In Menaker & Herrman, LLP v Foster 2017 NY Slip Op 31456(U) July 7, 2017 Supreme Court, New York County Docket Number: 651969/2016  Judge Manuel J. Mendez presents a primer on the law of legal fee billing and retainer agreements.

“The complaint alleges that on May 3, 2013, defendant, Larry J. Guffey, an at1:orney, retained the plaintiff on behalf of his daughter and son-in-law, Martha G. Foster and Matthew Foster (the “Foster defendants”) and his two minor grandchildren. Plaintiff commenced an action titled Foster v. Svenson, filed under Index Number 651826/2013, in Supreme Court New York County alleging violations of New York Civil Rights Law §50-§51 and for intentional infliction of emotional distress against Arne Svenson, an artist, after he used a telephoto lens to photograph the Foster defendants and their minor children for his artwork, titled “The Neighbors,” without obtaining approval (Mot., Exh. 1 and 1A).

Justice Eileen A. Rackower’s August 5, 2013 Decision/Order denied defendants’ motion for an injunction and granted Arne Svenson’s cross-motion to dismiss the action filed under 651826/13 (Opp. Exh. 16). On April 9, 2015 the Appellate Division 1st Department affirmed Justice Rackower’s decision (Foster v. Svenson, 128 A.O. 3d 150, 7 N.Y.S. 3d 96 [1st Dept., 2015]).”

“The documentary evidence produced by the defendants does not conclusively establish a defense as a matter of law or utterly refute plaintiff’s claims. Defendants arguments that the documentary evidence shows the billing statements are excessive and should be reduced, does not conclusively establish a defense. The bills are sufficiently detailed. The documentation showing rejection of some of plaintiffs’ bills does not utterly refute the claims asserted in the complaint. ”

“Defendants have not shown that the complaint fails to state legally recognizable causes of action. Plaintiff sought arbitration of the full amount of the disputed legal fees, and provided proof of same as Exhibit D to the Complaint, in compliance with 22 N.Y.C.R.R. 137.6 [b]. Arbitration was rejected by the defendants (Opp. Exhs. 63 and 64). Defendants signed two retainer agreements without objection. They have not shown that the cause of action for breach of contract is not stated. The failure to comply with the rules on retainer agreements (22 N.Y.C.R.R. 1215.1 ), does not preclude a law firm from suing to recover legal fees under such theories as services rendered, quantum meruit, and account stated (Kueker & Bruh, LLP v. Sendowski, 136A.D. 3d 475, 24N.Y.S. 3d 507 [1st Dept, 2016] citing to Roth Law Firm PLLCv. Sands, 82 A.O. 3d 675, 920 N.Y.S. 2d 72 [1st Dept., 2011]). Plaintiff is not prohibited from asserting causes of action under quantum meruitand account stated for legal fees, without a retainer agreement Plaintiff agreed to a fixed fee for the appeal which was billed and treated differently from the work perfonned in the lower court action. This could be deemed as creating a second representation and create a new period for objection, but does not eliminate the potential claim (See Boies, Schiller & Flexner LLP v. Modell, 129 A.O. 3d 533, 11N.Y.S.3d 60 [1st Dept. ,2015]). Defendants received bills and partial payment was made by Larry J. Guffey. There has been no showing by the defendants that the rules governing contingency fees for personal injury and wrongful death cases applies to intentional infliction of emotional distress and violation of privacy claims, or that plaintiff did not provide legal services. Potentially meritorious causes of action for account stated and quantum meruit have been stated in the complaint.”

“Plaintiff under Motion Sequence 003 pursuant to CPLR §3212[a] seeks partial summary judgment on the third cause of action for account stated. Plaintiff refers to the two retainer agreements, copies of bills sent to defendants, proof of Larry J. Guffey’s partial payments, together with proof of attempts to resolve the dispute through arbitration that were rejected by defendants (Mot. Seq. 003, Exhs. 1, 2-19, 200). Plaintiff claims that although monthly billing throughoutthe litigation was sent to Larry J. Guffey as guarantor, as of December of 2013 the Foster defendants were included in the billing and did not object or question the amounts (Menaker Aff. in Opp. Exhs. 35-50). ”

“Defendants have raised issues of fact warranting denial of partial summary on account stated. Plaintiff concedes that the billing sent directly to the Foster defendants for the first time in December of 2013, after the final determination by the Supreme Court and the work on the Appeal had commenced. The billing sent to the Foster defendants was inconsistent and partial and does not make a prima facie case for summary judgment. The March 18, 2014 bill included a letter from plaintiff acknowledging Larry J. Guffey’s e-mail complaining of being overcharged and provided forms for the New York County Lawyer Association fee conciliation program (Mot. Exh. 1 C). Larry J. Guffey has raised an issue of fact whether the bills and statements were objected to warranting denial of the relief sought. ”

 

Professional Negligence, especially in the real estate construction field is the source of a number of litigation problems.  Architects routinely use arbitration clauses.  Zoning issues, including the mistaken analysis of what might be built on a specific lot are themselves subject to governmental immunity.  2649 E. 23 LLC v New York City Dept. of Bldgs.  2017 NY Slip Op 31419(U)
June 26, 2017 Supreme Court, Kings County Docket Number: 521977/16 Judge: Reginald A. Boddie involves a claim that a 4-story building was proposed for a lot upon which it could not be built, and then the City “rubber-stamped” an approval.  The 4th story was partially built and had to be removed.  Who is at fault?

If it is the architects, then it will all go to arbitration.  “Moreover, where the language ofthe arbitration clause is broad, “it should be given the full effect of its wording in order to implement the intention ofthe parties” (Dazeo, 225 AD2d at 579, quoting Weinrott v Carp, 32 NY2d 190, 199 [1973]). Paragraph 5.1 broadly states, “Any dispute relating to this Agreement shall be subject to arbitration and will proceed to mediation as a condition precedent.” Accordingly, the parties are directed to proceed to arbitration as stipulated in the contract and as a favored method of dispute resolution in New York (see e.g. Dazeo, 225 AD2d at 199 [citations omitted]). Additionally, plaintiff opposed DSA’s motion to compel arbitration on the grounds that compelling arbitration would extinguish Schneiders’ cross-claims for contribution and indemnification as Schneider Associates and Steven Schneider were not parties to the contract. However, paragraph 5.2 provides, the claim of a non-party may be consolidated or joined or otherwise included in arbitration upon written consent of all parties. Accordingly, DSA’s motion is granted to the extent the parties are compelled to arbitrate, and without prejudice to the Schneider defendants commencing a plenary action for contribution and indemnification upon resolution ofthe arbitration (CPLR 1403; 1404 [b]).”

Meanwhile, forget about suing the City.  “In evaluating whether to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, the pleadings must be given a liberal construction, the allegations accepted as true, and the plaintiff accorded every possible favorable inference (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46,52 [2016]). The decision whether to issue a permit, as here, is a discretionary determination and the actions of the government in such instances are immune from lawsuits based on such decisions (City of New York v 17 Vista Assoc., 84 NY2d 299,307 [1994] [citations omitted]). There is a narrow exception to that rule in cases where the plaintiffs establish that a special relationship exists between themselves and the municipality (Emmerling v Town of Richmond, 13 AD3d 1150, 1151 [4th Dept 2004], citing see Lauerv City of New York, 95 NY2d 95,102-103 [2000]). Here, however, plaintiffs claims against DOB are devoid of any allegation that DOB owed plaintiff a special duty (cf Garrett v Holiday Inns, 58 NY2d 253, 263 [1983]; cf Village of Camden v National Fire Ins. Co. o.f Hartford, 155 Misc 2d 607, 610 [Sup Ct, Oneida County 1992], aff 195 Ad2d 1091 [4th Dept 1993]). Therefore, plaintiffs negligence claim must fail (Valdez v City of New York, 18 NY3d 69,80 [2011]). DOB’s motion pursuant to Article 78 is denied as moot. NYC Charter S 645 (b) (1) provides, in relevant part, “[w]ith respect to buildings and structures, the commissioner shall have the following powers and duties exclusively, subject to review only by the board of standards and appeals as provided by law: to examine and approve or disapprove plans for the construction or alteration of any building or structure.” DOB’s determination, if any, regarding the factual questions raised in the August 28, 2015 Objection Sheet and referred to in the September 8, 2015 notice required an appeal to the Board of Standards and Appeals (BSA) prior to seeking judicial relief (Matter a/Wilkins v Babbar, 294 AD2d 186, 187 [1st Dept 2002] citing Matter a/Toys “R” Us v Silva, 89 NY2d 411, 418 [1996] [reasoning that “[t]he BSA, comprised of five experts in land use and planning, is the ultimate administrative authority charged with enforcing the Zoning Resolution” [citing see NY City Charter SS 659, 666]). However, plaintiff was clear that it was not seeking to challenge the issuance of the pennit or intent to revoke. As such, defendant’s motion, pursuant to Article 78, is denied as moot. DOB’s motion to dismiss, pursuant to CPLR 3211 (a) (7), is granted and the complaint is dismissed against DOB. “

Board of Mgrs. of 100 Congress Condominium v SDS Congress, LLC  2017 NY Slip Op 05414  Decided on July 5, 2017  Appellate Division, Second Department offers an explanation of the difference between breach of contract and negligence in an architectural negligence case.

“The plaintiff, suing on behalf of the unit owners of a condominium building in Brooklyn, commenced this action against the defendants, alleging that they negligently built and inspected the building. The defendant Kline Engineering, P.C. (hereinafter KEPC), was retained by the defendant Second Development Services, Inc. (hereinafter SDS), which was alleged to be an agent of the sponsor (i.e., the developer), to perform inspections of the building throughout its construction. KEPC asserted that its agreement with SDS was verbal. The plaintiff asserted two causes of action against KEPC. The sixth cause of action alleged breach of contract on the theory that the plaintiff is a successor-in-interest or a third-party beneficiary of KEPC’s verbal agreement with SDS. The eighth cause of action alleged professional malpractice. KEPC moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint and all cross claims insofar as asserted against it, arguing that the causes of action alleging breach of contract and professional malpractice were barred by documentary evidence (see CPLR 3211[a][1]) and failed to state a cause of action (see CPLR 3211[a][7]). The Supreme Court denied those branches of KEPC’s motion.”

“Taking the allegations in the complaint as true, and affording the plaintiff every favorable inference, the plaintiff sufficiently pleaded a cause of action alleging breach of contract against KEPC based on the theory that it is a successor-in-interest to KEPC’s contract with SDS (see Board of Mgrs. of Alfred Condominium v Carol Mgmt., 214 AD2d at 382; see also 17 E. 96th Owners Corp. v Madison 96th Assoc., LLC, 60 AD3d at 481). Moreover, KPEC did not put forth any documentary evidence that would refute the plaintiff’s allegations as a matter of law (see Encore Lake Grove Homeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d at 883; Granada Condominium III Assn. v Palomino, 78 AD3d at 997). Accordingly, the Supreme Court properly denied that branch of KEPC’s motion which was to dismiss the sixth cause of action insofar as asserted against it.

The Supreme Court, however, should have granted that branch of KEPC’s motion which was pursuant to CPLR 3211(a) to dismiss the eighth cause of action, alleging professional malpractice, insofar as asserted against it. The plaintiff alleged in the eighth cause of action, in effect, that KEPC negligently performed the services it was retained to complete. “[M]erely alleging that a party breached a contract because it failed to act with due care will not transform a strict [*3]breach of contract claim into a negligence claim” (Verizon N.Y., Inc. v Optical Communications Group, Inc., 91 AD3d 176, 180; see Encore Lake Grove Homeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d at 883). Here, the plaintiff’s allegations of negligence are merely a restatement of the contractual obligations asserted and seek the identical economic damages as in the sixth cause of action alleging breach of contract (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 390; Mack-Cali Realty, L.P. v Everfoam Insulation Sys., Inc., 129 AD3d 676, 679; Encore Lake Grove Homeowners Assn., Inc. v Cashin Assoc., P.C., 111 AD3d at 883; Park Edge Condominiums, LLC v Midwood Lbr. & Millwork, Inc., 109 AD3d 890, 891).”

A couple of entrepreneurs meet in college and start up a translation company.  Many years later, successful as hell, they embark on a new hobby…litigation.  Both take to the sport and become pros. Shawe v Elting 2017 NY Slip Op 31406(U) June 29, 2017 Supreme Court, New York County Docket Number: 153375/2016 is a wonderful story, well told by Judge Shirley Werner Kornreich.  It touches, tangentially, on Judiciary Law § 487.

“These cases concern the acrimonious disputes between Elizabeth Elting and Philip Shawe that resulted in the Delaware Court of Chancery (Bouchard, C.) ordering the forced sale of Transperfect, the company they co-founded in college. In a 104-page post-trial opinion dated August 13, 2015, Chancellor Bouchard appointed a custodian and ordered the company’s sale because:

the state of management of the corporation has devolved into one of complete dysfunction between Shawe and Elting, resulting in irretrievable deadlocks over significant matters that are causing the business to suffer and that are threatening the business with irreparable injury, notwithstanding its profitability to date. The stockholders of the corporation have stipulated to their inability to elect successor directors, and there is no prospect they will do so in the future …. [A ]ppointment of a custodian to sell the corporation, with a view toward maintaining the business as a going concern and maximizing value for the stockholders, affords the only just and viable remedy under the unique circumstances of this case. ”

“An extensive review of the Post-Trial Decision, with which the court assumes familiarity, makes it clear that while there are no angels in this case, Elting and Shawe are not on anything close to equal equitable footing. Simply put, the Post-Trial Decision was a massive win for Elting; it amounts to a worst-case-scenario loss for Shawe. Shawe’s displeasure is manifest in his vigorous appeal to the Supreme Court of Delaware and political campaign to limit the Court of Chancery from ordering the sale of a profitable closely-held company.”

“Finally, Shawe asserts a claim under Judiciary Law§ 487 based on a defamation counterclaim Elting filed on July 16, 2014 in another action commenced by Shawe (and still pending in a non-commercial part), in which he alleged that Elting assaulted him. See Shawe v Elting, Index No. 155890/2014, Dkt. 22 at 14-16 (Sup Ct, NY County). This claim borders on the frivolous.

On June 10, 2014, “Shawe went to Elting’s office to confront her about [a] tax distribution.” Post-Trial Decision, 2015 WL 4874733, at *20. “According to Elting, Shawe would not leave her office despite repeated requests and blocked her from closing the door by putting his foot in it, at which point Elting tried to move it with [her] foot.”. Id. (citation and quotation marks omitted). “Curiously, while his foot was in the door, Shawe called one of his attorneys from Sullivan & Cromwell, rather than focus on resolving the situation at hand (i.e., removing his foot from the door).” Id. The very next day: On June 11, 2014, Shawe filed a “Domestic Incident Report” in which he accused Elting of pushing him and kicking him in the ankle the previous day. In a parenthetical at the very end of the report, Shawe identified Elting as his exfiancee, even though their engagement ended seventeen years earlier, apparently to ensure that the matter would be treated as a domestic violence incident and require Elting’s arrest. Shawe’s denial of reporting the incident in this manner to have Elting arrested is not credible. The police called Elting the next day and told her she was going to be arrested for assault and battery. After Elting’s lawyers intervened, the charges were dropped, but Shawe filed a civil tort case against her that remains pending. Id. at *21.

Shawe now complains that, before alleging in his tort case that there was an active police investigation, Elting’s counsel should have informed him that they knew that, by June 18, 2014, the police had decided not to arrest Elting. Shawe cynically maintains that, notwithstanding his deceptive reporting of the alleged assault to the police, the failure of Elting’s counsel to notify him of the police decision amounts to egregious conduct sufficient to give rise to a claim under section 487. As explained below, he is wrong. “

The statute, which has been with us in one form or another for more than 800 years does not mention “egregious” nor “chronic” nor a “pattern of delinquent behavior.”  487 is handled differently in the First Department, and in the other Departments, there appears to be a lower threshold for its application.  Here in Gelwan v Youni Gems Corp.  2017 NY Slip Op 05187
Decided on June 27, 2017  Appellate Division, First Department , as so often is found, the AD determined that there was no sufficiently egregious conduct.

“Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered March 19, 2015, which, to the extent appealed from as limited by the briefs, granted plaintiff’s motion to dismiss defendants’ counterclaims, unanimously affirmed, without costs. Order, same court and Justice, entered August 12, 2014, which, to the extent appealed from, directed the parties to proceed to arbitration before the American Arbitration Association (AAA) of the first, sixth, seventh, eighth, and ninth causes of action, which were severed and dismissed from the action, unanimously modified, on the law, to dismiss, sever, and refer to arbitration before AAA the part of the eighth cause of action, which seeks a charging lien, addressed to fees covered by the retainer agreement, and to reinstate the sixth cause of action, which seeks an account stated, and otherwise affirmed, without costs.

Plaintiff seeks to recover legal fees and costs relating to his successful representation of defendants in an action involving a joint venture enterprise called Bassco Creations, pursuant to a contingency fee retainer agreement that contained an arbitration provision, and for work performed outside of the retainer agreement.

The motion court correctly found that defendants’ counterclaims do not allege conduct sufficiently egregious to support a Judiciary Law § 487 claim (see Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12 NY3d 715 [2009]).”

Our mission is to cover and report every legal malpractice case we can fine.  In Kings County, there are fewer decisions published electronically than in other places.  So, when the Appellate Division rules without giving any of the underlying facts, we traditionally go to the electronic filing system, and if the case is too old, to WebCivilSupreme.  However, the only published decisions in Seidman v Einig & Bush LLP  2017 NY Slip Op 05257  Decided on June 28, 2017  Appellate Division, ,Second Department are old Orders to Show Cause.  So, motion denied, decision affirmed, no reasons or facts.

“Here, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint (see Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 454; Velie v Ellis Law, P.C., 48 AD3d 674, 675; Pedro v Walker, 46 AD3d 789, 790). The defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law since they failed to show that the plaintiff was unable to prove at least one of the essential elements of his legal malpractice cause of action (see Rosenstrauss v Jacobs & Jacobs, 56 AD3d at 454; Velie v Ellis Law, P.C., 48 AD3d at 675; Pedro v Walker, 46 AD3d at 790). Thus, we need not address the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”

Cordero v Koval Retjig & Dean PLLC  2017 NY Slip Op 05036  Decided on June 20, 2017 Appellate Division, First Department presents an interesting question.  How does continuous representation in legal malpractice affect the statute of limitations amid lateral movement of attorneys from one firm to the next?

In this case, the matter travelled with the attorney from firm 1 to firm 2, and tolled the statute:

“The claim for malpractice accrued when defendants failed to timely file a notice of claim (see General Municipal Law § 50-e) upon the City of New York and the New York City Department of Transportation after plaintiff was allegedly injured in a fall from his motorcycle because he struck a defectively-placed construction plate in the road (see generally Glamm v Allen, 57 NY2d 87, 93 [1982]). However, the evidence raised triable issues whether the malpractice statute of limitations (CPLR 214[6]) was tolled under the continuous representation doctrine. Mark Koval, an attorney formerly employed by defendant law firm, joined another law firm at or about the time plaintiff’s personal injury case was transferred to such new law firm. Defendants admit that plaintiff’s case was transferred to the new firm, and Koval does not deny having worked on the case at either the old or new firm (see generally Antoniu v Ahearn, 134 AD2d 151 [1st Dept 1987]; HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 63 AD3d 534, 535 [1st Dept 2009]). Although Koval claims he subsequently left the new firm and did not take plaintiff’s case with him, there is no evidence that plaintiff was ever informed of, or had [*2]objective notice of, Koval’s departure such as to end the continuous representation circumstance and the tolling of the statute of limitations (see Shumsky v Eisenstein, 96 NY2d 164, 167-169, 170 [2001]).”

We are pleased to say that the Court of Appeals answered a certified question in our favor in Gevorkyan v Judelson   2017 NY Slip Op 05176  Decided on June 27, 2017  Court of Appeals
DiFiore, Ch. J. a case we have labored on over the past several years.  In this novel question of law, the Court of Appeals defined when a bail bond agent earns a bail bond premium.  Amici briefs suggested that there is widespread abuse of criminal defendants regarding bail bond premiums.

“The United States Court of Appeals for the Second Circuit, by certified question, has asked us whether an entity engaged in the bail bond business may retain the premium paid on [*2]a criminal defendant’s behalf when bail is denied and the defendant is never released from custody. Inasmuch as the Insurance Law provides that such an entity does not earn a premium for a bail bond if a court refuses to accept the bond following a bail source hearing, we answer in the negative.

I.

In 2011, Arthur Bogoraz was indicted on state law fraud charges and bail was fixed at $2 million. Plaintiffs, the wife and family friends of Bogoraz, contacted defendant Ira Judelson, a licensed bail bond agent affiliated with the International Fidelity Insurance Company (International Fidelity), a bail bond surety. Judelson, on behalf of International Fidelity, entered into an indemnity agreement with plaintiffs whereby International Fidelity agreed to underwrite a bail bond to secure Bogoraz’s release from custody in exchange for a premium of $120,560. Plaintiffs promised to indemnify the bond and provide collateral. Shortly thereafter, plaintiffs paid the premium to Judelson, in trust for International Fidelity. ”

“Further, as discussed above, the bail bond statutes empower a court to examine a posted bail bond and determine whether it should be approved or rejected (see CPL 520.30 [1], [*6][3]; Insurance Law § 6803 [b]). The court may reject the bail bond if it is dissatisfied with the source of the funds, the reliability of the obligors, the value of the security, the qualifications of the surety, or indeed “any feature of the undertaking [that] contravenes public policy” (CPL 520.30 [1]; see also Insurance Law § 6803 [b]). Under Judelson’s interpretation, a court could reject a bail bond following a bail source hearing based on the surety’s qualifications or because the surety failed to properly vet the underlying security, yet, because the surety “posted” bail bond, the surety could still retain the premium. Such an outcome does not comport with the legislative intent to protect against abuses in the bail bond industry.

In short, Insurance Law § 6804 (a) prohibits a bail bond surety from retaining a premium when the criminal defendant is not released on bail.”

High-level employee is the subject of a state investigation along with the Hospital employer.  The investigation and litigation continue and eventually the hospital and the County succeed.  The employee, not so much.  Employee says that had the attorneys filed a certain appeal, he would have been exonerated.  May he sue the attorneys assigned to him, who also represented the County?

Spring v County of Monroe  2017 NY Slip Op 04645  Decided on June 9, 2017  Appellate Division, Fourth Department  says, “no.”

“Memorandum: In this action arising from plaintiff’s employment at defendant Monroe Community Hospital (MCH), plaintiff asserted three causes of action against various defendants. The first cause of action, for legal malpractice, was asserted against defendants Daniel M. DeLaus, Jr., Esq., William K. Taylor, Esq., Brett Granville, Esq., and Merideth H. Smith, Esq. (collectively, County attorneys). The second cause of action, for negligence, was asserted against MCH, the County attorneys, and defendants County of Monroe (County), and Maggie Brooks, as Monroe County Executive. The third cause of action, for defamation, was asserted against Brooks and defendant Karen Fabi. The County, MCH, Brooks, and the County attorneys (collectively, County defendants) and Fabi made separate motions to dismiss the complaint against them. The County defendants and Fabi now appeal from an order that denied the motions, and we modify the order by granting the County defendants’ motion in part and dismissing the first and second causes of action.

On these motions to dismiss, we accept the facts alleged in the complaint as true and accord plaintiff the benefit of every favorable inference (see Daley v County of Erie, 59 AD3d 1087, 1087-1088). According to plaintiff, he became employed by the County in 2001 and became the Executive Health Director/Chief Administrative Officer of MCH in 2004. In February or March 2013, “questions were raised” regarding the treatment of a patient of MCH and, in March 2013, an investigation was commenced by the New York State Department of [*2]Health (DOH) and the New York State Attorney General. The County provided plaintiff with legal representation by the County attorneys. Although plaintiff was assured that there was no conflict of interest, the County attorneys were also representing the County and other MCH staff members, whose interests were adverse to plaintiff. On March 29, 2013, the DOH issued a statement of deficiency that included accusations against plaintiff with respect to the treatment of a patient at MCH. In or around April 2013, the County hired an independent consultant to assist with a response to the statement of deficiencies and to contest DOH’s allegations by preparing and filing an “Informal Dispute Resolution” (IDR/appeal). The consultant invited plaintiff to provide her with any information, and she told plaintiff that she agreed with him that an IDR/appeal should be filed. The written IDR/appeal report was finalized on April 25, 2013 but, at the last minute, the County attorneys decided not to submit it. In plaintiff’s view, the filing of the IDR/appeal was in his best legal interests and would have protected his reputation, his license as a nursing home administrator, and his position as executive director of MCH. On May 8, 2013, plaintiff requested that he be represented by private counsel. The County defendants did not respond to that request and, on May 10, 2013, plaintiff was terminated.

We agree with the County attorneys that Supreme Court erred in denying that part of the motion of the County defendants seeking to dismiss the legal malpractice cause of action, and we therefore modify the order accordingly. It is well established that, “[t]o recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship” (Moran v Hurst, 32 AD3d 909, 910; see Berry v Utica Natl. Ins. Group, 66 AD3d 1376, 1376; Rechberger v Scolaro, Shulman, Cohen, Fetter & Burstein, P.C., 45 AD3d 1453, 1453). In a prior appeal arising from the same incident as here, we determined that plaintiff did not have an attorney-client relationship with the County attorneys inasmuch as “[c]ounsel for the County represented [plaintiff] only in [plaintiff’s] capacity as a County employee” (Matter of Spring v County of Monroe, 141 AD3d 1151, 1152). Consequently, plaintiff is collaterally estopped from claiming here that the County attorneys represented him individually (see generally Buechel v Bain, 97 NY2d 295, 303-304, cert denied 535 US 1096). Thus, the legal malpractice cause of action must be dismissed because there was no attorney-client relationship between plaintiff and the County attorneys (see Berry, 66 AD3d at 1376; Moran, 32 AD3d at 911-912).”

Attorneys and client have a number of related cases arising out of a real estate transaction.  They are in and out of some of the transactions, and other eventually go sour.  How does the continuous representation doctrine play out in this setting?

In RJR Mech. Inc. v Ruvoldt 2017 NY Slip Op 31232(U)  June 8, 2017 Supreme Court, New York County Docket Number: 158764/2015  Judge Jeffrey K. Oing discusses the various principles and application of the continuous representation doctrine.

“On or about August 25, 2016, plaintiff filed a new complaint, which is the subject of this motion, wherein it alleges, again, claims for 1) legal malpractice, and 2) unjust enrichment stemming from defendants’ failure to inform it of the alleged proposed settlement offer as well as failure to prepare for trials and hearings (the “second action”) . As with the allegations in the first action, in this action, plaintiff alleges that in 2002 it retained Ruvoldt to represent it, as the plaintiff, in a mortgage foreclosure action, .which was originally commenced by the lender, but assumed by plaintiff after it had . . \ . acquired the lender’s interest in the mortgage for the Maspeth Property (Norwest Bank Minnesota,. N.A. v E.M.V. Realty Corp., Index No. 20159/200.2 [Sup Ct, Queens County] [the “Norwest Bank action”]) (Verified Complaint)”

“Plaintiff’s new allegations are as follows. Plaintiff alleges that not only did Ruvoldt represent it in the Norwest Bank action,.but he also represented it in another action commenced in 2004 against it and related to the Maspeth Property: EMV Realty Corp. v RJR Mechanical- Inc., ‘Index No. 14778/2004 (Sup Ct, Queens County) (the “EMV Realty actionn). Plaintiff alleges it retained Ruvoldt to represent it and one of its principalsj Roy Leibo~itz (“Leibowitzn) in the EMV Realty action (Verified Complaint, !! 14-15). The EMV Realty action has laid dormant since 2005, save for a single 2011 substitution of counsel (Elman Affirm., Ex. C). On February~ry 11, 2011, Kevin J. Espinosa (“Espinosan), an attorney at Hodgson Russ, sent an email to plaintiff’s representative, Randy Karpman (“Karpman), notifying plaintiff th~t an appeal for the Norwest Bank action needed to be perfected by March 23, 2011 .(Verified :Complaint, ! 22; Espinosa Affirm, Ex. A). In the email, Espinosa advised Karpman that if he did not hear from plaintiff by February 25, 2011 defendants would no longer be able to represent it on the appeal (Id.). In. this email, Espinosa did not mention anything about withdrawing from the EMV Realty action or from other aspects of the Norwest Bank action (Verified Complaint, ! 22; Espinosa Affirm., Ex. A). ”

“The continuous representation doctrine, which is the offspring of the continuous treatment doctrine, recognizes that a layperson seeking legal assistance “[h]as a right to repose confidence ~n the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services· are rendered” (Greene v Greene, 56 NY2d 86, 94 [1982]; Matter of Lawrence, 24 N~3d 320, 342-343 [2014]). “The continuous representation doctrine tolls a statute of limitations where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Zorn v Gilbert, 8 NY3d 933, 934 [2007] [internal quotations and citations omitted]). The two prerequisites needed to invoke a continuous representation toll are 1) a claim of misconduct regarding the mann~r in which the profession~l services were performed,· and 2) the ongoing provision bf professional services.with respect to the contested matter or transaction (Matter of Lawrence, 24 NY3d at 342). The ongoing representation must be specifically related to the matter in which the attorney committed the alleged malpractice (Id.; Johnson v Proskauer Rose LLP, 129 AD3d 59, 68 [1st Dept 2015]). The continuous representation doctrine is inapplicable where “plaintiff’s allegations establish defendant[s’] failures within a continuing professional relationship, not a course of representation as to the particular problems (conditions) that gave rise to plaintiff’s malpractice claims” (Id. at 341-342 [internal quotations and citations·omitted]). Here, plaintiff cont’ends that prior to its decision to substitute defendants as counsel it was unaware that defendants no longer intended t6 represent·~t and that defendants’ letters were not indicative of such. Rather plaintiff asserts that defendants’. letters established that they would continue to represent it in the settlement of the Norwest Bank action and the EMV Realty aeration.

“Further, and more importantly, in order for a legal malpractice claim to be subject to the continuous representation toll, the ongoing representation must be directly linked to the alleged malpractice. Given that plaintiff has failed to plead with sufficiency that the EMV Realty action is related to the underlying allegations of legal malpractice, the continuous representation doctrine cannot be transferred to the second action based on the EMV Realty action. Based on the foregoing, plaintiff’s legal malpractice claim is time barred.”