Plaintiffs, especially those who do not regularly dabble in legal malpractice tend to think that more is better…more causes of action, more theories of the case, etc.  Often these complaints have a nugget of meritorious fact, but they will be cleaned out by the court.  Such is the case in  Martin v Claude Castro & Assoc. PLLC  2016 NY Slip Op 31183(U)  June 24, 2016  Supreme Court, New York County  Docket Number: 161428/2014  Judge: Gerald Lebovits where the complaint lacks the basic “but for” allegation, yet has multiple duplicitive causes of action.  In the end the LM cause of action remains; all else is dismissed.

“Plaintiffs brought this action asserting seven causes of action – legal malpractice, breach of fiduciary duty, breach of written contract, negligence, breach of oral escrow agreement, conversion, and disgorgement of legal fees. Plaintiffs hired defendants to represent them in two summary nonpayment proceedings plaintiffs’ landlord brought against plaintiffs in 2010 in Housing Court (the L&T Matters). Defendants then advised plaintiffs to bring an action in Supreme Court, New York County, against plaintiffs’ landlord (the Supreme Court Action). Plaintiffs now claim that defendants failed adequately to defend plaintiffs’ cases in Housing and Supreme Court. Plaintiffs assert that defendants owed:a fiduciary duty to act in plaintiffs’ best interests and not to expose plaintiffs to any unnecessary risk. Plaintiffs maintain that defendants materially breached the written terms of the retainer agreement. Plaintiffs argue that defendants failed to exercise reasonable care in advising and representing plaintiffs. Plaintiffs state that defendants breached their obligation under the oral escrow agreement created by defendants to hold $93,040.00 paid by plaintiffs in the L&T Matters. Last, plaintiffs assert that defendants failed to perform the work for which they were paid. Defendants now move pre-answer to dismiss under CPLR 3211 (a) (1 ), (5), and (7). Defendants argue that documentary evidence belies plaintiffs’ claims that defendants failed to return all the escrow money. Defendants also assert that cause of actions II, III, IV, and VII should be dismissed as duplicative of the legal-malpractice claim. Defendants further argue that plaintiffs are unable to satisfy the pleading requirements to sustain their legal malpractice and breach of fiduciary duty claims. According to defendants, plaintiffs fail to show that “but for” defendants’ alleged negligence, they would have had a better result in the underlying proceedings and action. Defendants further argue that plaintiffs’ conversion claim is time barred. ”

“Plaintiffs’ landlord brought two nonpayment proceedings in Housing Court, New York County, stemming from unpaid rent for two apartments that plaintiffs had occupied. Plaintiffs retained defendants to defend them in the L&T Matters. At about the same time the L&T Matters were pending, defendants, on plaintiffs’ behalf, commenced an action in Supreme Court, New York County, Index No. 102197/10, against plaintiffs’ landlord asserting, among other things, breach of the warranty of habitability, constructive eviction, and damage to plaintiffs’ property because of an alleged bedbug infestation in plaintiffs’ apartments causing plaintiffs to vacate the premises. Plaintiffs’ alleged damages exceed $100,000. In the current action, plaintiffs allege that defendants failed to assert affirmative defenses – constructive eviction and warranty of habitability – in the L&T Matters resulting in plaintiffs’ landlord’s obtaining two judgments against plaintiffs: (1) $46,520 representing unpaid rent and (2) $37,253.03 representing the landlords’ attorney fees. By way of background, plaintiffs raised in their L&T answer affirmative defenses relating to defects in the rent demand and the petition as well as the defense of lack of personal jurisdiction. After plaintiffs’ landlord moved for summary judgment and plaintiffs cross-moved for summary judgment, Housing Court, the Hon. Brenda Spears, granted the landlord’s motion for summary judgment and dismissed plaintiffs’ affirmative defenses. When plaintiffs’ landlord obtained summary judgment in the L&T Matters, plaintiffs moved in Supreme Court to stay the Housing Court Matters and to consolidate the Housing Court Matters with the Supreme Court Action. Hon. Louis York denied plaintiffs’ motion. Judge York found that different legal issues were before the court in the various cases and therefore that consolidation was inappropriate. According to plaintiffs, defendants’ behavior had negative consequences for plaintiffs in the L&T Matters and in the Supreme Court Action. Plaintiffs allege that defendants failed to inform plaintiffs about the outstanding judgments against plaintiffs in the L&T Matters. Plaintiffs allege that defendants failed to return their phone calls and respond to correspondence. Plaintiffs allege that defendants failed to prosecute the Supreme Court Action. Plaintiffs assert that defendants failed to respond to disclosure in the Supreme Court Action and to obey court orders for disclosure. Plaintiffs also allege that, without their authority and knowledge, defendants discontinued the Supreme Court Action. According to plaintiffs, but for defendants’ behavior, plaintiffs would not have two outstanding judgments against them. Plaintiffs assert that because of the passage of time from 2011 – when the Supreme Court Action was discontinued – until now, plaintiffs no longer have access to witnesses and documents to assert a successful claim against their former landlord. Plaintiffs also contend that defendants paid money to plaintiffs’ landlord from an escrow account without plaintiffs’ knowledge and authority. At this preliminary pre-answer motion to dismiss phase, plaintiffs have asserted a cause of action for legal malpractice. A legal-malpractice claim calls for three elements: negligence of the attorney, that the negligence was the proximate cause of the damages sustained, and proof of actual damages. (Bishop v Maurer, 33 AD3d 497, 498 (1st Dept 2006).) Plaintiffs assert that but for defendants’ conduct, plaintiffs would not have lost the ability to assert warranty of habitability claim in the Supreme Court Action. Defendants argue that this was a trial-strategy choice and that trial strategies are not actionable. (Dweck Law Firm, LLP v Mann, 283 AD2d 292, 292 [1st Dept 2001].) However, it is unclear whether defendants’ failure to assert the affirmative defenses of breach of warranty of habitability and constructive eviction in the L&T Matters was litigation strategy – and therefore unactionable – or whether defendants were negligent in asserting the defenses in the L&T Matters, such that but for defendants’ negligence plaintiffs would not have incurred damages – therefore actionable. 1 This court cannot tell at this phase whether defendants intended to litigate plaintiffs’ landlord unpaid-rent claim separately from plaintiffs’ breach of warranty-of-habitability and constructive-eviction claims and whether plaintiffs understood the ramifications of that litigation decision. Also, this court cannot tell at this phase whether defendants intended to litigate all issues – unpaid rent, constructive eviction, breach of warranty of habitability, and damage to personal property – in the Supreme Court Action. Plaintiffs also assert that defendants have caused damages, namely the two judgments plaintiffs’ landlord obtained in the L&T Matters. Plaintiffs have asserted facts sufficient to allege a cause of action for legal malpractice. “

Only in legal malpractice will a court cite a number of mistakes made by the defendant, yet grant dismissal of a claim on the basis that Plaintiff did just fine, anyway.  In almost every other area of the law, the same showing ends in denial of the motion and the beginning of discovery.

Fletcher v Boies, Schiller & Flexner LLP  2016 NY Slip Op 05041  Decided on June 23, 2016
Appellate Division, First Department is just such an example.

“Plaintiff failed to establish that defendants breached their duty by representing her despite a conflict of interest, in violation of Code of Professional Responsibility DR 5-105 [22 NYCRR 1200.24), the conflicts rule in effect at the time. Unlike current Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.7, DR 5-105 did not require that client consent to a conflict be confirmed in writing. An issue of fact exists whether defendants’ clients consented orally.

In any event, the violation of a disciplinary rule, without more, is insufficient to support a legal malpractice cause of action (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014]). Since plaintiff cannot prove that she suffered damages that were proximately caused by defendants’ alleged misconduct, her cause of action must be dismissed (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]).

Nor can plaintiff prove that defendants proximately caused her any injury with respect to her underlying claim for unauthorized use of her image, since that claim was time-barred and had already been released by the time she engaged defendants (see CPLR 215[3]; Nussenzweig v diCorcia, 9 NY3d 184 [2007]).

As for her other, potentially meritorious, claims, plaintiff settled those, and offers no evidence that, but for defendants’ negligence, the settlement awards would have been higher (see [*2]Fusco v Fauci, 299 AD2d 263 [1st Dept 2002]).

Indeed, plaintiff failed to demonstrate that she suffered any harm at all as a result of defendants’ alleged failings. Although defendants admittedly filed plaintiff’s bankruptcy proof of claim one day late, the claim was accepted, and plaintiff received a substantial mediated settlement. Although she complains of defendants’ alleged failure to join Elite S.A. as a party in one of the underlying actions, plaintiff nonetheless obtained a substantial settlement from that entity. Although plaintiff objects that she was not named as a class representative in one of the underlying actions, the deadline for adding class representatives had already passed by the time she engaged defendants, and nonetheless she received an incentive award for her active participation in the litigation.”

Generally speaking, we find that Courts favor attorneys in legal malpractice settings.  Once in a while the opposite is true, and as always, the Appellate Division reviews these decisions and corrects any mistakes.

Jorge v Hector Atilio Marichal, P.C. 2016 NY Slip Op 04911  Decided on June 22, 2016
Appellate Division, Second Department discusses a case in which Supreme Court granted summary judgment to Plaintiff only to reverse.

“To sustain a cause of action alleging legal malpractice, a plaintiff must prove 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 attorney’s 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, 49-50; Lieberman v Green, _____ AD3d _____, 2016 NY Slip Op 03717 [2d Dept 2016]). “Proximate cause” in the context of legal malpractice means that the plaintiff would have succeeded on the merits of the underlying action or that the plaintiff would not have sustained actual and ascertainable damages but for the attorney’s negligence (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d at 50).

Here, the defendant represented the plaintiff in the plaintiff’s unsuccessful attempt to purchase shares in a cooperative apartment. The plaintiff contends that the defendant committed malpractice by failing to give timely notice of the plaintiff’s intention to cancel the contract, and that the defendant’s failure to give such notice resulted in the loss of the plaintiff’s down payment and other damages.

The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law, as the evidence he submitted in support of his motion demonstrated the existence of triable issues of fact as to whether he had complied with the provisions of the contract under which he would have had the right to cancel the contract (see Humbert v Allen, 89 AD3d 804, 806-807). Accordingly, the plaintiff failed to establish, prima facie, that any negligence by the defendant proximately caused his damages. Thus, the plaintiff’s motion for summary judgment on the complaint should have been denied, without regard to the sufficiency of the defendant’s opposition [*2]papers (see Lauinger v Surf’s Out at Kismet, LLC, 134 AD3d 681, 682).”

A frequent sports simile is “no harm-no foul” which means that even if you are caught doing something wrong, if no one is harmed, it will be overlooked.  The same is true both in legal malpractice and in violations of Judiciary Law § 487.  In legal mal, if there is no “but for” (the mistake did not affect the outcome), then no recovery.  In Judiciary Law § 487. if there are no damages from the deceit, then no case.

In Gumarova v Law Offs. of Paul A. Boronow, P.C.  2015 NY Slip Op 05155 [129 AD3d 911]
June 17, 2015  Appellate Division, Second Department we see one example.  “Judiciary Law § 487 provides that an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is guilty of a misdemeanor, and “forfeits to the party injured treble damages, to be recovered in a civil action.” “Since Judiciary Law § 487 authorizes an award of damages only to ‘the party injured,’ an injury to the plaintiff resulting from the alleged deceitful conduct of the defendant attorney is an essential element of a cause of action based on a violation of that statute” (Rozen v Russ & Russ, P.C., 76 AD3d 965, 968 [2010]).

Here, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging a violation of Judiciary Law § 487. The cause of action alleging a violation of Judiciary Law § 487 fails to sufficiently allege that the plaintiff suffered an injury proximately caused by any alleged deceit or collusion on the part of the defendants, and no such injury can reasonably be inferred from the allegations in the complaint (see Bohn v 176 W. 87th St. Owners Corp., 106 AD3d 598, 600 [2013]; Rozen v Russ & Russ, P.C., 76 AD3d at 968). Chambers, J.P., Hall, Cohen and Miller, JJ., concur.”

In Meredith v Siben & Siben, LLP 2015 NY Slip Op 06120 [130 AD3d 791] July 15, 2015
Appellate Division, Second Department defendants waited until late in the case to move to dismiss on the statute of limitations.  Why?  Perhaps some evidence had to be obtained, or perhaps it was an oversight.  Result?  The statute of limitations may be asserted late in the game.

“Initially, contrary to the plaintiff’s contention, the defendant did not waive its statute of limitations defense, asserted in its answer, by failing to make a pre-answer motion to dismiss (see Rich v Lefkovits, 56 NY2d 276 [1982]). Rather, a statute of limitations defense may be asserted after joinder of issue in a motion for summary judgment pursuant to CPLR 3212 (see Rich v Lefkovits, 56 NY2d at 282). Although the defendant’s motion was made pursuant to CPLR 3211 (a) (5), the parties clearly charted a summary judgment course by submitting extensive documentary evidence and factual affidavits laying bare their proof (see One Monroe, LLC v City of New York, 89 AD3d 812, 813 [2011]; Tendler v Bais Knesses of New Hempstead, Inc., 52 AD3d 500, 502 [2008]; Harris v Hallberg, 36 AD3d 857, 858-859 [2007]; O’Dette v Guzzardi, 204 AD2d 291, 292 [1994]; see also Schultz v Estate of Sloan, 20 AD3d 520 [2005]; Kavoukian v Kaletta, 294 AD2d 646, 646-647 [2002]). Thus, the defendant’s motion is properly treated as a motion for summary judgment dismissing the complaint as time-barred.

Further, the Supreme Court properly concluded that the plaintiff’s legal malpractice cause of action is time-barred. The defendant met its prima facie burden of demonstrating that the action was commenced more than three years after the alleged malpractice occurred (see Farage v Ehrenberg, 124 AD3d 159, 164 [2014]; Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d 591, 592 [2012];Rupolo v Fish, 87 AD3d 684, 685 [2011]). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the statute of limitations was tolled by continuous representation (see Farage v Ehrenberg, 124 AD3d at 165; Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d at 592). In that respect, the evidence demonstrated that after the plaintiff and her husband retained the defendant law firm to represent them in a personal injury action, the defendant law firm retained the law firm of Bauman & Kunkis, P.C. (hereinafter Bauman & Kunkis), to represent the plaintiff and her husband [*2]in that action, and thereafter had no contact with the plaintiff. All of the work on the case, from filing the pleadings to selecting a jury, was performed by Bauman & Kunkis. Before the case could be tried, it was dismissed based on willful default, and Bauman & Kunkis was substituted with a different law firm, which sought to restore the action. Even if the arrangement between the defendant and Bauman & Kunkis could be equated with joint representation, under the circumstances of this case, the defendant’s representation of the plaintiff would have terminated as of December 1, 2006, the date on which Bauman & Kunkis was substituted. Accordingly, the present legal malpractice cause of action, commenced on or about April 9, 2012, was untimely.”

This case illustrates the problem when a client hires a state-wide law firm which engages in TV advertising and then watches the case bounce all over the state.  Cellino & Barnes, P.C. v Law Off. of Christopher J. Cassar, P.C.  2016 NY Slip Op 04823  Decided on June 17, 2016
Appellate Division, Fourth Department is the story of hiring a law firm to handle a car case in Suffolk County only to see another case pop up between law firm 1 and law firm 2 in Buffalo.  There is not any greater distance between counties in New York than between Suffolk and Erie.

“This dispute between law firms over attorney’s fees arises from legal services provided to a client in a personal injury action against an allegedly negligent motorist. Over two years after she had retained plaintiff as counsel and nearly four months after plaintiff had commenced the personal injury action on her behalf in Supreme Court, Suffolk County, the client discharged plaintiff and retained defendants. Following substitution of counsel, plaintiff sent a letter to defendants asserting a charging lien pursuant to Judiciary Law § 475 to secure its interest in attorney’s fees. With defendants as counsel, the client subsequently commenced a legal malpractice action against plaintiff in Suffolk County alleging that plaintiff negligently failed to file a workers’ compensation claim for the client. Thereafter, defendants secured a settlement in the client’s personal injury action. Defendants then sought an order within that action directing that a portion of the settlement funds be held in escrow while the validity of the charging lien was resolved and that the remainder of the settlement funds be released to the client. Two days later, plaintiff commenced the instant action against defendants in Supreme Court, Erie County, i.e., the county in which plaintiff’s principal place of business is located, alleging in the first cause of action that it is entitled to attorney’s fees related to the settlement on a quantum meruit basis, and further alleging in the second and third causes of action that defendants engaged in frivolous and fraudulent conduct in commencing the legal malpractice action. On the same day, but after the instant action was commenced in Erie County, Supreme Court, Suffolk County, issued an order directing plaintiff to show cause why the order sought by defendants should not be granted. In appeal No.1, defendants appeal from an order denying their motion to dismiss the complaint in the instant action pursuant to CPLR 3211 and, in appeal No. 2, defendants appeal from an order denying their motion to transfer venue to Suffolk County.”

“We agree with defendants in appeal No. 1 that the court erred in failing to grant the motion to dismiss with respect to the second and third causes of action for failure to state a cause of action pursuant to CPLR 3211 (a) (7). We therefore modify the order in appeal No. 1 accordingly. To the extent that such is asserted in those causes of action, we note that New York does not recognize a separate cause of action to impose sanctions for frivolous conduct pursuant to 22 NYCRR 130—1.1 (see Young v Crosby, 87 AD3d 1308, 1309). To the extent that the second and third causes of action assert a cause of action for fraud, we conclude that plaintiff failed to allege the essential elements of such a cause of action (see Robertson v Wells, 95 AD3d [*2]862, 864).

Defendants’ contention in appeal No. 1 that the court should have dismissed the first cause of action for failure to state a cause of action is not properly before us because they did not seek dismissal of that cause of action on that ground in their motion (see Ciesinski v Town of Aurora, 202 AD2d 984, 985). We reject defendants’ further contention in appeal No. 1 that the court abused its discretion in denying their motion to dismiss the first cause of action pursuant to CPLR 3211 (a) (4). That provision “vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action” (Whitney v Whitney, 57 NY2d 731, 732). “While complete identity of parties is not a necessity for dismissal under CPLR 3211 (a) (4) . . . , there must at least be a substantial’ identity of parties which generally is present when at least one plaintiff and one defendant is common in each action’ ” (Proietto v Donohue, 189 AD2d 807, 807-808; see Forget v Raymer, 65 AD2d 953, 954). Here, in the underlying personal injury action, the parties are the client and the motorist. The parties in the instant action, however, are plaintiff and defendants. There are thus no common parties to either action nor the requisite substantial identity of parties (see Winters v Dowdall, 63 AD3d 650, 651; Credit-Based Asset Servicing & Securitization v Grimmer, 299 AD2d 887, 887; Blank v Schafrann, 167 AD2d 745, 746; see generally Proietto, 189 AD2d at 808). Further, although we agree with the dissent that defendants were not required to commence a separate action to determine and enforce a charging lien pursuant to Judiciary Law § 475 (see Westfall v County of Erie, 281 AD2d 979, 980), we conclude that it does not follow that the court abused its broad discretion in refusing to dismiss the action properly commenced by plaintiff in Erie County before similar relief was sought within a pending action between different parties in Suffolk County (see generally Whitney, 57 NY2d at 732; Forget, 65 AD2d at 954).”