The basic question in legal pleading is what must be alleged in a successful case.  In the professional malpractice field, one frequently encounters motions to dismiss on the pleadings (CPLR 3211).  Leading Ins. Group Ins. Co., Ltd. v Friedman LLP 2016 NY Slip Op 30375(U) March 3, 2016 Supreme Court, New York County Docket Number: 651049/15 Judge: Saliann Scarpulla give us a classic rendition of the answer.

”[O]n a motion to dismiss a complaint for failure to state a cause of action, the complaint must be construed in the light most favorable to the plaintiff and all factual allegations must be accepted as true.” Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 (1st Dept 2004). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss.” EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 (2005). “However, factual allegations that do not state a viable cause of action, that consist of bare legal conclusions, or that are inherently incredible or clearly contradicted by documentary evidence are not entitled to such consideration.” Skillgames, LLC v Brody, I AD3d 247, 250 (1st Dept 2003). Where the defendant seeks to dismiss the complaint based upon documentary evidence, “the documentary evidence [must] utterly refute[] plaintiffs factual allegations, conclusively establishing a defense as a matter of law.” Goshen v Mutual Life Ins. Co. of N. Y, 98 . NY2d 314, 326 (2002). ”

“To state a claim for professional negligence, the complaint must allege “that there was a departure from accepted standards of practice and that the departure was a proximate cause of the injury.” D.D. Hamilton Textiles v Estate of Mate, 269 AD2d 214, 215 (I st Dept 2000). ”

“Moreover, this is a pre-answer motion to dismiss. Therefore, LIG need not “pro[ ve] that there was a departure from accepted standards of practice,” but rather, it need only make the necessary allegations. See D.D. Hamilton Textiles, 269 AD2d at 214- 215 (finding, in the context of a motion for summary judgment, that plaintiffs failed to prove defendant accountant’s work fell below applicable standards of care); see also EEC I, Inc., 5 NY3d at 19. Ultimately, LIG alleges that Friedman failed to identify deficiencies with LI G’s loss reserves; whether this failure “was [due to] a departure from professional accounting standards … is a question that requires expert evidence for its resolution.” Berg v Eisner LLP, 94 AD3d 496, 496 (1st Dept 2012) (reversing dismissal). Nothing in the complaint warrants dismissal at this early stage. LIG alleges that, “[b]ased on Friedman’s audit and opinion … LIG found no reason to make adjustments to its estimated loss reserves, its methods and procedures for establishing its loss reserves, or other related business conduct.” In addition, LIG alleges that, because of 8 [* 8] 10 of 31 Friedman’s clean audit, “LIG’s discovery of the understated reserves was belated, [and it] was forced to make emergency adjustments to correct the understated loss reserves,” which caused it to incur additional costs and suffer “significant regulatory action by the NYDFS.” As such, “[t]he complaint sufficiently asserts that ‘but for”‘ Friedman’s failure to identify the understated Joss reserves, LIG would have been able to take corrective actions sooner and would have avoided incurring costs in connections with its emergency measures. Fielding v Kupferman, 65 AD3d 437, 442 (1st Dept 2009) (finding proximate cause sufficiently alleged where plaintiff alleges that “he would not have incurred the tax liability that resulted from the withdrawal of funds from his retirement account,” but for defendants’ incorrect advice).  “

Plaintiff runs a business and leases from building owner.  Building owner gives a right of first refusal to the tenant, and then proceeds to try to sell the building.  Plaintiff may or may not have enough money to purchase, but in any event, it all goes wrong.  Will the Attorney-Broker be successfully sued?

Dahari v Villafana  2016 NY Slip Op 31859(U)  October 3, 2016  Supreme Court, Kings County
Docket Number: 20219/2013  Judge: Sylvia G. Ash tells us that the lawyer remains in the case for now.

“Plaintiff seeks to invalidate the sale of real property located at 1031 Flushing Avenue, Brooklyn, New York (the “Premises”) and to obtain specific performance. Villafana, the owner of the premises, entered into a lease agreement with Plaintiff on May 13,2005. Pursuant to the lease, Plaintiff agreed to occupy a commercial space on the premises. Plaintiff and Villafana renewed the lease in May 15,2010 and included a provision that provided Plaintiff a right of first refusal to purchase the premises. r t , I On January 18,2013, Villafana decided to sell the premises for $1,225,000. In facilitating the purchase, Morgan’s assignor, Guinefort Group, LLC, entered into a Contract of Sale with Villafana. In the Contract of Sale, Villafana represented that Plaintiff’s lease did not have a right of first refusal. Further, Villafana agreed to obtain a Tenant Estoppel Certificate (“Certificate”) from Plaintiff prior to closing. Villafana did not obtain the Certificate from Plaintiff, but instead provided Morgan a Certificate that he signed on Plaintiffs behalf. On August 15,2013, Villafana and Morgan closed on the Contract of Sale. In purchasing the premises, Morgan obtained a loan and line credit from Signature, secured by two mortgages on the premises. Plaintiff brought this action on November 15, 2013, as a means of invalidating the Contract of Sale and to obtain specific performance on its right of first refusal. Morgan and Signature moved for summary judgment. Morgan argued that it did not have notice of Plaintiff’ s right of first refusal because Plaintiff did not record her lease. Next, Morgan argued that Plaintiff was aware of the Contract of Sale in February 2013 and did not attempt to exercise her right of first refusal until November 15,2013. Further, Morgan maintained that Plaintiff was not ready, willing and able to purchase the premises, pointing to Plaintiff’s admission of having a net worth no greater than $133,674. Signature argued that its mortgages were superior to Plaintiff’s right of first refusal because Plaintiff did not record her lease. According to Signature, prior to the August 2013 closing, it conducted a title search and obtained assurances from Morgan that Plaintiff did not have a right of first refusal. Further, Signature argued that Plaintiff “attomed” or waived her right to object to Morgan’s ownership of the premises because Plaintiff payed rent to Morgan after the closing.”

“Turning now to whether the third-party complaint should be dismissed. Under CPLR §1007, a defendant, after serving its answer in the main action, may start a third-party suit against a third-party defendant by serving a third-party summons and complaint, along with all prior pleadings from the main action. An omission with respect to service of all prior pleadings is not a jurisdictional defect, and may be cured under CPLR §2001 (see Jackson v. Long Island Lighting Co., 59 AD2d 523 [2d Dept 1977]). Here, the alleged defects in service by Villafana are not sufficient to warrant dismissal of the third-party complaint. Therefore, Taveras’s motion is denied. Accordingly, Morgan’s and Signature’s motions to reargue are granted. After reconsideration, Morgan’s motion for summary judgment is DENIED and Signature’s motion is GRANTED. Taveras’ motion to dismiss the third-party complaint is DENIED.”

Brion v Moreira  2016 NY Slip Op 31828(U)  September 30, 2016  Supreme Court, New York County  Docket Number: 155815/2014  Judge: David B. Cohen teaches the essentials of contribution and indemnity in a legal malpractice setting.

Plaintiff wanted to have the will of a relative revoked, and an earlier will reinstated.  There was big money at stake, and he hired Defendant law firm to work on the revocation.  This took place while the testator was still alive.  The law firm was unsuccessful in the revocation.  Testator died, and a second law firm was hired to probate the will, or in essence oppose the probate.  That too went badly.  What is the relationship between law firm 1 and law firm 2 when plaintiff sues law firm 1?

“It is well settled law that that an attorney sued for malpractice may assert a claim for contribution against another lawyer who advised the plaintiff on the same matter (Millennium Import, LLC v Reed Smith LLP, 104 AD3d 190 [1st Dept 2013]). In Schauer v Joyce (54 NY2d 1 [1981]), the Court of Appeals explained the malpractice contribution theory stating: Id. at 5.

“CPLR 1401, which codified this court’s decision in Dole v Dow Chem. Co. (30 NY2d 143), provides that “two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.” The section “applies not only to joint tortfeasors, but also to concurrent, successive, independent, alternative, and even intentional tortfeasors” (Siegel, New York Practice,§ 172, p 213; see McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1401, pp 362- 363).”

“The Schauer Court continued and explained that the relevant question under CPLR 1401 is not whether the third-party defendant owed a duty to defendant but whether they each owed a duty to plaintiff and by breaching their respective duties each contributed to the ultimate injuries (id.). “The ‘critical requirement’ for apportionment by contribution under CPLR article 14 is that “the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought” (Raquet v Braun, 90 NY2d 177, 183 [1997]). Thus, for defendants to successfully state a cause of action here against Delaurentis, it must allege that Delaurentis had a duty to plaintiffs and that Delaurentis’ conduct breached such duty. ”

“If defendants are successful in their defense of this matter, the claim for contribution will be academic as defendants will not be liable for malpractice. If plaintiff is successful in this matter and defendants’ are found to be liable for malpractice for its failure to revoke the 2010 will and reinstate the 2004 will, defendants’ first two theories for contribution could not have had a part in causing, exacerbating or augmenting plaintiffs’ injuries as to the $2,100,000 sought. The malpractice injury solely stems from defendants’ alleged (in)actions. There is no allegation here that DeLaurentis augmented the injury be also failing to revoke/reinstate the wills in question. In fact, based upon the facts presented, DeLaurentis’ involvement began with the representation of plaintiff after the death of Miguel Brion and, thus, could not have revoked the will and stopped the injury (see Pellegrino v File, 291 AD2d 60 [1st Dept 2002]). To the extent that defendants’ contend that DeLaurentis’ advice was faulty and had DeLaurentis litigated the probate matter the result would have been different, if that contention is correct then, defendants would not be liable for malpractice. Plaintiffs·’ entire action for damages hinges on that very question and plaintiffs can only be successful if they prove otherwise, i.e., that the 2010 will was not revoked. Therefore, to the extent that defendants’ seek contribution relating to the portion of plaintiffs’ claim for $2, 100,000, that claim is dismissed.2 However, plaintiffs also seek $835,000 in damages for legal fees relating to the probate matter. Defendants have properly stated a cause of action for contribution in that portion. Defendants’ contention that a portion of those legal fees are higher than they should be because of wrongful motion practice, poor advice and failure to seek defendants’ testimony all could have exacerbated the total legal fees and thus, defendants’ have properly stated a cause of action for contribution. DeLaurentis argues that those decisions are legal strategical decision and cannot rise to the level of malpractice. DeLaurentis cites to Rosner v. Paley, 65 NY2d 760 [1985] and Mars v. Dobrish, 66 AD3d 403 in support of this theory. However, Rosner and its progeny stand for the proposition that neither an error in judgment nor in choosing a reasonable course of action constitutes malpractice (id.; Hand v Silberman, 15 AD3d 167 [1st Dept 2005]). Here, defendants are not alleging that the actions of DeLaurentis constitute malpractice. Rather, they allege that to the extent that plaintiffs suffered $835,000.00 of damages in legal fees, the actions of DeLaurentis augmented and exacerbated a portion of that amount and seek contribution for that portion. Because defendants have stated a cause of action for contribution and not malpractice, that portion of the complaint survives.  “

Argue about “duty” and “privity” as much as you wish, once an attorney agrees to undertake a task, they can be held responsible for not performing.  While the “privity” bar is quite high, in Nilazra, Inc. v Karakus, Inc.  2016 NY Slip Op 01302 [136 AD3d 994]  February 24, 2016  Appellate Division, Second Department the attorney voluntarily gave up that protection.

“The plaintiff commenced the instant action to recover damages arising from a sales tax lien that accrued after it purchased a restaurant from the defendant Karakus, Inc. (hereinafter the seller). The defendant/third-party plaintiff, Nellie Levitis, also known as Nelly Levitis (hereinafter Levitis), represented the plaintiff as the purchaser, and the defendant/third-party defendant, Erik Ikhilov, represented the seller. Tax Law § 1141 (c) requires that at least 10 days prior to the transfer of a business, the purchaser must file a notification of sale, transfer, or assignment in bulk (hereinafter the notification) with the New York State Department of Taxation and Finance (hereinafter the Department). The failure to timely file the notification results in the seller’s sales tax liabilities attaching to the purchaser (see Tax Law § 1141 [c]; Randazzo v Nelson, 128 AD3d 935 [2015]; Yiouti Rest. v Sotiriou, 151 AD2d 744, 745 [1989]).

Levitis alleges that Ikhilov had a preexisting relationship with the plaintiff’s principal, Emir Huner, and that he referred Huner to her to perform legal services in relation to the purchase of the restaurant. Levitis further alleges that Ikhilov assured her and her client that he would timely file the notification with the Department, and would hold the amount of the purchase price in escrow to pay any sales tax determined to be owed by the seller. In addition, Levitis alleges that Ikhilov promised to prepare, and in fact did prepare, all of the other documentation, including the contract of sale, riders, and schedules necessary to consummate the sale of the restaurant. Ikhilov did not file the notification with the Department until the closing date. As a result of the late filing, the seller’s tax liabilities in the amount of $83,333.33 attached to the purchaser. The total purchase price of the restaurant was $90,000.

The plaintiff thereafter commenced the main action against, among others, its attorney Levitis alleging, among other things, legal malpractice arising from her failure to verify that the notification had been timely filed by Ikhilov. Levitis commenced a third-party action seeking contribution and indemnification against Ikhilov alleging, among other things, that he had voluntarily assumed a duty to timely file the notification. Ikhilov moved pursuant to CPLR 3211 (a) (7) to dismiss the third-party complaint. The Supreme Court denied the motion.

The Supreme Court properly determined that the third-party complaint, as supplemented by Levitis’s affidavit, sufficiently pleaded a cause of action to recover damages for negligence, as it alleged, inter alia, that Ikhilov voluntarily assumed Levitis’s duty, as the attorney for the purchaser, to timely file the notification with the Department, and breached that duty (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 594 [2005]; see also Schwartz v Greenfield, Stein & Weisinger, 90 Misc 2d 882 [Sup Ct, Queens County 1977]; cf. Council Commerce Corp. v Schwartz, Sachs & Kamhi, 144 AD2d 422, 424 [1988]).”

This was the order of events in 135 Bowery LLC v Sofer  2016 NY Slip Op 31012(U)  June 2, 2016 Supreme Court, New York County  Docket Number: 108020/2011  Judge: O. Peter Sherwood.

“This is one of two cases based on the same set of facts. Steven Seitzman and Judith Scitzman (the Seitzmans) are the sole members of 135 Bowery, LLC ( 135 Bowery). 135 Bowery owned the property located at 135 Bowery, New York, New York (the Property). In 2007, the plaintiffs sold the Property with the assistance of their attorney, Alan Young (Young, now deceased), a partner at Lindenbaum & Young, to fund the Seitzmans’ retirement. Plaintiffs claim that Young diverted the proceeds of the sale, sent some of it to entities he controlled, used other monies to buy real property for his own benefit, and lied to the Seitzmans about the status of their investments. ”

“Steven Seitzman (Stcven) and Judith Seitzman (Judith) are owners of 135 Bowery Street, LLC. In April of 2007, they hired attorney Alan Young to represent them in connection with the sale of the Property. Young counseled them in the attempt of an United States Internal Revenue Code § 1031 exchange (by which taxes would be deferred if the proceeds are invested in other. similar, real estate within a specified time after the sale). Liebman was the exchange trustee. The sale of the building closed on December 28, 2007. At the closing, plaintiffs received net proceeds of $4,513,711. This sum. was deposited in the LY IOLA Account and eventually $4,672.553.64 was transferred to Liebman, the Section 1031 Exchange Trustee (Steven aff at ii 10-12, NYSCEF Doc Nos. 106, 114, 115, J 19).

On January 3, 2008, Young sent Liebman a letter instructing him lo transfer $3,500,000 to LY to be used for down payments on the purchase of two parcels of .land in Sullivan County, New York (NYSCEF Doc. No. 116). Young attached unsigned draft contracts which purportedly provided a basis for the transfer (id.). One contract was for an 83 .19 acre parcel (the “83 Acre Property,” id). The other was for a single family home (the “Mosquera Property,” id). Young was listed as counsel for the seller on both contracts (id.). Patrick Lucas, an associate at LY, appears on the draft contracts as representing the purchaser in both transactions (id.; Robert tr., NYSCEF Doc. No. 112, p.26). 10717 is named in the contract as the seller of the 83 Acre Property, with provision for Petri signing on behalf of that entity. According to the Sullivan County Tax Map and Records System, the 83 Acre Property was owned by a George Bagely (NYSCEF Doc. No. 117). Liebman transferred $3,500,000 to the LY IOLA account that day (NYSCEF Doc No. 118). ”

“Where the complaint against an attorney alleges breach of fiduciary duty, fraud, aiding and abetting fraud, and negligent misrepresentation, and the claims are all predicated on the same allegations and seek identical relief to the legal malpractice claim, the former claims should be dismissed as redundant of the malpractice claim (see Ulico Casualty Co. v Wilson. Elser, Moskowitz. Edelman & Dicker, 56 AD3d 1, 14 (1st Dept 2008) dismissing breach of contract, breach of fiduciary duty, aiding and abetting breach of fiduciary duly and tortious interference with contractual relations claims as duplicative of the malpractice cause of action]; Nevelson v Carro. Spanbock, Kaster & Cuiffo, 290 AD2d 399, 400 [I st Dept 2002][ dismissing claims for breach of contract and breach of fiduciary duty as those claims were “predicated on the same allegations and seek relief identical to that sought in the malpractice cause of action”j Sitar v Sitar, 50 AD3d 667, 670 [2d Dept 2008] affirming dismissal of causes of action alleging fraudulent misrepresentation and negligent misrepresentations “insomuch as those causes of action arise from the same facts as the cause of action alleging legal malpractice and do not allege distinct damages”j; and Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 39 [1st Dept 1998] [breach of contract and fraudulent misrepresentation claims dismissed as redundant of malpractice claim I).

As is discussed below, the plaintif’s motion for summary judgment on the legal malpractice claim must be granted against Young and LY. It must be denied as against Robert and LYPC. “

From this decision, it seems there is little difference, hence much duplication.  Duplication in the legal malpractice world means dismissal of causes of action, which is what happened here.  Justice Edmead bought none of defendant (counterclaimant’s) arguments.  She dismissed the cause of action in Brinen & Assoc. v Krippendorff  2016 NY Slip Op 31803(U)  September 29, 2016
Supreme Court, New York County  Docket Number: 653485/2014.

“This action arises from an agreement between Plaintiff Brinen & Associates, LLC (“Plaintiff), a law firm, and Defendant Kaihan Krippendorff (“Defendant”), who retained Plaintiff for representation in certain transactional matters pursuant to an engagement letter (the “Agreement”). Plaintiff moves pursuant to CPLR 321 l(e) to dismiss Defendant’s sixth counterclaim for breach of fiduciary duty, arguing that the counterclaim duplicates Defendant’s fifth counterclaim for breach of contract (see NYSCEF 129 [“Second Amended Answer”]). ”

“Under CPLR 321 l(a)(7), a cause of action for breach of fiduciary duty whose allegations are merely duplicative of a breach of contract claim cam10t stand (William Kaufinan Org., Ltd v Graham & James LLP, 269 AD2d 171, 173 [1st Dept 2000], accord Weight v Day, 134 AD3d 806, 808-09 [2d Dept 2015] (affirming dismissal of breach of contract cause of action as duplicative of the causes of action alleging accounting malpractice and breach of fiduciary duty); see also Joyce v Thompson Wigdor & Gilly LLP, 2008 WL 2329227, 36 Media L Rep 2030 [SDNY June 3, 2008] (overlapping claims of negligence, breach of contract, breach of fiduciary duty, negligent misrepresentation, or fraudulent misrepresentation premised on the same facts and seeking identical relief as a claim for legal malpractice are generally dismissed as duplicative [collecting cases])). Conversely, both causes of action may co-exist where a claim of breach of fiduciary duty rests on a duty separate and distinct from the breach of contract (Savage Records Group, NV v Jones, 247 AD2d 274, 274-275 [1st Dept], Iv denied 92 NY2d 804 [1998] (when parties have . entered into a contract, unless a party can show a separate duty, “independent of the mere contract obligation,” no fiduciary relationship is established); compare Mandelblatt v Devon Stores, Inc., 132 AD2d 162, 163 [lst Dept 1987] (breach of fiduciary duty for disparaging the employer was found to be separate and distinct from the former employee’s alleged failure to perform his duties under the contract) with William Kaufman Org, 269 AD2d at 173 (“[h]ere, there is no such distinction. Indeed, the cause of action for breach of contract refers … to the unethical conduct described in the … breach of fiduciary duty”); see also MBIA Ins. Corp. v Countrywide Home Loans, Inc., 87 AD3d 287, 293 [1st Dept 2011] (“[u]nlike a misrepresentation of future intent to perform, a misrepresentation of present facts is collateral to the contract … and therefore involves a separate breach of duty”); Brooks v Key Trust Co. Nat. Ass’n,26 AD3d 628, 809 NYS2d 270, 272-73 (3d Dept 2006) (in order to survive a motion to dismiss, a claim for breach of fiduciary duty must “set[ ] forth allegations that, apart from the terms of the contract, the parties created a relationship of higher trust than would arise from , [their contracts] alone” [emphasis added])). ”

“However, though an attorney-client relationship is unique and may create duties independent of the contract, the focus for the purposes of analyzing the claims’ overlap must be on the “essence of the claims” – in other words, the manner in which the duties were alleged to have been violated, and the alleged harm flowing from any violation (Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015]). Claims are duplicative where they arise from the same facts and seek the same damages for each alleged breach (Amcan Holdings, Inc. v Can. Imperial Bank of Commerce, 70 AD3d 423, 426 [1st Dept 2010]; see e.g., Chowaiki, 115 AD3d at 600-01 (dismissing duplicative claim because it was premised upon the same facts and sought identical damages, return of the excessive fees paid); Shaub and Williams, L.L.P. v Augme Tech., Inc., 13 CIV. 1101GBD,2014 WL 625390, at *3 [SDNY Feb. 14, 2014] (“Defendant’s breach of fiduciary duty and breach of implied duty of goog faith a:nd fair dealing counterclaims arise out of the same set of alleged excessive billing practices [and seek the same damages] as Defendant’s breach of contract counterclaim); Morgan, Lewis & Bockius LLP v IBuyDigital. com, Inc., 14 Misc 3d 1224(A) [Sup Ct NY County 2007] (counterclaim alleging that law firm breached its fiduciary duty by failing to abide by engagement letter’s express promise duplicated breach of contract counterclaim premised on the same letter)). Evert the presence of distinct fraud and nonfraud components that seemingly differentiate claims does not preclude dismissal when the claims allege “virtually identical” facts, theories, and damages (NYAHSA Services, Inc. v People Care Inc., 141 AD3d 785 [3d Dept 2016]). There is no appreciable difference between the disputed causes of action here. The breach of contract claim seeks damages pursuant to improper and fraudulent billing, misappropriation of a retainer, “conflict of interest-ridden advice,” and misrepresentation of skills, experience, and ability (Amended Answer ii 63). In nearly identical language, including allegations of fraud, the breach of fiduciary duty counterclaim seeks damages pursuant to “fraudulent conduct by failing to disclose … a conflict of interest,” fraudulent billing, and retainer malfeasance (Amended  Answer ¶ 67). “

Generally speaking, the in pari delicto defense comes up in accounting malpractice cases, where it is alleged that the corporation, which may have benefited from the wrongful conduct not detected by the accountants, is unable to sue the accountants.  Here, in Stokoe v Marcum & Kliegman LLP
2016 NY Slip Op 00587 [135 AD3d 645]  January 28, 2016  Appellate Division, First Department the defense fails.

“In this accounting malpractice action alleging that defendants failed to uncover fraudulent activity by plaintiffs’ insolvents’ investment manager, the motion court correctly declined to apply the doctrine of in pari delicto to bar the action; contrary to defendants’ understanding of the order on appeal, the doctrine is applicable to accounting malpractice claims (see Kirschner v KPMG LLP, 15 NY3d 446 [2010]).

The allegations by these plaintiffs in another action and in a Securities and Exchange Commission complaint, did not constitute documentary evidence conclusively demonstrating that the investment manager, as agent of the funds in liquidation, engaged in wrongful conduct that was not completely adverse to the interests of the funds (Concord Capital Mgt., LLC v Bank of America., N.A., 102 AD3d 406 [1st Dept 2013], lv denied 21 NY3d 851 [2013]). The pleading addressed in the dismissal motion alleged that the malefactors acted in the interest of the wronged entity as well as in their own personal interest, and is distinguishable from defendants’ attempt on the instant pre-answer dismissal motion to refute the allegations here with those in other pleadings. Moreover, the other pleading by the same plaintiffs is not clearly a conclusive admission. We note that New York requires complete adversity in order to fall within the exception to the imputation rule of the in pari delicto doctrine, and that New York law governs here based on the choice of law provision in the parties’ engagement letters.”

American Sec. Ins. Co. v Church of God of St. Albans  2015 NY Slip Op 06699 [131 AD3d 903]  September 2, 2015  Appellate Division, Second Department explains the outer limits of professional responsibility for an architect.  Entering into a contract with the client does not necessarily give rise to general tort liability to others (similar to the privity requirement in legal malpractice), and in this case, the architect is not responsible to the next door neighbor.

“The plaintiff Michael R. Toppin was the owner of a building located at 223-05 Hempstead Avenue in Queens (hereinafter 223-05). The plaintiff Toppin & Toppin, Attorneys at Law, was a commercial tenant operating a law firm in the building at 223-05. The adjacent property, 223-07 Hempstead Avenue, was owned by the defendant Church of God of St. Albans (hereinafter the Church). In 2001, the Church hired the defendant Harold E. Gebhard as design architect for a project involving demolition of the portion of the existing building that belonged to the Church, and the construction of a new, two-story building at that site. Gebhard prepared plans for the excavation and construction of the new church building, which plans also called for excavating part of the adjacent property, at 223-05, and included drawings for the underpinning that was to go beneath the building on the adjacent property. The defendant Mike’s Contracting Building and Development Corp. (hereinafter Mike’s Contracting) was the contractor hired to implement the plans. Excavation of the site was performed in June or July of 2009, during the course of which the plaintiffs’ building at 223-05 sustained damage that rendered it unstable and at risk of collapse, and led to the issuance of a full vacate order by the New York City Department of Buildings, on September 25, 2009, directing the plaintiffs to vacate their property.

The plaintiffs commenced this action to recover damages for injury to property against the Church, Gebhard, and various contractors hired by the Church, alleging violations of New York City Building Code (Administrative Code of City of NY, tit 28, ch 7) § BC 3309.4 and alleging common-law negligence, among other things. The defendants asserted cross claims for indemnification and/or contribution.

Contrary to Gebhard’s contention, section 3309.4, like its predecessor Administrative Code § 27-1031 (b) (1), does impose absolute liability upon the “person who causes” an excavation to be made (492 Kings Realty, LLC v 506 Kings, LLC, 105 AD3d 991, 995 [2013]; see Yenem Corp. v 281 Broadway Holdings, 18 NY3d 481, 489 [2012]; Coronet Props. Co. v L/M Second Ave., 166 AD2d 242, 243 [1990]). However, we agree with Gebhard that the Supreme Court erred in finding him absolutely liable pursuant to section 3309.4. Gebhard made a prima facie showing that he could not be held liable pursuant to that section by establishing that he was neither the person who made the decision to excavate nor the contractor who carried out the physical excavation work (see Coronet Props. Co. v L/M Second Ave., 166 AD2d at 243; Rosenstock v Laue, 140 App Div 467, 470 [1910]; cf. 87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540 [2014]). In opposition to this prima facie showing, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Gebhard also made a prima facie showing of his entitlement to summary judgment dismissing the negligence cause of action. Gebhard’s contractual obligations to the Church do not give rise to tort liability in favor of the plaintiffs, as his contract with the owner did not specifically impose any duties with respect to the excavation phase of the project and expressly stated that Gebhard did not have control over, and was not responsible for, the construction means and methods or the safety precautions taken in connection with the work (see 87 Chambers, LLC v 77 Reade, LLC, 122 AD3d 540, 541 [2014]). In opposition, the plaintiffs failed to raise a triable issue of fact, as Gebhard’s involvement in discussions related to the means and methods to be employed in the excavation, and his general responsibilities to visit the site during construction to monitor compliance with the contract, do not raise an issue of fact as to whether he entirely displaced the owner’s duty to maintain the premises (see id. at 541). The plaintiffs allege no other basis for imposing tort liability on Gebhard. Accordingly, the Supreme Court should have granted Gebhard’s motion for summary judgment dismissing the complaint insofar as asserted against him, and denied that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability insofar as asserted against him.”

It is theoretically possible for plaintiff to win summary judgment in a negligence case; theoretically possible but very very rare.  Benitez v United Homes of N.Y., LLC  2016 NY Slip Op 06153
Decided on September 27, 2016 Appellate Division, First Department is that rare case in which Plaintiff wins partial summary judgment against defendant-attorney on a legal malpractice cause of action.

“The bank made a prima facie showing that the law firm departed from the standard of care in connection with the closing of a residential real estate mortgage loan to plaintiff by, among other things, failing to advise that the subject property lacked a certificate of occupancy, failing to advise of the risk of funding the loan under these circumstances, and failing to confirm that plaintiff contributed 3% of her own funds toward closing, a condition of the loan (see generally AmBase Corp. v Davis, Polk & Wardwell, 8 NY3d 428, 434 [2007]). The motion court properly considered the affidavit of the bank’s legal expert concerning the duty of care an attorney owes to a mortgage-lender client (see Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010], appeal withdrawn 16 NY3d 796 [2011]; Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [1st Dept 2005]). The bank’s closer, who was responsible for ensuring that the closing documents were in order, clearly had “knowledge of the facts” and therefore was qualified to submit an affidavit in support of the bank’s summary judgment motion (CPLR 3212[b]). The closer’s lack of knowledge concerning the underwriting process is irrelevant to the legal malpractice claim.

In opposition, the law firm, which did not rebut the expert’s opinion with an expert opinion of its own, failed to raise a triable issue of fact (see Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134, 141 [1st Dept 2013], lv denied 22 NY3d 855 [2013]).”

ACE Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc.  2016 NY Slip Op 26105 [52 Misc 3d 343]  March 29, 2016  Friedman, J. is an extremely complicated residential mortgage-securities breach of contract case, the details of which are not particularly germane to legal malpractice considerations.  What is interesting, however, is the discussion of CPLR 205(a):

“CPLR 205 (a) provides:

“New action by plaintiff. If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.”

From the decision:

“Reliance Ins. Co. v PolyVision Corp. (9 NY3d 52 [2007]) provides the most comprehensive recent guidance by the Court of Appeals as to the circumstances in which a plaintiff may avail itself of CPLR 205 (a) to avoid the bar of the statute of limitations, where a different but related plaintiff filed the original action within the statute of limitations, and the action was dismissed due to a defect in the original plaintiff’s capacity or standing. In Reliance, the Court of Appeals answered the following certified question from the Second Circuit: “Does New York CPLR § 205(a) allow a corporation to refile an action within six months when a previous, timely-filed action has mistakenly been commenced in the name of a different, related corporate entity, and has been dismissed for naming the wrong plaintiff?” (Id. at 56.)

In holding that CPLR 205 (a) was unavailable to the parent corporation of the original plaintiff, the Court of Appeals endorsed the reasoning of the Federal District Court that

“ '[t]he common thread running through cases applying CPLR 205 in cases where the error in the dismissed action lies only in the “identity” of the plaintiff, is the fact that it is the same person or entity whose rights are sought to be vindicated in both actions.’ . . . ‘[T]he plaintiff in the new lawsuit may appear in a different capacity, such as a duly appointed administrator, but the identity of the individual on whose behalf redress is sought, [must] remain[ ] the same.’ ” (Id. at 57, quoting 390 F Supp 2d 269, 273 [ED NY 2005].)

Summarizing the text of CPLR 205 (a), the Reliance Court “note[d] that the benefit provided by the section is explicitly, and exclusively, bestowed on ‘the plaintiff’ who prosecuted the initial action.” (Id.) The Court also noted that George v Mt. Sinai Hosp. (47 NY2d 170, 179 [1979]) permitted a new action to proceed under CPLR 205 (a) where the new action was filed by an administrator after dismissal of a prior action that had been improperly commenced in a decedent’s name after her death. (Reliance, 9 NY3d at 57.) Distinguishing George, the{**52 Misc 3d at 348}Reliance Court stated: “Outside of this representative context, we have not read ‘the plaintiff’ to include an individual or entity other than the original plaintiff.” (Id.) As the Court of Appeals inGeorge explained and Reliance reaffirmed:

“Usually, of course, the fact that one party commenced an action which is subsequently dismissed, will not serve to justify application of [CPLR 205 (a)] so as to support a later action by a different claimant. Where, however, as here, the claim is the same, and the subsequent claimant is acting as the representative of the named plaintiff in the prior action,” 205 (a) is applicable. (George, 47 NY2d at 179; Reliance, 9 NY3d at 57 [quoting the statement from George that CPLR 205 (a) will not “usually” apply to an action commenced by a different party after dismissal of the first action].)”