Really, the numbers boggle.  Clients collectively lost a $3 Million tax deduction when one of the trustees, without telling anyone else, waived the claim.  A professional malpractice claim followed in 1993 Trust of Joan Cohen v Baum    2017 NY Slip Op 30894(U)  May 2, 2017  Supreme Court, New York County  Docket Number: 150058/2015  Judge: Shirley Werner Kornreich .  Can the defendants seek to push liability onto attorneys?  Not in this case.

“On January 5, 2015, the plaintiffs in the main action, the 1993 Trust of Joan Cohen and the 1993 Trust of Ellen Hakim (collectively, the Trusts), filed a complaint against Baum and his employer, ABA, in which the principal allegation is that Baum, a former2 trustee of the Trusts who provided the Trusts with tax and accounting services, engaged in the ultra vires act of signing, on behalf of each of the Trusts, an IRS Form 870-PT (the Waivers) (Dkt. 63 & 64), which foreclosed the Trust’s ability to contest a particular tax matter with the IRS. To explain, the Trusts are members of Langham, a Delaware LLC that owns a building located at 135 Central Park West. As members of an LLC, the Trusts pay taxes on a pass-through basis. In October 2011, the IRS determined that a May 2005 charitable tax deduction taken by Langham’s members was improper. The deduction related to Langham’s non-cash $86 million charitable contribution of a conservation easement to the National Architectural Trust, which was based on the value of the building’s fa<;:ade being preserved. The Trusts’ respective pro rata deductions were $5,848,000. Langham’s members would go on to challenge the IRS’s position regarding the propriety of their charitable deduction, and in the end, settled for about half of the deduction, without the imposition o_f penalties or interest. In other words, if the Trusts participated in the settlement, they would have been able to maintain a deduction of $2,924,000. ”

“The Trusts, however, were not permitted to participate in the settlement because Baum waived their right to do so by signing the Waivers. The principle issue in the main action is whether Baum had the authority to do so. Baum was one of three trustees. Joan Cohen and Ellen Hakim were the other trustees. It is undisputed that under section 5 of the agreements governing Baum ‘s role as co-trustee, Trust Agreements dated as of February 4, ·1993, Baum lacked the unilateral authority to sign the Waivers; agreement by a majority of the trustees was required. See Dkt. 33 at 13 & Dkt. 34 at 13. It also is undisputed that he signed the Waivers without obtaining such majority consent. Baum, who always prepared and signed the tax returns, did not even notify the other trustees of the IRS’s deficiency notices or that he had received the Waivers, let alone that he intended to sign them.”

“On July 21, 2016, the Baum Parties filed the TPC, which contains two causes of action. See Dkt. 141. The first is a claim that Manocherian, the “Tax Matters Partners of Langham”, 3 breached sundry duties to the Trusts. For instance, Baum complains that Manocherian failed to disclose the IRS ‘s audit of Langham. As explained below, a detailed merits analysis of Manocherian’ s alleged wrongdoing is unwarranted because, even assuming the claims made against him are well pleaded, the Baum Parties lack standing to maintain such claims. Simply put, as a former trustee, Baum has no right to prosecute these derivative claims on behalf of the Trusts. ”

“The Baum Parties’ claims against Manocherian are derivative. They are all based on Manocherian’s duties to Langham as its “Tax Matters Partner”. While the precise meaning of “Tax Matters Partner” is somewhat unclear, there is no dispute (and the court assumes for the purpose of this motion) that Manocherian had contractual and fiduciary duties to Langham and the Trusts with respect to the tax matters he handled on their behalf. A successful claim for breach of such duties would result in recovery going to Langham or the Trusts. Baum, to be clear, was not a beneficiary, and thus a loss suffered by the Trusts is not a loss that affects Baum. Baum, personally, could not recover from Manocherian . “

Common to legal malpractice litigations are changes to attorney representation during the underlying case.  These changes of attorneys raise not only the statute of limitations, but also the successor counsel principle.  Hufstader v Friedman & Molinsek, P.C. 2017 NY Slip Op 03996
Decided on May 18, 2017 Appellate Division, Third Department is an excellent example.

“In December 2005, plaintiff retained defendants to represent her in an action for divorce. On October 1, 2007, on the first day of trial in the divorce action, plaintiff’s husband moved to dismiss the complaint for failure to establish grounds for divorce, and Supreme Court (Seibert, J.) granted the motion and dismissed the complaint. In September 2010, plaintiff commenced an action against defendants for, as pertinent here, legal malpractice and breach of contract related to the divorceaction. Defendants moved for summary judgment dismissing the complaint, which Supreme Court (Crowell, J.) granted on the grounds that plaintiff failed to establish proximate cause as to her legal malpractice cause of action and that the breach of contract cause of action was duplicative of the malpractice claim [FN1]. Plaintiff appeals.

To succeed upon the legal malpractice claim, plaintiff was required to demonstrate that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,” that this failure was the proximate cause of actual damages to plaintiff, and that “the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Levine v Horton, 127 AD3d 1395, 1397 [2015] [internal quotation marks and citations omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Miazga v Assaf, 136 AD3d 1131, 1133 [2016], lv dismissed 27 NY3d 1078 [2016]). Upon their application for summary judgment, defendants “were required to present evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements” (Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391 [2010] [internal quotation marks and citation omitted]; see Miazga v Assaf, 136 AD3d at 1133-1134).

Plaintiff’s primary contention is that defendants’ alleged mistakes resulted in the dismissal of the underlying divorce action, and thus compelled her to subsequently enter into a separation agreement with her husband. One of the arguments raised by defendants in opposition is that the circumstances of plaintiff’s execution of the separation agreement, while represented by successor counsel, establish that defendants cannot be the proximate cause of plaintiff’s alleged damages. Generally, the settlement of an underlying action will not preclude a claim for legal malpractice (see Schrowang v Biscone, 128 AD3d 1162, 1164 [2015]; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641 [2008]; Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377 [2007]). However, the element of proximate cause cannot be established where a plaintiff has entered into a settlement while represented by successor counsel and the “successor counsel had sufficient time and opportunity to adequately protect [the] plaintiff’s rights” in the underlying action (Somma v Dansker & Aspromonte Associates, 44 AD3d at 377; see New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1349 [2015]; Alden v Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz [“The People’s Lawyer”], 91 AD3d 1311, 1311 [2012]; Katz v Herzfeld & Rubin, P.C., 48 AD3d at 641).”

“Accordingly, Supreme Court properly granted defendants’ motion for summary judgment dismissing this cause of action (see Miazga v Assaf, 136 AD3d at 1134-1135).”

Judiciary Law § 487 is a harsh, almost medieval law, with treble damages and a potential criminal conviction lurking.  The Appellate Division has said that it is not lightly granted, and in Brookwood Cos., Inc. v Alston & Bird LLP  2017 NY Slip Op 00535 [146 AD3d 662]  January 26, 2017  Appellate Division, First Department looks at a claim of churning for large fees.  The conduct has to be rather bad.  How bad (or egregious)?

“In support of its Judiciary Law § 487 (1) claim, Brookwood alleges that A&B was deceitful by inducing Brookwood to retain it as its litigation counsel. Brookwood claims such deceit was perpetuated a number of ways. One way was by A&B failing to disclose that the Nextec-related patent noninfringement opinions A&B had prepared could not be used in the patent action to defend Brookwood against claims that it had acted willfully. Brookwood maintains that the reason A&B did not use them was that it would have resulted in the waiver of the attorney-client privilege. Brookwood also claims that the reason A&B litigated the patent action in the manner it did was to ensure that the case would continue, essentially “churning” the case for A&B’s own pecuniary gain. The motion court properly dismissed the Judiciary Law § 487 claim because there are insufficient facts from which to conclude that A&B intentionally deceived Brookwood, or that A&B otherwise acted so egregiously that Judiciary Law § 487 was violated (Agostini v Sobol, 304 AD2d 395, 396 [1st Dept 2003]; Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12 NY3d 715 [2009]). Brookwood’s arguments that A&B could not use its noninfringement opinions in the patent litigation because it would have waived the attorney-client privilege is incorrect as a matter of law. In re Seagate Tech., LLC (497 F3d 1360, 1374 [Fed Cir 2007], cert denied 552 US 1230 [2008])[FN3] held that the assertion of an advice of counsel defense in a patent infringement action does not automatically constitute a waiver of the attorney-client privilege. We recognize that the opinion of counsel “may be relevant to the issue of willful infringement, for timely consultation with counsel may be evidence that an infringer did not engage in objectively reckless behavior” (Aspex Eyewear Inc. v Clariti Eyewear, Inc., 605 F3d 1305, 1313 [Fed Cir 2010]). Even if the issue of attorney-client [*5]waiver was open to dispute, it had no bearing in the patent action because willfulness was never reached. Thus, the facts alleged do not support a finding of an intent to deceive or a chronic and extreme pattern of legal delinquency causing damages to Brookwood (Wailes v Tel Networks USA, LLC, 116 AD3d 625, 625-626 [1st Dept 2014]).”

 

Did the defendants wait too long to seek attorney fees as prevailing parties?  If they did wait too long, it could be malpractice.  In Smith, Gambrell & Russell, LLP v Telecommunication Sys., Inc.  2017 NY Slip Op 30951(U)  May 5, 2017  Supreme Court, New York County  Docket Number: 653476/2016  Judge: Anil C. Singh sits (in effect) as an Appellate Court and renders judgment on whether the attorneys waited too long.

“Plaintiff law firm Smith, Gambrell & Russell, LLP (“plaintiff’ or “SGR”) moves pursuant to CPLR 321 l(a)(l) and (7) to dismiss defendant Telecommunications Systems, Inc.’ s (“defendant” or “TCS”) counterclaim alleging legal malpractice, ·· contending that it did not miss a statutory 14-day deadline under Rule 54(d)(2)(B) of the Federal Rules of Civil Procedure for filing a motion for attorneys’ fees as the deadline was tolled while post-judgment motions were pending in the underlying federal matter. Defendant opposes the motion. ”

“TCS contends that SGR sought fees based on a sanctions argument not because of difficulties in establishing TCS as the “prevailing party” – the judgment expressly held that TCS was the prevailing party- but because SGR had missed the deadline for an attorneys’ fee application set by Rule 54(d)(2)(B). Neither TCS nor SGR states whether the Court ever decided the motion for sanctions. SGR points out that, after the motion for sanctions was filed, Cassidian and TCS settled their dispute, and all pending actions and appeals were withdrawn by the parties on December 18, 2015 (SGR’s Memorandum of Law dated Nov. 11, 2016, p. 7). The counterclaim asserts a single cause of action for legal malpractice alleging that by failing to file a timely motion for attorneys’ fees, SGR breached its duty of care (Counterclaim, p. 20, para. 96). TCS seeks damages in the sum of $3.4 million. ”

“There are numerous federal cases holding that a motion for attorneys’ fees is timely under Rule 54(d)(2)(B) when filed within 14 days after the entry of judgment, or within 14 days of the resolution of post-judgment motions. For example, in Sorenson v. Wolfson, 170 F.Supp.3d 622 (S.D.N.Y. 2016), the Court held that a postjudgment motion revives the time to seek legal fees regardless of whether or not an initial application was made during the 14-day period following entry of the original judgment (id. at 628). Other federal district and circuit courts have reached the same conclusion (see, for example, SAS Inst .. Inc. v. World Programming Ltd., 2016 WL 3920203, at *3 (E.D.N.C. July 15, 2016) (“After disposition of defendant’s [post~judgment motions], the filing period for attorney’s fees began anew.”); Waltrous v. Bomer, 995 F.Supp.2d 84, 88 (D. Conn. 2014) (“[A] party’s motion for attorney’s fees is timely, unless filed outside the fourteen-day window following the court’s last ruling on any pending [post-judgment] motions.”); Drumgold v. Callahan, 806 F.Supp.2d428, 435 (D. Mass. 2011) (“The overarching rule is that a motion for attorneys’ fees ‘is timely filed if filed no later than 14 days after the resolution of [post-trial motions].”‘) (citing Weyant v. Okst, 198 F .3d 311, 315 (2d Cir. 1999); Chirco v. Charter Oak Homes. Inc., 2008 WL 1743343, at *8 (E.D. Mich. Apr. 11, 2008) (“Where a post-judgment motion has been filed, the time limit shall begin to run upon the denial of the motion.”); Bio-Med. Applications of Tex., Inc. v. BAP-FMC San Antonio, Ltd., 2006 WL 2728915, at *1 (W.D. Tex. July 7, 2006) (“Plaintiffs motion for attorney’s fees was filed within fourteen days of the order disposing of plaintiffs [post-judgment motion]  The motion is therefore timely.”) It is noteworthy that in four of the above cases, the prevailing party filed a motion for attorneys’ fees after the initial 14-day deadline expired. Likewise, we note that TCS has not cited a case setting forth an inflexible – and arguably irrational – holding that a motion for attorneys’ fees should have been filed within 14 days of the initial entry of judgment even where post-judgment motions were filed .”

“The documentary evidence shows unambiguously that post-judgment motions were filed in the Cassidian matter; the Court issued its final ruling on the postjudgment motions on April 20, 2015; and on May 4, 2015, SGR made a timely motion to recover legal fees as a sanction (Rosenthal Aff., exhibits C, D, E, F). The Court finds that the documentary evidence utterly refutes the allegation that SGR failed to make a timely motion for attorneys’ fees. The counterclaim fails to state a cause of action for malpractice predicated on the missed deadline. Accordingly, it is ORDERED that the motion is granted, and the counterclaim is dismissed pursuant to CPLR 321 l(a)(l) and (7) without leave to replead. ”

 

Was there an attorney-client relationship or not?  That will be the central issue in Prott v Lewin & Baglio, LLP  2017 NY Slip Op 03786  Decided on May 10, 2017  Appellate Division, Second Department.  Defendants sought to prove at the pre-answer stage that the relationship had ended.  The documentary proof was incompetent for purposes of CPLR 3211(a)(1).

“The plaintiff commenced this action against the defendants, inter alia, to recover damages for legal malpractice. The plaintiff alleged that, although he retained the defendants to prosecute an action on his behalf, the defendants failed to commence the action before the expiration of the applicable statute of limitations in December 2012. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, and the Supreme Court denied the motion.

“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law” (Mawere v Landau, 130 AD3d 986, 987 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). The evidence submitted in support of such motion must be ” documentary'” or the motion must be denied (Fontanetta v John Doe 1, 73 AD3d 78, 84, quoting Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:10, at 22; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714). In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be “unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]). “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” (25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850, 851; see Attias v Costiera, 120 AD3d 1281, 1283; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Granada [*2]Condominium III Assn. v Palomino, 78 AD3d at 997; Fontanetta v John Doe 1, 73 AD3d at 86).

Here, the evidence submitted by the defendants, which included a letter dated September 28, 2012, purporting to terminate the attorney-client relationship between the plaintiff and the defendants, did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) and, in any event, failed to utterly refute the plaintiff’s factual allegations, thereby failing to conclusively establish a defense as a matter of law (see Mawere v Landau, 130 AD3d at 990; Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792; 25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d at 851; Louzoun v Kroll Moss & Kroll, LLP, 113 AD3d 600, 601-602). Therefore, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the legal malpractice cause of action.”

It seems that when the husband was injured, the defendant law firm sued for both him and the wife (in loss of consortium).  Years later it was said that the plaintiff signed a release for her “loss of services” claim.  She denies settling her portion of the case.  What happened?  Were they now divorced and no longer allies?

Anderson v Dinkes & Schwitzer, P.C.  2017 NY Slip Op 03721  Decided on May 10, 2017
Appellate Division, Second Department is a win for the attorneys.

“In 2003, the plaintiff’s then husband, the defendant Yoni Anderson (hereinafter Yoni), retained the defendants Dinkes & Schwitzer, P.C. (hereinafter the Dinkes firm), William Schwitzer, and Michael Kimmelman to represent him in filing a personal injury action (hereinafter the prior action), in which a claim for loss of services was asserted on behalf of the plaintiff, allegedly without her knowledge. On June 10, 2009, following negotiations to settle the prior action, the plaintiff signed a document stating, inter alia, that she agreed to receive $200,000 from the settlement proceeds “as full and final compensation for her loss of services claim.” In February 2012, the plaintiff commenced the instant action against, among others, the Dinkes firm, Schwitzer, and Kimmelman, seeking, inter alia, to recover damages for legal malpractice and fraudulent concealment, based on the alleged failure to disclose her status as a plaintiff in the prior action and that she was accepting $200,000 in full settlement of her claim in that action. The plaintiff also asserted a cause of action alleging notarial misconduct against the defendant Alice Lin, a notary public who notarized documents including a general release that allegedly contained the plaintiff’s forged signature. Thereafter, the Dinkes firm, Schwitzer, and Lin (hereinafter collectively the Dinkes defendants) moved for summary judgment dismissing the complaint insofar as asserted [*2]against them, and the plaintiff cross-moved, among other things, to compel the Dinkes defendants and Kimmelman to appear for depositions. In an order dated February 3, 2015, the Supreme Court, inter alia, granted the Dinkes defendants’ motion for summary judgment and denied that branch of the plaintiff’s cross motion which was to compel depositions.

” A party is under an obligation to read a document before he or she signs it, and a party cannot generally avoid the effect of a [document] on the ground that he or she did not read it or know its contents'” (Fulton v Hankin & Mazel, PLLC, 132 AD3d 806, 808, quoting Martino v Kaschak, 208 AD2d 698, 698). Generally, a cause of action alleging that the plaintiff was induced to sign something different from what he or she thought was being signed only arises if the signer is illiterate, blind, or not a speaker of the language in which the document is written (see Ackerman v Ackerman, 120 AD3d 1279, 1280). Here, the Dinkes defendants established their prima facie entitlement to judgment as a matter of law dismissing the causes of action asserted against the Dinkes firm and Schwitzer by presenting evidence that the plaintiff could read and understand English, that she had the opportunity to read the document dated June 10, 2009, which expressly stated that she was accepting $200,000 “as full and final compensation for her loss of services claim,” and that she never expressed any difficulty understanding the terms of the document (see Matter of Augustine v BankUnited FSB, 75 AD3d 596, 597; Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 788). In opposition, the plaintiff failed to raise a triable issue of fact as to whether she was incapable of understanding the document signed by her based on her conclusory testimony that “[n]o one . . . explained [it] to me.””

Often, an appellate decision is phrased in mild, soothing language, masking the trench warfare taking place beneath the surface.  Polanco v Greenstein & Milbauer, LLP  2017 NY Slip Op 03707  Decided on May 9, 2017  Appellate Division, First Department is a prime example.  Note the level upon which defendants treated plaintiff’s expert.

Beyond the way the attorneys handled their roles in this legal malpractice case, note the lack of care these PI attorneys took to their client.  It seems that this was just another car case, and garnered very little thought or attention. It seems she had a herniated disc, but settled the case for only $ 20,000.

“On a prior appeal, this Court reversed the grant of defendant’s motion to dismiss, finding that the allegation “that defendant was negligent in urging her to settle the underlying personal injury action and in advising her that an MRI was not necessary and that its results would not lead to a more favorable outcome of her case,” supported a cause of action for legal malpractice (96 AD3d 438, 439 [1st Dept 2012]).

Defendant law firm failed to meet its prima facie burden on the instant motion for summary judgment (see Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010]). The firm’s legal expert did not address the stated basis for plaintiff’s legal malpractice claim, ignored her testimony as to the nature of pre-settlement discussions with her attorney, and misstated that attorney’s testimony. The firm’s radiologist’s opinion on causation, attributing plaintiff’s injuries to degenerative changes, was equivocal, inter alia, conceding that causation as to a herniation was “uncertain” and that certain changes seen on an MRI, taken over one year after the accident, could have been formed in a matter of “months.”

Even if the firm had met its initial burden on the motion, denial would be warranted based upon the existence of triable issues of fact raised by plaintiff. That plaintiff’s expert may have committed improper acts or malpractice bears on his credibility and not the admissibility of his testimony (see Williams v Halpern, 25 AD3d 467, 468 [1st Dept 2006]) and plaintiff’s surgeon’s attribution of her injuries to a different, plausible cause, creates a triable issue of fact on causation (see Linton v Nawaz, 62 AD3d 434, 439-440 [2009], affd 14 NY3d 821 [2010]; Norfleet v Deme Enter., Inc., 58 AD3d 499, 500 [1st Dept 2009]).

 

Estate cases sometimes run into the dead man’s statute, and even if not, there are unique difficulties in providing proofs of intent, which are sometimes very, very important.  In Steffan v Wilensky  
2017 NY Slip Op 03602  Decided on May 4, 2017  Appellate Division, First Department plaintiff can no longer prove that the bank account was a “convenience” and not a “joint” account.  Neither, says the Appellate Division, could the attorneys.

“In support of his legal malpractice claim, plaintiff failed to establish prima facie that his predecessor executor would have prevailed in a Surrogate’s Court proceeding against a bank but for defendant’s negligence in not bringing such a proceeding sooner (see LaRusso v Katz, 30 AD3d 240, 243 [1st Dept 2006]).

Banking Law § 675(b) states that the making of a deposit in the name of a depositor (in the instant action, the decedent, Anne McLaughlin Doris) and another person (Bridie McKiernan) “shall . . . be prima facie evidence . . . of the intention of both depositors . . . to create a joint tenancy and to vest title to such deposit . . . in such survivor.” As the evidence submitted with plaintiff’s opening motion papers (e.g., the transcript of defendant’s deposition) shows, the predecessor executor would have had difficulty adducing “clear and convincing evidence that the account was opened only as a matter of convenience” (Pinasco v Del Pilar Ara, 219 AD2d 540, 540 [1st Dept 1995]). His conversations with Doris, which tended to show that the account was a convenience account, could have been excluded pursuant to the Dead Man’s Statute (CPLR 4519), and he would have had to rely on defendant’s testimony about his telephone conversation with McKiernan, because McKiernan could not be located.

Because plaintiff failed to make a prima facie case, it is unnecessary to decide if defendant raised a triable issue of fact in opposition to plaintiff’s motion.

By his silence in his opposition brief, defendant concedes, as plaintiff argues, that the second, third, and sixth affirmative defenses should be dismissed.”

Courts often take claims of attorney mistakes short of the outright failure to start a case not so seriously.  Many the act, which plaintiff claims is a departure, is said to be a failing but permitted strategic decision.  Not so in Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP
2017 NY Slip Op 03607   Decided on May 4, 2017  Appellate Division, First Department.

Plaintiff was the victim of a hit-and-run and there was an eye-witness.  Here is what happened.

“In this legal malpractice action, plaintiff, the victim of a hit-and-run accident, alleges that defendants, who represented him in the underlying personal injury action, were negligent in failing to prepare and present the testimony of the sole eyewitness; that defendants’ negligence caused a verdict against him; and that he sustained actual damages. Specifically, plaintiff alleges that, prior to the eyewitness’s deposition testimony two years after the accident, defendants failed to refresh the eyewitness’s memory by showing him the police record of a phone call he made shortly after the accident, in which he described the hit-and-run vehicle as a green garbage truck with a flat front. The eyewitness then testified to the contrary at his deposition, stating that the garbage truck he remembered fleeing the scene had a round front, not a flat front. Plaintiff alleges that but for defendants’ negligence in handling the key witness in his case, he would have prevailed, as the driver operated a green garbage truck with a flat front, and the driver had already admitted to a route that would have placed him at the scene on the day and time of the accident. These allegations are sufficient to survive a CPLR 3211(a)(1) and (7) motion to dismiss, as nothing in the record conclusively establishes a defense as a matter of law (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]) and plaintiff has adequately pleaded a claim for legal malpractice (see Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).”

In legal malpractice cases it is presumed, generally conclusively, that an attorney is a fiduciary of the client.  That principle probably derives from the education and licensing of the attorney.  It can be true in many other relationships, as Milonakis v Haralampopoulos  2017 NY Slip Op   30863(U)  April 26, 2017  Supreme Court, New York County  Docket Number: 653928/14
Judge: Barry Ostrager shows us.

“Presently before the Court is a post-note of issue motion by defendants Lambrini Haralampopoulos (“Lambrini”), J.P. Morgan Securities LLC, and JP Morgan Chase Bank, N.A (collectively, “defendants”) for an order pursuant to CPLR § 3212, granting them summary judgment dis~issing all remaining claims against all defendants. Plaintiff Ioannis Milonakis (“Milonakis”) asserted ten causes of action in his Verified Complaint, most of which were dismissed on the record on January 7, 2016 in connection with the defendants’ pre-answer motion to dismiss (motion sequence. 001 ). The third cause of action sounding in breach of fiduciary duty survived, pending further development of the record through discovery, and is the sole focus of this summary judgment motion. The motion is denied for the following reasons. 1 Plaintiff started banking at a particular Chase Bank branch in Astoria, Queens in 2002 (see Milonakis Deposition dated June 1, 2016 at 33:15-20, 42:7-14)2. Defendant ~ambrini, a Chase employee at this particular branch, performed various banking services for plaintiff, such as cashing rent checks from Milonakis’s rental property (id.), and, being a native Greek speaker like plaintiff, Lambrini occasionally translated certain conversations with other bank representatives for plaintiff during the course of their 10-year business relationship at the branch (see Milonakis Dep. 36: 19-25, 40:3-4, 34, 45- 47). In 2002, shortly after plaintiff retired from his union job, Larribrini introduced plaintiff to a colleague at Chase to discuss the purchase of an annuity with plaintiff’s retirement funds of roughly $500,000 (Milonakis Dep. 35:15-36-21). Lambrini translated during that conversation (id.). Plaintiff purchased an annuity (“Annuity”) issued by Genworth Financial (“Genworth”) which was marketed by a Chase affiliate (see Weiss Aff., Exh. 39). Lambrini is a licensed insurance representative and holds Series 6 and Series 63 licenses with the ability to transmit insurance forms (Lambrini Dep. 70:24-71 :5). ”

“Plaintiff commenced this action in December 2014 alleging, inter alia, that Lambrini never explained the withdrawal form to him, or the consequences of the withdrawal and surrender of the Annuity, when Lambrini knew that plaintiff did not speak English. Plaintiff further alleged that he had relied on Lambrini’ s “investment advice” when Lambrini told plaintiff in June 2012 that “it was proper to transfer the annuity funds” to a new Chase account, allegedly as part of a scheme by Lambrini to earn commissions at the expense of Greek Chase customers in the community (Milonakis Aff. at 3). Plaintiff claims he had a special relationship with Lambrini that rises to the level of a fiduciary duty and that Lambrini breached her fiduciary duty to him. To establish a common law tort for breach of fiduciary duty, plaintiff must prove (1) the existence of a fiduciary relationship; (2) misconduct by the defendants; and (3) damages directly caused by the defendants’ misconduct. Pokoik v Pokoik, 115 AD3d 428, 429 (1st Dept 2014), citing Kurtzman v Bergstol, 40 AD3d 588, 590 (2d Dept 2007). A fiduciary relationship is “grounded in a higher level of trust than normally present in the marketplace between those involved in arm’s length business transactions.” Oddo Asset Management v Barclays Bank.PLC, 19 NY3d 584, 593 (2012), citingEBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 (2005). The Court of Appeals has held that a fiduciary duty exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relationship. Roni LLC v Ar/a, 18 NY3d 846, 848 · (2011). Additionally, a fiduciary relationship may exist where one party reposes confidence in another and reasonably relies on the other’s superior expertise or knowledge. Id, quoting AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 11 NY3d 146, 158 (2008) (“A fiduciary relation exists when confidence is reposed on one side and there is resulting superiority and influence on the other”). Defendants cite cases such as Bennice v Lakeshore Sav. & Loan Assn., 254 AD2d 731 (4th Dept 1998) for the proposition that ordinarily there is no fiduciary relationship between a bank and a depositor. However, as that Court and others recognize, the conduct of the parties can create a “special relationship.” As the record shows, there are material issues of fact as to whether plaintiff and defendants, through Lambrini, had a sufficiently special relationship to support a claim for breach of fiduciary duty, and even assuming that a special relationship existed, there are material issues of fact as to what transpired between the parties in June 2012. Consequently, the motion for summary judgment must be denied.”