on claim to pierce corporate veils of GLC, GLH and another related entity).3 An externality of the Pensmore Action was the public revelation that Hugh and Claire, longtime business partners, were having an affair. Predictably, the aftermath was an acrimonious divorce proceeding between Hugh and his now ex-wife, nonparty Wendy Levey (Wendy),4 which recently settled. Part of the fallout is the instant dispute over Hugh’s involvement with the School, a New York not-for-profit corporation that operates a kindergarten and nursery school on Manhattan’s Upper East Side.

The School’s complaint contains well pleaded allegations of serious financial improprieties committed by Hugh. Nonetheless, while this case would have survived a motion to dismiss had it been commenced years ago, at this juncture, the claims in this action are dismissed because they are time-barred. ”

“The first scheme occurred in 2002 and 2003, more than a decade before this action was commenced in 2016. There is no applicable New York statute of limitations longer than 6 years. See CPLR 213 (claims with 6-year statute of limitations, including breach of contract, fraud, and accounting) & 214 (claims with 3-year statute of limitations, including conversion and malpractice). 11 The School recognizes this, but relies on CPLR 213(8), which provides that in “an action based upon fraud[,] the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the_ person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it” (emphasis added). It is well settled that “[t]he inquiry as to whether a plaintiff could, with reasonable diligence, have discovered the fraud turns on whether the plaintiff was possessed of knowledge of facts from which [the fraud] could be reasonably inferred.” Sargiss v Magarelli, 12 NY3d 527, 532 (2009) (emphasis added; quotation marks omitted); see Aozora Bank. Ltd. v Deutsche Bank Secs. Inc., 13 7 AD3d 685, 689 (1st Dept 2016) (“Where the circumstances are such as to suggest to a person of ordinary intelligence the probabi,Iity that he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the fraud will be imputed to him.”) (emphasis added), quoting CIFG Assurance N. Am., Inc. v Credit Suisse Secs. (USA) LLC, 128 AD3d 607, 608 (!st Dept 2015), and citing Gutkin v Siegal, 85 AD3d 687, 688 (I st Dept 2011) (“The test as to when fraud should with reasonable diligence have been discovered is an objective one.”) (emphasis added).”