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. “

The headline is the story in a nutshell.  When a retail business is sold to a new owner, there will always be old sales taxes due to the State, even if only for the last quarter. A procedure exists so that the buyer can immunize itself from being responsible for the unpaid sales taxes of the seller, and if one adheres to the rule, there will be no problems.  Mission Cantina v Pan Asian Bistro Les, Inc.  2016 NY Slip Op 31570(U)  August 16, 2016  Supreme Court, New York County  Docket Number: 653581/2014 Judge: Debra A. James is an example.  One rule is that papers have to be filed prior to the sale of the business.  In this case, a bulk sales filing was made late, with a “backdated” type of filing.  Supreme Court does not seem to have picked up on this.  However, unless one can show malice, fraud or other unusual circumstances, one may not sue the opponent’s attorney.

“As to its complaint against Ahn, Buyer alleges that prior to the closing of the bulk sale transaction, which took place on July 8, 2013, Ahn, the attorney for the Seller, sent an e-mail message to defendant Elke E. Hofmann (“Hofmann”), the Buyer’s attorney, to which was attached a bulk sale notice that stated that the closing date was August 8, 2013. Buyer asserts that such date was a misstatement of the actual closing date, which took place a full month before such date. The complaint further alleges that after the closing, Ahn held $10,000 in her escrow account, which Ahn “finally paid on July 15, 2014” to the New York State Taxation and Finance Department (“Taxation Department”) toward the outstanding balance of sales taxes. Buyer also alleges that on October 3, 2013, eight months before remitting such payment, Ahn falsely advised Buyer’s counsel that the sale taxes for the restaurant that Seller, her client, collected prior to the bulk sale had been paid in full to the Tax Department and that Seller would provide a copy of the release that Seller received from the Taxation Department to Buyer. Such e-mail is attached to and incorporated by reference in the complaint.”

“The complaint does not contain any assertions as to the type of claim interposed against any of the defendants. The third cause of action, which is its only claim against Ahn, sounds in either legal malpractice, negligent representation and/or fraud against Ahn. As for any claims of legal malpractice or negligent representation, “[a]n attorney does not owe a duty of care to his adversary or one with whom he is not in privity” (Aglira v Julien & Schlesinger, PC, 214 AD2d 178, 183 [1st Dept 1995]). As in Aglira where the appellate court reversed the lower court’s denial of defendant law firm’s motion to dismiss the complaint of the underlying medical malpractice plaintiff against such attorneys who represented the medical doctors in that underlying action, here, there is no question that Ahn acted exclusively for her client, Seller, with respect to the bulk sale transaction, and therefore owed a duty of reasonable care only to Seller and owed no duty to Buyer, who was represented by attorney Hofmann. As to any fraud cause of action, as a matter of law, Buyer was not justified in relying upon the legal opinions or conclusions of his or her adversary counsel. Aglira, supra, at 185. Nor can Buyer claim to have consummated the bulk sale in justifiable reliance upon an e-mail message that Ahn sent months after the closing. Moreover, this court concurs with Ahn that the content of the e-mail from Ahn, which merely states that her client, Seller, advised Ahn both that the taxes were paid and that Seller received the release that Seller was trying to locate, disproves any alleged fraud or negligent representation on her part. ”

”

In the accounting malpractice world, defendants often try to distinguish between a “look-see” and a thorough audit.  The audit examines bank records, backup, bills, invoices, tax returns, etc.  Anything else is merely a “compilation” based upon provided records, and the usual disclaimer is that the client was unwilling to pay for the full audit.  Unwilling to pay, they get less.

Town of Kinderhook v Vona  2016 NY Slip Op 01232 [136 AD3d 1202]  February 18, 2016
Appellate Division, Third Department  is an example of this defense failing.

“Pegeen Mulligan-Moore served as plaintiff’s bookkeeper from 2002 until 2010. Douglas McGivney was plaintiff’s Supervisor during that period and, in 2008, learned that plaintiff was experiencing cash flow problems and that Mulligan-Moore had deposited a large personal check into plaintiff’s bank account. He accordingly contacted defendant Leonard W. Vona, a certified public accountant and certified fraud examiner, and asked Vona to look into the situation. No written agreement was reached as to the nature and extent of Vona’s services, but an accountant in his employ reviewed documents provided by plaintiff, and a December 2008 report found no cause for suspicion with regard to the check or any other payments made on plaintiff’s behalf by Mulligan-Moore from January 2007 to August 2008. Vona was compensated for having produced the report and subsequently did consulting work for plaintiff.

Mulligan-Moore was replaced after McGivney left office, after which it became clear that she had falsified the records provided to Vona and had embezzled over $400,000 from [*2]plaintiff from 2007 onward.^[FN1] Plaintiff commenced this action in 2011, asserting that Vona and related entities breached the terms of their contract with plaintiff and were professionally negligent in failing to uncover the malfeasance of Mulligan-Moore. Vona and defendant Fraud Auditing, Inc. (hereinafter collectively referred to as defendants) served an answer and, following discovery, moved for summary judgment dismissing the complaint against them. Supreme Court denied the motion, and this appeal ensued.”

“Vona specifically testified that he was not engaged to perform an audit, as an audit of town finances was not within his practice area and plaintiff did not wish to expend the sums necessary for a thorough investigation. Vona was plainly engaged to do something, however, as he tasked a subordinate with examining records provided by plaintiff to determine if there were overt problems and he billed plaintiff for a “review of [plaintiff’s] checking account.” He ultimately issued a written report reflecting that he had been hired “to examine documents and records of [plaintiff] for the direct purpose of offering opinions regarding those documents,” finding that there was nothing suspicious in those documents, and making various recommendations as to improved procedures. Defendants submitted the affidavit of a certified public accountant who categorized this work as a limited assignment to make findings based on documents provided by plaintiff, and opined that defendants had no duty to obtain the original banking documents in this non-audit because they had no authority to do so. He further opined that the losses incurred by plaintiff stemmed from the absence of internal controls over finances rather than any failings on the part of defendants, although he notably failed to explain how defendants’ ”alleged failure to detect and report the [fraud] . . . was not a proximate cause of the damages allegedly sustained by plaintiff[ ]” (C.P. Ward, Inc. v Deloitte & Touche LLP, 74 AD3d 1828, 1830 [2010]; see Collins v Esserman & Pelter, 256 AD2d 754, 757 [1998]).

Even accepting that the foregoing made out a prima facie case for summary judgment, material questions of fact were raised by plaintiff with the affidavit of accounting professor Eric [*3]Lewis.^[FN2] Lewis made the obvious point that it was impossible for an accountant to perform work for a client without being engaged in some manner, and stated that examining financial records to determine whether funds were being handled improperly was an “audit-level service.” He further opined that, regardless of whether defendants were hired to conduct an audit or a less intensive service, they deviated from professional standards by failing to conduct a thorough investigation or otherwise explaining to plaintiff that the original banking records were essential to performing one. The deceptions of Mulligan-Moore would have been discovered had defendants acted according to professional accounting standards and obtained the original, unaltered banking records, and Lewis opined that defendants’ departure from those standards allowed the embezzlement to continue. Accordingly, Supreme Court properly denied that part of the motion seeking summary judgment on the accounting malpractice claim (see C.P. Ward, Inc. v Deloitte & Touche LLP, 74 AD3d at 1830-1831; Cumis Ins. Socy. v Tooke, 293 AD2d at 798-799).”

Ever since the founding of the Colony, Manhattan real estate has been a widely discussed and studied subject.  The sale of  549 Manhattan Avenue is no exception.  Was there fraud, duress, misconduct?

Jennings-Purnell v Donner  2016 NY Slip Op 31517(U)  August 10, 2016  Supreme Court, New York County  Docket Number: 110344/2006  Judge: Robert D. Kalish discusses what happens when the Appellate Division reverses, and what Plaintiff has against the notary.

“The underlying action arises from the closing for a sale of a property located at 549 Manhattan Avenue (the “Property”) that occurred on September 14, 2004. Plaintiff alleges that Adams is the principal of Adams & Associates, P.C. Plaintiff further alleges that the contract of sale for the Property she signed on September 14, 2004. violated a previous oral agreement between the former Defendant Jennings and herself. The Plaintiff alleges that Adams knew of said oral agreement and that the sale .was the result of fraud/misconduct/false representations by the former Defendants Jennings, Adams and Adams & Associates.”

” Notorial  misconduct can be for wilful, fraudulent or negligent actions of a notary. Further, New York Executive Law § 135 does not require a showing of detrimental reliance. ”Rather, a plaintiff seeking to recover under that section n~ed only show that the notary engaged in notarial misconduct and that such misconduct was a proximate cause of the plaintiffs injury” (Chicago Tit Ins. Co. v LaPierre, 104 AD3d ·720,720721 (NY App Div2d Dept 2013) citing Plemmenou v Aiminos, 12 AD3d 657 (NY App Div 2d Dept 2004); Wells Fargo Bank, N.A. v Sherwood, 82 AD3d 758 (NY App Div 2d Dept 2011); Maloney v Stone, 195 AD2d 1065 (NY App Div 4th Dept 1993 ); Amodei v New York State Chiropractic Ass’n, 160 AD2d 279 (NY App Div 1st Dept 1990) affd 77 NY2d 891(NY1991)).”

“Upon review of the submitted papers and having conducted oral argument of the motion and cross-motion,.the Court finds that the Defendant has established prima facie that he is entitled to summary judgment dismissing the Plaintiff’s action against him for notarial misconduct. Specifically, the Plaintiff has established prima facie that he fully performed his notarial duties at the September 14, 2004 closing by insuring the identities of the individuals signing the closil)g documents, witnessing said signatures and notarizing the signed documents accordingly. The Plaintiff does not allege that Adams in any way instructed Donner in the performance of his duties as notary at the September–14, 2004 . . Further, the Plaintiff does not allege that any of the signatures on’any of the closing documents were forged. ”