Plaintiffs signed a consent agreement with the IRS agreeing to more than  $ 1.5 Million as well as civil fraud and negligence penalties.  That’s a lot of money.  The attorneys who represented them continued on for a period of time and then wrapped up the IRS matter.  Plaintiffs sued, and faced both a statute of limitations defense as well as a strategic choice defense.  They ultimately lost on the strategic choice issue.  Tantleff v Kestenbaum & Mark  2015 NY Slip Op 06720 [131 AD3d 955]
September 2, 2015  Appellate Division, Second Department  discusses the concept that the clients were fully informed and agreed to a difficult strategic choice.

“In any event, even if this action were timely commenced, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that their recommendation that the plaintiffs execute the consent agreement was a reasonable strategic decision (see Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 122 AD3d 686 [2014]; Keeley v Tracy, 301 AD2d 502 [2003]; Hart v Carro, Spanbock, Kaster & Cuiffo, 211 AD2d 617 [1995]). Furthermore, the defendants demonstrated that the recommendation was made after extensive discussions with the plaintiffs, who agreed to the course of action (see Noone v Stieglitz, 59 AD3d 505 [2009]; Holschauer v Fisher, 5 AD3d 553 [2004]; cf. Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282 [1999]). In opposition, the plaintiffs offered no evidence to raise a triable issue of fact as to whether the recommendation “was an unreasonable course of action that constituted legal malpractice” (Keeley v Tracy, 301 AD2d at 503; see Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C., 122 AD3d at 687). The plaintiffs’ claims amounted to nothing more than their present dissatisfaction with the defendants’ strategic choice and thus, did not support a malpractice claim as a matter of law (see Pere v St. Onge, 15 AD3d 465, 466 [2005]; Zarin v Reid & Priest, 184 AD2d 385, 385 [1992]).”

Well known attorney has a longtime relationship with a CPA.  CPA moves from firm to firm and takes the attorney’s tax business with him.  It seems that he then files falsified tax returns, takes the attorney’s money and holds on to it, and does so while using his firms’ computer tax programs.  CPA is indicted and pleads guilty.  Will the firm be responsible?

Targum v Citrin Cooperman & Co., LLP 2016 NY Slip Op 31628(U) August 25, 2016 Supreme Court, New York County Docket Number: 650665/2014 Judge: Saliann Scarpulla does not reach an answer, but posits many questions.

“Defendant Citrin is the accounting firm of which Weber was a partner when his misconduct was discovered. Also named as a defendant is Lorraine Weber, Weber’s wife. After discovering Weber’s misconduct, Citrin and the Targum plaintiffs have each alleged claims against the other, seeking to recover some of the losses each sustained as a result of Weber’s unlawful conduct. Targum and Weber were longstanding friends. In 1989, Weber became employed by the accounting firm Richard Friedman & Associates, C.P.A., P.C. (“Friedman”). In 1990, Weber began providing tax preparation and related services for the Targums, and Weber continued to prepare the Targums’ taxes through 1999, while Weber was at Friedman. In 2000, Weber began working for Financial Appraisal Services, Ltd. (“FAS”). During his years at FAS, Weber continued to do accounting work for the Targums. Weber left FAS, and in August 2004, became a partner at Citrin. At Citrin, Weber was under the direct supervision of Gary Karlitz (“Karlitz”), the leader of Citrin’ s Valuation Services, Forensic Services, and Forensic Accounting Group (“VSFSFA Group”). At Citrin, Weber signed Partnership and Admission Agreements. The Admission Agreement provided that “Weber shall provide professional services only on behalf of [Citrin].” . The Amended and Restated Partnership Agreement, dated as of January 1, 2007, states, “[ t ]he Partnership shall charge reasonably for all professional services rendered by it following generally the policies of the firm as to the fees charged from time to time. However, each Partner may serve professionally, without charge, any individual member of his own immediate family.”

“After that meeting, also on February 28, 2012, Cooperman sent a form letter to Targum and Seeman. In the letter, Targum and Seeman were advised that Citrin had recently learned that Weber, who was no longer affiliated with the firm, had been independently performing tax-related and perhaps other services, all in violation of his Partnership Agreement, without the firm’s knowledge or authorization, and without each letter’s recipient having been a firm client. Citrin advised Targum and Seeman that Weber had informed the firm that he may not have filed certain of their tax returns and may not have made tax payments to the appropriate authorities and “suggest[ ed] that [they] immediately consult with an independent accountant and/or attorney.” Weber pied guilty in February 2013 to an indictment in connection with his unlawful conduct toward the Targums, Bardach, and a receivership that benefitted two children, as well as for his own failure to file taxes. He agreed to pay restitution to those individuals for the sums taken, including $828,128 to Targum. ·Weber admitted that he had stolen the Targums’ wired tax payments, used up much of it, and had transferred some to accounts in his or his wife’s name. Weber also conceded, during his allocution, that he had misrepresented to Targum that the account was a Citrin account, and “created the impression that this [payment] process was both known to and accepted by Citrin Cooperman, and more efficient for the taxpayer.” Weber also admitted some of his misdeeds as to the filing and failure to file, including the falsification of certain tax returns·. ”

“”It is well established that before a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff. In the absence of duty, there is no breach and without a breach there is no liability.” See Pulka v Edelman, 40 NY2d 781, 782 (1976) (internal citations omitted). An accountant owes a duty “to the party contracting for the accountant’s services,” see William Jselin & Co., Inc. v Landau, 71 NY2d 420, 425 (1988),4 but “accountants do not have a duty to the public at large.” Parrot v Coopers & Lybrand, L.L.P., 263 AD2d 316, 319 (1st Dept 2000), aff’d 95 NY2d 479 (2000). Similarly, an accountant-client relationship is a necessary element to the Targum plaintiffs’ fiduciary duty claim. See Tai v Superior Vending, LLC, 20 AD3d 520, 521 (2d Dept 2005). Thus, the Targum plaintiffs’ negligence claims, as well as its claim for breach of fiduciary duty, depend entirely upon a finding that the Targum plaintiffs were Citrin clients. ”

“Accordingly, although I originally determined to convert this motion to a summary judgment motion, I decline at this time to dismiss the Targum plaintiffs’ negligence, breach of fiduciary duty, professional negligence, and negligent supervision claims. Instead, I direct the parties to exchange discovery related to whether or not the Targum plaintiffs were clients of Citrin, and invite the parties to remake their summary judgment motions at the close of discovery. Additionally, I decline to rule on the issue of the scope of the alleged duty and foreseeability until I determine that a duty actually exists Finally, to the extent that the Targum plaintiffs oppose Citrin’s motion on the ground that they have a negligence and accounting malpractice claim against Citrin because, after the plaintiffs learned of Weber’s theft, Citrin failed adequately and promptly to respond to their document requests, I note that the Targum plaintiffs have not asserted that claim in their complaint.”

Weinberg v Sultan   2016 NY Slip Op 05939  Decided on September 1, 2016  Appellate Division, First Department is an example of legal malpractice issues that will arise and continue to arise as the baby boomer generation divests itself of assets gathered during the past 50 years.

Here, the former son-in-law of plaintiff intervened in the sale of a building which was in foreclosure. Could it have been sold for the appraised value or was it doomed?

“Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered on or about February 23, 2015, which, to the extent appealed from as limited by the briefs, upon defendants’ motions to dismiss, dismissed plaintiff’s third, fourth, fifth, and sixth causes of action in the amended complaint; converted the motions to dismiss the first and second causes of action in the amended complaint to motions for summary judgment, with leave to further brief the motions; and granted defendant purchaser’s counsel leave to disburse $66,152 held in escrow for the purchaser, unanimously affirmed, without costs. Order, same court and Justice, entered on or about June 3, 2015, which, upon the remaining defendants’ motions for summary judgment, dismissed the first and second causes of action in the amended complaint, unanimously affirmed, without costs.

The motion court correctly dismissed the third and fourth causes of action. We have some concerns over the manner in which the sale of the building owned by the elderly plaintiff was orchestrated by defendant Kaminsky, her former son-in-law. Kaminsky, an attorney, procured the purchaser and referred plaintiff to the attorneys who represented her in the transaction and assisted her at the closing. It is unclear from the record whether these attorneys ever met with plaintiff before the closing or what role defendant Asher, the self-described “estate attorney,” played; that is, what advice, if any, he provided regarding her estate. It is also unclear how the purchase price for the building was arrived at and whether the representations made to plaintiff regarding the sale proceeds were accurate. Also, Kaminsky collected a $200,000 consulting fee for his work on the transaction, paid by the buyer.

Nonetheless, the amended complaint is barebones. It fails to allege any “material misrepresentation,” which is a required element of a fraud claim (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; Nicosia v Board of Mgrs. of the Weber House Condominium, 77 AD3d 455, 456 [1st Dept 2010]). Further, plaintiff does not allege how defendant purchaser Linda Salamon and her company, defendant 22 West 30th St. Properties, LLC (together Salamon), exerted any undue influence over plaintiff (see Franklin v Winard, 199 AD2d 220, 220 [1st Dept 1993]) or coerced her into a transaction that she alleges made no [*2]economic sense. The amended complaint also failed to plead the fraud and undue influence claims with sufficient particularity, as required by CPLR 3016(b) (see id.). In addition, there is no private right of action against an attorney or law firm for violations of the Code of Professional Responsibility or disciplinary rules (Kantor v Bernstein, 225 AD2d 500, 501 [1st Dept 1996]; see Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 199 [1st Dept 2003]). Plaintiff failed to address her breach of contract claim in her opening appellate brief, so it can be deemed abandoned (see Bridgers v West 82nd St. Owners Corp., 114 AD3d 606, 607 [2014]). In any event, plaintiff provides no indication of how the contract was breached.”

“The motion court correctly granted the motions for summary judgment dismissing the first and second causes of action, for legal malpractice. The moving defendants made a prima facie showing of a lack of proximate cause, which is an essential element of a legal malpractice claim (see Sabalza v Salgado, 85 AD3d 436, 437 [1st Dept 2011]; Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). In opposition, plaintiff failed to raise a triable issue of fact, since she merely speculated that the building she formerly owned, which was in foreclosure at the time of its sale, could have been sold for its appraised value (see Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133 AD3d 428, 428-429 [1st Dept 2015], lv denied __NY3d __, 2016 NY Slip Op 71804 [2016]).”

Caesar’s wife must be above suspicion; legal malpractice practitioners are subject to greater scrutiny.  That is the lot of those who work in the negligence fields.   G. Willi-Food Intl. Ltd. v Herzfeld & Rubin, P.C. 2016 NY Slip Op 31625(U) August 26, 2016 Supreme Court, New York County Docket Number: 161053/2014 Judge: Kelly A. O’Neill Levy is the sad example of a legal malpractice case dismissed for discovery failures.

“Plaintiff commenced this action on or about November 6, 2014. The complaint contains allegations of legal malpractice, breach of contract, and breach of fiduciary duty arising out of defendants’ representation of plaintiff in a consolidated action also litigated in Supreme Court, New York County. On March 25, 2015 the parties appeared at a preliminary conference, where a preliminary conference order was signed (Singh, J.) providing that all interrogatories were to be served on or before April 9, 2015, with responses due by May 11, 2015. ”

“On or about January 25, 2016, plaintiff provided a.second response to defendants’ interrogatories. Defendants allege that the second response was still not sufficient pursuant to the order for more particularization. During the parties’ subsequent status conference on February 24, the court ordered, among other things, that plaintiff to provide a copy of its verification to interrogatory responses on or before March 7, 2016 and the original on or before March 14, 2016, in recognition that the verification would be coming from overseas. Plaintiff still has not provided a verification, and according to defendants, has failed to provide particularized responses. As a result, defendants have brought this motion to strike the pleadings, dismiss the complaint, and award attorney’s fees due to plaintiffs failure ~o comply with numerous court orders pursuant to CPLR § 3126. Plaintiff opposes the motion and asserts that it complied with the orders for particularization and is attempting in good faith to satisfy the court’s order for verification.”

“Plaintiffs failure to comply with three court orders, including a conditional order issued on default, made over the course of approximately one year evidences willful and contumacious behavior. See Bryant v. New York City Hous. Auth., 69 AD3d 488, 489 (1st Dep’t 20 I 0). The court provided plaintiff with numerous opportunities to remedy the deficiencies in its discovery responses and it failed to do so, warranting dismissal of the complaint. See FDIC v. Al/city Ins. Co., 228 AD2d 275 (I st Dep’t 1996), Gal-Ed v. I 53rd St Assoc. LLC, 73 AD3d 438, 438-39 (I st Dep’t 2010), Gale v. Delmonico Hotel Co., 260 AD2d 276, 276 (1st Dep’t 1999). Accordingly, the complaint is dismissed pursuant to CPLR 3126. The court declines to grant the remainder of the relief requested. Accordingly, it is · hereby ORDERED t~at the motion is granted to the extent that the complaint is dismissed. The Clerk is directed to enter judgment accordingly. “

A filing is due today.  By an inadvertant error, it is not filed by midnight.  It is filed before the opening of business the next day.  Any repercussions in Legal Malpractice?  Yep.

The mistakes catalogued in Shenzhen Kehuaxing Indus. Ltd. v Curtis, Mallet-Prevost, Colt & Mosle LLP  2016 NY Slip Op 31593(U)  August 12, 2016  Supreme Court, New York County  Docket Number:   150005/2015  Judge: Eileen Bransten are an attorney’s nightmare.

“In March 2012, the U.S. Department of Commerce (“Commerce”) initiated antidumping (“AD”) and countervailing duty (“CVD”) investigations into SKI and other Chinese manufacturers of stainless steel sinks. See Am. Compl. ~ 21 & Ex. A. SKI and Artisan retained defendant Curtis, Mallet-Prevost, Colt & Mosle LLP (“Curtis” or “the firm”) to represent them during the investigations. (Am. Compl. ¶¶ 11, 24, Ex. D.) Defendants Daniel L. Porter and Ross Bidlingmaier (collectively, with Curtis, “defendants”) are attorneys at the firm, who provided legal services to plaintiffs. Id. ,¶¶ 7, 8; 23; see Affidavit of Daniel Porter (“Porter Aff.”) ,¶ 11.2 At the start of the AD investigation, Commerce set deadlines for various submissions, including a quality and value (“Q& V”) questionnaire, used by Commerce to determine which exporters will be individually investigated. See Porter Aff. Ex. 4 at 18210; see also Am. Compl. Ex. I at 5. The deadline for submission of the Q&V questionnaire was April 11, 2012. See Porter Aff. Ex. 4 at 18210; Am. Compl. Ex. I at 4. The deadline for submitting a separate rate application, which gave exporters an opportunity to obtain a lower antidumping rate than other manufacturers engaged in antidumping practices, was “60 days after publication of this initiation notice,” or May 28 or 29, 2012. See Am. Compl. Ex. G  6. B. Commerce’s Rate Determination Defendants admittedly failed to file the Q& V questionnaire by the April 11 deadline ‘idue to an inadvertent lapse.” (Am. Compl. 27.) Instead, Defendants submitted the Q&V questionnaire before the start of business the following day, April 12, with a request for a one-day extension of the filing deadline, which was denied. See Porter Aff. Ex. 8. Defendants then timely filed plaintiffs’ separate rate application on or about May 25, 2012. (Am. Compl. , 6.) Nevertheless, Commerce rejected plaintiffs’ separate rate application on June 6, 2012, stating that both the Q&V questionnaire and the separate rate application had to be timely filed before it would grant separate rate status, and, because plaintiffs’ Q& V questionnaire was submitted after its deadline, it also would not consider the separate rate application. See Am. Compl. Ex. H. On June 11, 2012, defendants requested that Commerce reconsider its rejection of the separate rate application. See Porter Aff. Ex. 11.”

“Plaintiffs allege that the AD duty rate imposed on them, requiring them to pay upfront cash deposits on their stainless steel sinks shipped to the U.S. in the amount of 76.53% of the customs value of the imports, put them at a severe disadvantage against both U.S. and Chinese competitors, and rendered their stainless steel sinks largely uncompetitive at a profitable price. (Am. Compl. ,-r 33.) When defendants informed plaintiffs that the final determination was issued, plaintiffs responded, in an email dated February 20, 2013, that “[t]his decision is very bad for Artisan. 30% to 50% is what most customer would accept for price increase, not 76% …. We will not be able to survive in China now.” Id. , 34. ”

“Plaintiffs allege that the “prohibitively high” assessed AD rate of 76.53% resulted from defendants’ malpractice, and caused the prices of their sinks to be non-competitive. In addition, plaintiffs assert that distributors and customers to cancel orders and terminate their business with plaintiffs. As a result, plaintiffs seek to recover damages for lost sales, revenues, profits and good will. (Am. Compl.  52, 53.) Plaintiffs also allege that, as a result of the imposition of the 76.53% AD rate and the uncertainty about whether it would be rescinded, they had to move their operations out of China to avoid the high AD rates, and they seek to recover relocation costs. Id. 54-57. ”

“The parties do not dispute that defendants failed to timely file the Q& V questionnaire, which is the primary basis of plaintiffs’ malpractice claim, and which, generally, sufficiently alleges professional negligence. See, e.g., Brodeur v. Hayes, 18 A.D.3d 979, 979 (3d Dep’t 2005) (failure to timely file an answer constitutes negligence); Stanski v. Ezersky, 210 A.D.2d 186, 186 (1st Dep’t 1994) (failure to properly effect service to commence action is negligence); Baker v. Dorfman, 1998 WL 642762, at *4 (S.D.N.Y. 1998) (failure to file claims in a timely manner constituted negligence as a matter of law). Instead, defendants maintain that plaintiffs have failed to plead the requisite elements of proximate cause and damages. ”

“For the purpose of this motion, plaintiffs have sufficiently alleged proximate cause, i.e., but for defendants’ untimely filing of the Q& V questionnaire, uwhat would have been a favorable outcome was an unfavorable outcome.” Zarin v. Reid & Priest, 184 A.D.2d 385, 386 (lst Dep’t 1992). While defendants content that Commerce’s rejection of the separate rate application was the actual, intervening cause of plaintiffs’ alleged damages, such an argument is unavailing on this motion. Defendants do not establish that Commerce’s decision, even if ultimately overtwned, was “[a]n independent, unforeseeable or extraordinary act … far removed from the defendants’ conduct,” so as to 11 sever[] the causal link” between defendants’ untimely filirig and the denial of separate rate status to plaintiffs. Taylor v. Paskoff & Tamber, LLP, 2011WL1480892 at *11 (Sup. Ct. N.Y. Cnty. 2011), aff’d 102 A.D.3d 446 (1st Dep’t 2013) (citing Maheshwari v. City of NY, 2 N.Y.3d 288, 295 (2004)); Arbor Realty Funding, LLC v. Herrick & Feinstein LLP, 103 A.D.3d 576, 576 (1st Dep’t 2013); see also Derdiarian v. Felix Contr. Corp., 51N.Y.2d308, 315 (1980). “[T]he general rule is that an intervening act which is a normal consequence of the situation created by a defendant cannot constitute a superseding cause absolving the defendant from liability.” Lynch v. Bay Ridge Obstetrical & Gynecological Assoc., P.C., 72 N.Y.2d 632, 636-637 (1988). Courts further “fhave cautioned that whether an act is foreseeable and the course of events normal are questions … generally … presenting issues for the fact finder to resolve.” Id. at 636. “

The AD2 is overburdened, and has an ultra busy caseload.  As a result, its decisions are sometimes gnomic, dense and somewhat short on the detail of the underlying case. Silverman v Potruch & Daab, LLC  2016 NY Slip Op 05857  Decided on August 24, 2016  Appellate Division, Second Department is an example.  The law firm was defending Plaintiffs in a case, and things went wrong.  Why remains a mystery.

webcivilsupreme has the decision itself, which is a battle by plaintiff and another over the division of a house for sale.  The AD decision is valuable for its discussion of the standard of summary judgment as well as the elements of legal malpractice.
“To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442;McCoy v Feinman, 99 NY2d 295, 301). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d at 50; Davis v Klein, 88 NY2d 1008, 1009-1010). Thus, in order to prevail on a summary judgment motion, “the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements” (Alizio v Feldman, 82 AD3d 804, 804; see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d at 49;Smith v Kaplan Belsky Ross Bartell, LLP, 126 AD3d 877, 878; Affordable [*2]Community, Inc. v Simon, 95 AD3d 1047, 1048).”

A person comes to the office.  He has had a car accident.  While at the office, the law firm decides that it will not take the case, but gives it to an attorney who might be an “of counsel”, or an employee who is going off on his own, or simply someone hanging around.  In any event new client pays $ 200 for the “of counsel’s” expenses, through the law firm’s credit card program, and signs a retainer agreement.  Somehow, against their wishes, the law firm’s name also appears on the retainer agreement.  Years of aggravation follow, along with a judgment of legal malpractice against the firm.

Tsang v Dong  2016 NY Slip Op 31575(U) August 18, 2016 Supreme Court, New York County  Docket Number: 150970/2016 Judge: Carol R. Edmead is a cautionary tale.  “Plaintiffs, managers of the Firm, allege that in July 2008, defendant contacted the Firm seeking an attorney to represent him in a personal injury matter. The Firm referred defendant to Michael Wiseberg (“Wiseberg”) and introduced defendant to Wiseberg on July 14, 2008 in the Firm’s oflice. Wiseberg and defendant signed a retainer agreement, and collected $200 from defendant for travel and parking expenses. Though the Firm did not practice personal injury law and did not consent to inclusion, Wiseberg added the Firm’s name to the retainer agreement. Wiseberg alone handled defendant’s matter. On two occasions, when defendant called the Firm to reach Wiscberg and was advised that the Firm was not involved in the matter, defendant came to the Firm and harassed and insulted plaintiffs. In particular, defendant stated, in front of the Firm’s clients, that the Firm was irresponsible, caused him to lose his case, and would not let him sec Wisebcrg; he also stated that he would not leave the office until he saw Wiseberg. As a result, the Firm’s clients were disturbed, which resulted in a loss of business of at least $87,000.00, as well as damage to the Firm’s reputation. ”

“Nevertheless, as defendant argues, plaintiffs’ defamation and trespass claims arc barred by resjudicata. Under New York’s transactional approach analyzing a defense based on res judicata, “[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (O’Brien v City of Syracuse, 54 NY2d 353, 357, 445 NYS2d 687, 429 NE2d 1158). And, as relevant herein, “res judicata bars not only those claims that were actually litigated previously, but also those which might have been raised in the former action” (Bernstein v State, 129 AD3d 135, 810 NYS3d 752 [3d Dept 2015] citing Moss v Medical Liab. Mut. Ins. Co., 224 AD2d 762, 763, 636 NYS2d 948 [ 1996] (finding that plaintiff attorney’s present claims against the State of New York, that he had a valid retaining lien on the subject funds, “stem from his previously adjudicated disbarment, for which a final judgment on the merits was rendered. As such claims could have been raised during plaintiff’s disbarment proceeding”)). Here, plaintiffs’ defamation and trespass claims stem from the same scope of legal representation that gave rise to defendant’s previous legal malpractice claim against plaintiffs. As such, plaintiffs could have raised the statements made and actions performed by defendant during the course of that same legal representation as a defense or counterclaim to the legal malpractice suit. Defamation is “the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society” (Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 987 NYS2d 3 7; Foster v Churchill, 87 NY2d 744, 751, 642 NYS2d 583, 665 NE2d 153 [ 1996]). To prove a claim for defamation, a plaintiff must show: (I) a false statement that is (2) published to a third party (3) without privilege or authorization, and that ( 4) causes harm, unless the statement is one of the types of publications actionable regardless of harm (see Dillon v City of New York, 261 AD2d 34, 3 8, 704 NYS2d I [1st Dept 1999]). Defendant’s statements concerning the Firm’s mishandling of his matter also serve as a basis for defendant’s legal malpractice claim against plaintiff, meaning that the statements· falsity could have been litigated during the legal malpractice proceeding (see e.g. Af\·hari v Barer, I Misc3d 57, 769 NYS2d 687 [Sup Ct, App Term 2″d and l l 1h Jud Dist 2003] (former client, pro se, sued attorney to recover sum of money that attorney had allegedly retained as his fee while handing a real estate closing for said client, and attorney counterclaimed for libel based on defamatory letter sent to attorney and attorney’s former counsel); Williams v Varig Brazilian irlines, 169 AD2d 434, 564 NYS2d 328 (1st Dept 1991 )”

“Based on the foregoing, it is hereby ORDERED that the motion by defendant Yonghan Dong for summary judgment dismissing the complaint of the plaintiffs Bernice Tsang and Ivanka Wang as agents of Mertz, Bitelman & Associates Law Office, P.C., plus costs and disbursements. for payment of a money judgment issued against the Firm in favor of defendant in a separate matter. and an award on defendant’s counterclaims is granted to the extent that the complaint is severed and dismissed and to the extent that defendant’s counterclaim for $519.00 is severed and granted; “

Tai v Broche  2016 NY Slip Op 31586(U)  August 18, 2016  Supreme Court, New York County
Docket Number: 652769/2011  Judge: Joan M. Kenney is the story of some high-stakes Manhattan real estate, and the legal malpractice claims that accompany it.  The attorneys say that they warned their client not to close, but close it did.  Lots of money was lost in the transaction, so…

“These consolidated actions arise out of the purchase of the Premises by Property 215, a company owned by Tai, from the Estate. In a related action, Panasia Estate, Inc. (Panasia) obtained damages from Property 51, to which Property 215 assigned its contract, on a claim of tortious interference with Panasia’s prior contract to purchase the Premises from the Estate, and the contract for the sale of the Premises to Property 51 was held to be void ab initio. See Panasia Estate, Inc. v Broche, 122 AD3d 454 (1st Dept 2014). The Pour defendants represented the Tai plaintiffs in their purchase of the Premises. The Berko defendants were the broker in that transaction, and also in a subsequent unrelated transaction, in which Tai and third-party defendant NTD Building, LLC, as owner, sold a commercial condominium unit in the building located at 156-168 Bleeker Street in Manhattan. ”

“In motion sequence no. 003, the Pour defendants’ motion to dismiss Tai’s legal malpractice and breach of fiduciary duty claims is granted, and Tai’s cross motion for summary judgment is denied. Tai’s claims rest on her allegation that Pour failed timely to advise her of the Panasia action and the filing of the tis pendens. While Tai avers in her affidavit that Pour did not inform her of the action, or the tis pendens, until the day after the closing on the Premises, those statements are belied by Tai’s acknowledgment at her deposition that, as Pour states in his affidavit, he had multiple telephone conversations with Tai on the day of the closing, told her about both the Panasia action and the !is pend ens, and secured her agreement to enter into a joint defense to the Panasia action, with Broche. Moreover, Tai is collaterally estopped from denying that she knew about both the Panasia action and the lis pendens, prior to the closing on the Premises. S_ee Tai v Broche 115 AD3d 577, 579 (1st Dept 2014) (“[Tai’s] awareness of the pendency of [the ‘.anasia] action, the filing of a notice of pendency, and Panasia’s rejec~io~ o~ the Estat~’s atten~pt to term1~~te th~ Panasia contract defeats the justifiable reliance element of [plamt1ffs] fraud claim [aga~nst Broche ~ ). !at does not contest Pour’s avennent that he advised Tai not to proceed with the closing until the Panas ta action was resolved, but that she disregarded that advice, directed him to proceed with the c_losing, ~nd several days prior to the closing, retained litigation counsel to bring ~specific performance a~~ton agamst Broche. Finally, Tai’s allegation that Pour’s post-closmg request for an ad?1t10nal $20,000 payment constituted a “kickback,” or a “shakedown” is rejected, because Pour’s post-closmg request was based upon his additional services, including successfully persuading Broche that the Estate pay the entire mortgage recording tax, in the amount of $115,000, and negotiating, with Tai’s participation by telephone, a “Second Amendment” to the contract between Broche and Tai, that provided, among other terms, the extensive indemnification and hold harmless provision that Tai is now using to support her claims against Broche. Indeed, at the time, Tai agreed that Pour should receive additional compensation, but she persuaded Berko to contribute half of that additional payment, out of his fee, while paying nothing herself. “