Caso v Miranda Sambursky Slone Sklarin, Verveniotis LLP   2016 NY Slip Op 30965(U)
May 26, 2016  Supreme Court, New York County  Docket Number: 159192/2015  Judge: Carol R. Edmead is an example of a well pled complaint which shreds at the CPLR 3211 stage.  Tomorrow, we will examine the underlying claimed departures and how the Court treated these claims.  Suggestion:  in no other area of the law are cases so closely examined at the pre-answer stage.

“Plaintiff Thomas Caso (“plaintiff’) alleges that on June 24; 2007, at approximately 4:45 a.m., he was hit by a truck in Manhattan and the driver of the vehicle left the scene. Within three weeks thereafter, plaintiff hired defendants as his attorneys to prosecute an action against responsible parties. On September 16, 2007, New York Police Department (“NYPD”) Detectives arrested Anibal Santos (“Santos”) as the driver of the hit-and-run accident, and closed its investigation. On September 20, 2007, defendants submitted a claim for benefits on plaintiffs behalf to the Motor Vehicle Accident Indemnification Corporation.

On October 8, 2007 the District Attorneys’ office declined to prosecute Santos.

Yet; defendants filed a complaint against, inter alia, Santos in the Bronx Supreme Court (the “underlying action”). After an eight-day jury trial, at which Santos and his co-defendants claimed that there was insufficient evidence that they were the owner/driver of the offending vehicle, a jury denied any recovery to plaintiff. Thereafter, this action for malpractice ensued, in which plaintiff claims that defendants’ failure to conduct a reasonable and prompt investigation of the accident by taking various, certain steps to correctly identify the driver, was a substantial contributing cause and substantial factor in plaintiffs non recovery of his damages. In support of dismissal, defendants argue that neither of plaintiffs malpractice claims sufficiently allege what actions or inactions form the basis of the alleged negligence, nor how said negligence caused plaintiffs losses. Plaintiff fails to allege any specific item of investigation that defendants failed to perform in the underlying action; or that defendants to the underlying action were incorrectly named. Plaintiffs inability to identify the “correct” party to the underlying action requires dismissal of the claim that defendants named the incon-ect party. ‘ And, the jury’s verdict does not mean that the incorrect parties were named, or that defendants were negligent in their prosecution of the case. Plaintiff also fails to plead that either of his theories ofliability was the “but for” proximate cause of his damages. Further, the record in the underlying action establishes that defendants fully investigated and prosecuted plaintiffs case, and that defendants undertook each of the investigative efforts that plaintiffs complaint now claims were not done. Plaintiffs claims amount to speculation and conjecture. In opposition, plaintiff argues that the documents submitted by defendant, such as affidavits, including those of persons Jacking personal knowledge, partial transcripts and other materials, do not constitute documentary evidence under CPLR 3211 (a)(l ). The motion is premature, in that full discovery, including documents, materials, and files in defendants’ possession relating to their representation of the plaintiff, is not complete. Further, plaintiffs complaint pleads the essential elements of a legal malpractice claim, which is amply supported by documents demonstrating the negligence which contributed to defendants’ loss of the underlying action. Plaintiff pleads no less than 12 specific failures ·and depaitures, and adds a 13th, the failure to have taken “other steps necessary to investigate properly and diligently Plaintiffs accident…, etc.” Plaintiff also pleaded causation, in that caselaw holds that the proximate test is satisfied where it is more likely so than not that a defendant’s professional negligence has deprived the plaintiff of a “substantial possibility” of a better outcome, or that professional negligence resulted in “some diminution” of plaintiffs chances of a better recovery.

In further opposition, plaintiff submits the affidavit Stephen Coulon, a purported expert in accident investigation, preparation and reconstruction. Coulon opines that defendants failed to identify the underlying defendants early September 2007 through FOIL requests, or in October 2007 when the District Attorney’s records became available after they declined to prosecute. ‘ Defendants then could have commenced the underlying action in November 2007 and availed themselves of additional disclosure devices. Defendants’ investigation, in large part, did not get done until 2009 and 20 I 0, and defendants’ interview of the sole eye witness and inquiries as to which private garbage collection companies operated in the subject area, did not occur until almost two years after the accident. Interviewing and then deposing the sole eyewitness Theodore Arenas (“Arenas”) in May and June 2009 were fatal to plaintiffs trial, as Arenas’s deposition testimony that the truck had a front-hooded engine conflicted with Arenas’s earlier, and more reliable account to NYPD that the truck had a “flat front cab”; the account of a fronthooded engine provided the prevailing defense to plaintiffs trial. Defendants failed to post flyers in the subject area seeking eyewitnesses or identify other garbage collectors with the similar territory until 2010, and there is no record of defendants authorizing their independent investigators to perform additional investigation. Also, defendants failed to conduct surveillance of the accident over the following consecutive 10 Sunday mornings to either identify additional potential hit-and-run suspects or to rule out any defense that different company committed the accident. ”

“Here, plaintiff alleged that defendants breached its duty to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in that defendants “should have been aware of,” the NYPD and DA’s investigations and ultimate · decision to decline to prosecute Santos through October 8, 2007 (Complaint ¶ 15). ”

“Accepting the above allegations as true, as this court must, it cannot be said that plaintiff failed to “allege” a cause of action for legal malpractice. “

 

If it were not bad enough when Supreme Court dismissed almost all of the legal malpractice claims, in Sitomer v Goldweber Epstein, LLP  2016 NY Slip Op 04152  Decided on May 31, 2016
Appellate Division, First Department  things got even worse when Plaintiff appealed.  On this round the case was dismissed in its entirety.

The reasoning of the AD was that almost all of the choices were strategic and thus immune to legal malpractice and the balance depended on the matrimonial court’s discretion. “This malpractice action arises from defendants’ representation of plaintiff in a contentious divorce proceeding, and focuses primarily on the matrimonial court’s purported improper valuation of plaintiff’s interests in two marital assets: Blue Star Jets LLC (Blue Star) and International Star Investments Limited (ISI Ltd.). Plaintiff contends that, but for the negligence and malpractice of defendants, the court’s valuation of his interest in Blue Star and ISI Ltd. would have been lower, and that he would have had to pay his ex-wife a lower distributive award.

Plaintiff failed to state a malpractice claim regarding defendants’ failure to present independent expert testimony to rebut the court-appointed expert’s valuation report regarding Blue Star, because the record shows that defendants’ decision not to call such a witness was a strategic and reasonable one (Pouncy v Solotaroff, 100 AD3d 410, 410 [1st Dept 2012], lv denied 21 NY2d 857 [2013]). Plaintiff also has not alleged adequately that this decision was the proximate cause of his damages (Bender Burrows & Rosenthal, LLP v Simon, 65 AD3d 499, 499 [1st Dept 2009]).

Plaintiff failed to state a malpractice claim with respect to defendants’ failure to move for a reappraisal or revaluation of Blue Star and ISI Ltd., since plaintiff failed to allege adequately that such a motion would have been successful (id.), particularly given the matrimonial court’s discretion in determining valuation issues (see McSparron v McSparron, 87 NY2d 275, 287 [1995]).

Plaintiff failed to state a cause of action based on defendants’ failure to move to reargue or reconsider the divorce judgment, since the decision of whether to make such a motion is a strategic one and plaintiff has not alleged adequately that such a motion would have been successful (Warshaw Burnstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 536 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013]).”

 

Barouh v Law Offs. of Jason L. Abelove  2015 NY Slip Op 06769 [131 AD3d 988] September 16, 2015    Appellate Division, Second Department  like so much of legal malpractice revolves around the question of proximate cause.  Put another way, “sure a mistake was made” but so what.  What was the demonstrable effect?

“In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Reilly, J.), dated September 3, 2013, as denied those branches of her motion which were for summary judgment on the first and second causes of action, which alleged legal malpractice and breach of fiduciary duty, respectively, and to strike a stated portion of the answer, and granted those branches of the defendants’ cross motion which were pursuant to CPLR 3211 (a) (7) to dismiss the fourth and fifth causes of action, which alleged a violation of Judiciary Law § 487 and fraud, respectively.”

“The plaintiff commenced the instant action against the defendants Jason Abelove and the Law Offices of Jason L. Abelove (hereinafter together the defendants) to recover damages, inter alia, for legal malpractice, based in large part upon Abelove’s failure to disclose his prior representation of BEA to the plaintiff at the time of the Second Shareholder Action. The complaint alleged that as a result of Abelove’s conduct, the plaintiff incurred legal fees and expenses in defending against the BEA defendants’ motion to dismiss. The plaintiff moved for summary judgment on the complaint and to strike a stated portion of the defendants’ answer. The defendants cross-moved, among other things, to dismiss the fourth and fifth causes of action, which alleged a [*2]violation of Judiciary Law § 487 and fraud, respectively. The Supreme Court granted the defendants’ cross motion and denied the plaintiff’s motion. The plaintiff appeals.”

“The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the fourth cause of action, which alleged a violation of Judiciary Law § 487. The complaint failed to adequately allege that the defendants’ allegedly deceitful conduct proximately caused the plaintiff’s damages, which consisted of her legal fees and expenses in defending against the BEA defendants’ motion to dismiss. The crux of the plaintiff’s contention is that the BEA defendants would not have chosen to move for dismissal in the Second Shareholder Action on the ground that the litigation was “poisoned” if Abelove had disclosed to the plaintiff that he previously represented BEA, and she, as a result, did not retain Abelove. The alleged damages, however, stem from the BEA defendants’ independent decision to move for dismissal. Thus, speculation is required to conclude that the BEA defendants would not have moved for dismissal if Abelove disclosed his representation of BEA to the plaintiff. Accordingly, the plaintiff’s allegation that Abelove’s deceitful conduct was the proximate cause of her incurring legal fees and expenses in defending against the BEA defendants’ motion to dismiss is speculative (see Mizuno v Barak, 113 AD3d 825, 827 [2014]; cf. Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 [2012]).”

ITHACA:  This story is right out of the news, and is not yet a court decision.  Seneca County is at war with the Cayuga Indian Nation, and it’s over money, no surprise.  Even less surprising, its over real estate and taxes.  So, the question is whether the county may foreclose on certain property for the failure to pay taxes?  Seneca County lost in US District Court, and then again in the Second Circuit.  The NYLJ reports that Harris Beach, a big legal player in upstate New York was hired to file for certiorari.  It did not do so in time.  Now, the legal malpractice follows.

“Harris Beach previously defended Seneca County, situated between Rochester and Syracuse, in litigation against the Cayuga Indian Nation of New York over whether the county can foreclose on its property for failing to pay real estate taxes. In August 2012, Judge Charles Siragusa held that county foreclosure actions were barred by tribal sovereign immunity, and the U.S. Court of Appeals for the Second Circuit later affirmed (NYLJ, Aug. 4, 2014).

Seneca County claims the firm agreed to seek an appeal to the Supreme Court, and it was required to file a petition for writ of certiorari. But in 2014, Harris Beach informed Seneca County that its attempted appeal was unsuccessful and the Supreme Court denied its motion to file an “out-of-time” petition.

According to that petition, filed as a court exhibit, Harris Beach attorneys said they contacted an experienced appellate printer who ultimately told the firm a wrong due date.”

Question:  How will the County prove that the US Supreme Court would have granted certiorari (a discretionary act) and then would have reversed (an even more discretionary act)?

We’ll keep tuned.

McHenry v Bader, Yakaitis & Nonnenmacher, LLP 2015 NY Slip Op 25429 [50 Misc 3d 977] May 22, 2015 Billings, J. is a prime example of what makes the “but for” portion of legal malpractice so different.  In this case, as in most we have experienced, the departure, or mistake is quite evident.  It was service of legal papers at the wrong address.  Whether plaintiff can show that “but for” this mistake he would have collected $ 350,000 is a completely different story.

“Plaintiff’s complaint against defendants, whose law firm represented him in an underlying action, includes seven claims relating to legal malpractice. Plaintiff has alleged four categories of defendants’ failures in his underlying action. (1) Defendants failed to prosecute it with ordinary skill, competence, and diligence. (2) They failed to plead a negligence claim against the defendant Robert San Miguel. (3) They failed to oppose the motion for summary judgment by the defendant Rebecca Ramirez against whom plaintiff claimed negligent maintenance of the premises causing his injury. (4) They failed to serve San Miguel with notices of the trial and subsequent inquest on damages, resulting in a vacatur of the judgment obtained after San Miguel’s default at trial. Plaintiff’s fifth and sixth claims seek the interest that would have accrued on the judgment defendants’ negligence caused him to lose, as another component of his compensatory damages, and punitive damages over and above his compensatory damages. Plaintiff’s seventh claim alleges that his action is not subject to CPLR article 16.

Defendants move for summary judgment dismissing the complaint. (CPLR 3212 [b].) Plaintiff concedes that his second, third, and fourth claims simply allege specific acts of negligence to amplify his first claim of defendants’ negligence constituting malpractice. Plaintiff also concedes that the decision by the Appellate Division, First Department, that San Miguel’s intentional assault and battery caused the injury plaintiff claimed in the underlying action, Empire Ins. Co. v Miguel (114 AD3d 539, 539 [1st Dept 2014]), precludes him from establishing the defendants’ liability for negligence in that action, an essential element of his second and third claims in this action for legal malpractice. Plaintiff therefore discontinues those claims, but cross-moves for summary judgment on his fourth and fifth claims. (CPLR [*2]3212 [b], [e].)

{**50 Misc 3d at 979}In the underlying action, plaintiff obtained a judgment for $385,308.75 against San Miguel when he was unrepresented and failed to appear for trial. San Miguel subsequently retained an attorney and moved to vacate that judgment. The Appellate Division, Second Department, vacated the judgment, finding that the service of notices of the trial and inquest by plaintiff’s attorneys, defendants in this action, on San Miguel at an incorrect address constituted a reasonable excuse for his default at the trial. (McHenry v Miguel, 54 AD3d 912, 913-914 [2d Dept 2008].) Plaintiff subsequently obtained a jury verdict and judgment for $761,200 in May 2012, but claims this award has been uncollectible due to San Miguel’s depletion of his assets before 2012.”

“Even assuming defendants’ malpractice in serving San Miguel, factual issues nonetheless remain whether that negligence proximately caused plaintiff to suffer damages, especially when all inferences on the issue of causation are drawn in defendants’ favor. (Meralla v Goldenberg, 126 AD3d at 450; Angeles v Aronsky, 109 AD3d 720, 723 [1st Dept 2013].) Plaintiff does not claim that defendants were negligent in failing to collect the August 2006 judgment before it was vacated in September 2008, but insists that the 2006 judgment would have been collectible against San Miguel’s assets at least from when it was vacated until he obtained his 2012 judgment. Plaintiff offers no evidentiary support, however, for his claim that, but for defendants’ alleged negligence in serving San Miguel, the 2006 judgment would not have been vacated. Plaintiff merely assumes blithely that, if defendants served San Miguel notices at his correct address, (1) San Miguel still would have defaulted, but would not have obtained a vacatur of [*4]plaintiff’s judgment, or (2) if San Miguel did not default, plaintiff still would have obtained a favorable verdict at an earlier trial. Therefore, plaintiff’s assumption that he would not have sustained damages from a lost opportunity to collect the 2006 judgment, had defendants served San Miguel at his correct address, on this record, is speculative. (Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman LLP, 110 AD3d 426, 427 [1st Dept 2013]; Learning Annex, L.P. v Blank Rome LLP, 106 AD3d 663, 663-664 [1st Dept 2013]; Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d at 652.)

Plaintiff further fails to establish ascertainable damages. Although he claims the original judgment was collectible in 2006, but the later judgment was uncollectible in 2012, he shows neither fact, nor even any attempt from 2006 to 2008 to collect the original judgment. He relies only on defendant attorneys’ claim in August 2007 in the underlying action that their client “is about to seize [San Miguel]’s assets.” (Exhibit 9, ¶ 6 to aff of Loretta McHenry in support of plaintiff’s cross motion exhibit 2.) Plaintiff’s attorney claimed this intended future act for purposes of opposing San Miguel’s motion to vacate the 2006 judgment, as a reason for the court to deny San Miguel’s motion, but without any evidentiary facts that that judgment was collectible before, during, or after August 2007. (People v {**50 Misc 3d at 983}Brown, 98 NY2d 226, 232 and n 2 [2002]; Naughton v City of New York, 94 AD3d 1, 12 [1st Dept 2012]; Mesler v PODD LLC, 89 AD3d 1533, 1536 [4th Dept 2011]; Rahman v Smith, 40 AD3d 613, 615 [2d Dept 2007]; see Seldon v Crow, 112 AD3d 472, 472 [1st Dept 2013].) In fact, since the judgment was not actually vacated until September 2008, by the Appellate Division, and plaintiff does not show that the judgment ever was stayed before then, 13 months remained as of August 2007 to seize San Miguel’s assets if he owned any.

Plaintiff may not rely on his documents regarding the availability of San Miguel’s assets before the 2012 judgment to make a prima facie showing of actual and ascertainable damages, as he offers this evidence for the first time in reply and then more such evidence long after defendants’ motion and his cross motion were submitted. (Sylla v Brickyard Inc., 104 AD3d 605, 606 [1st Dept 2013];Calcano v Rodriguez, 103 AD3d 490, 491 [1st Dept 2013]; JPMorgan Chase Bank, N.A. v Luxor Capital, LLC, 101 AD3d 575, 576 [1st Dept 2012].) Most of the documents are unauthenticated and inadmissible in any event, neither certified as public records (e.g. CPLR 4520, 4540 [a], [b]; Murray v City of New York, 74 AD3d 550, 550 [1st Dept 2010]; Rivera v GT Acquisition 1 Corp., 72 AD3d 525, 526 [1st Dept 2010]; Coleman v Maclas, 61 AD3d 569, 569 [1st Dept 2009]; People v Smith, 258 AD2d 245, 249-250 [4th Dept 1999]), nor accompanied by an affidavit or certification laying a foundation for the documents as business records or another exception to the rule against hearsay. (People v Ramos, 13 NY3d 914, 915 [2010]; People v Vargas, 99 AD3d 481, 481 [1st Dept 2012]; IRB-Brasil Resseguros S.A. v Portobello Intl. Ltd., 84 AD3d 637, 637-638 [1st Dept 2011]; Babikian v Nikki Midtown, LLC, 60 AD3d 470, 471 [1st Dept 2009].)”

We challenge you to make sense of this follie a deux.  Sanko v Roth  2016 NY Slip Op   30930(U)  May 17, 2016  Supreme Court, New York County  Docket Number: 650025/14
Judge: Gerald Lebovits.  The defendant is either plaintiff’s attorney or not.  He either started cases for plaintiff as his attorney or he did not.  We are genuinely puzzled.  However, note the names of the tennants-in-common

“Plaintiff is a tenant-in common who owns an undivided one:-third interest in the property located at 801 and 803 Greenwich Street in New York County. Defendant is an attorney who represented the other two co-owners in holdover and nonpayment proceedings in Housing Court: Mark Family Realty, LLC, and Selrob Family Limited Partnership. In 2006, defendant commenced a holdover proceeding against a tenant, Maggie Gyllenhaal (hereinafter the Gyllenhaal holdover proceeding). In 2011, defendant commenced a holdover proceeding and a nonpayment proceeding against tenants Annie Churchill Albert and Andrew Churchill Albert (hereinafter the Albert holdover and the Albert nonpayment proceedings, collectively the Albert proceedings). Plaintiff was a named petitioner in these proceedings.

Plaintiff brought this action against defendant alleging that defendant unlawfully commenced the above proceedings on plaintiff’s behalf without his authority by naming plaintiff as a petitioner. Plaintiff asserts ten causes of action: a declaratory judgment (first cause of action); a permanent injunction (second cause of action); aiding and abetting a breach of fiduciary duty (third cause of action); tortious interference with contract (fourth cause of action); abuse of process (fifth cause of action); forgery (sixth cause of action); prima facie tort (seventh cause of action); malicious prosecution (eighth cause of action); violation of the General Business Law Section § 349 (ninth cause of action); and legal malpractice (tenth cause of action).”

“The court grants that portion of the defendant’s motion to dismiss plaintiffs tenth cause of action for legal malpractice. Defendant contends that the tenth cause of action for legal malpractice must be dismissed because no attorney-client relationship exists between plaintiff and defendant. Plaintiff argues that defendant committed legal malpractice because defendant engaged in fraud and collusion. Plaintiffs cause of action for legal malpractice must be dismissed. To state a cause of action for legal malpractice, privity of contract is necessary. (Good Old Days Tavern v Zwirn, 259 AD2d 300, 300 (1st Dept 1999].) An exception exists: Liability may be extended to third parties when fraud, collusion, malicious acts, or other special circurristances are present. Absent privity, a legal malpractice claim must be pleaded with sufficient detail. (CPLR 3016 [b]; Hadar v Pierce, 111 AD3d 439, 440 [1st Dept 2013].) 9 [* 9] 11 of 14 Plaintiff and defendant agree that they never had an attorney-client relationship. Thus, the parties had no privity of contract. Plaintiffs allegations of fraud, however, are not pleaded with sufficient detail to fall within the exception-to-privity rule. Plaintiff fails to plead that defendant made an intentional misrepresentation to plaintiff himself that he was plaintiffs attorney. Nor does plaintiff plead that he relied on defendant’s misrepresentation that induced him to act to his detriment. Plaintiffs allegations of collusion are also insufficient to fall within the ambit of the exception. In conclusory fashion, plaintiff alleges that defendant colluded with the co-owners and defendant’s brother, Eric Roth, to gain advantage for one of the co-owners, Mark Family Realty, LLC, in its lawsuit against plaintiff. “

The name is arresting and the crusade is notable.  The entire case falls, once again, on a technicality.  What happens when a complaint but no summons starts the case off?  Dealy-Doe-Eyes Maddux v Schur  2016 NY Slip Op 03931  Decided on May 19, 2016  Appellate Division, Third Department tells us that:

“For more than a decade, plaintiff has pursued an ongoing course of litigation seeking to hold defendant liable for his alleged legal malpractice. One such action for legal malpractice proceeded to trial and was dismissed by Supreme Court upon defendant’s motion at the close of plaintiff’s proof [FN1]. Thereafter, defendant moved to dismiss this purported legal malpractice action on the ground that, among other things, plaintiff failed to file a summons or summons with notice.

Supreme Court granted defendant’s motion, and plaintiff now appeals.

We affirm. “An action is commenced by filing a summons and complaint or summons with notice in accordance with [CPLR 2102]” (CPLR 304 [a]). The failure to file the papers required to commence an action constitutes a nonwaivable, jurisdictional defect (see Matter of Miller v Waters, 51 AD3d 113, 116 [2008]; Sangiacomo v County of Albany, 302 AD2d 769, 771 [2003]), and such a defect is not subject to correction under CPLR 2001 (see Goldenberg v Westchester County Health Care Corp., 16 NY3d 323, 328 [2011]; Fox v City of Utica, 133 AD3d 1229, 1230 [2015]; DeJoy v Ehmann, 114 AD3d 1288, 1289 [2014], lv denied 23 NY3d 901 [2014]). Here, although plaintiff purchased an index number and filed a complaint, she never filed a summons or summons with notice. Given plaintiff’s failure, the purported action was a nullity, and Supreme Court properly dismissed it for want of subject matter jurisdiction (see O’Brien v Contreras, 126 AD3d 958, 958 [2015];Sangiacomo v County of Albany, 302 AD2d at 772). Moreover, to the extent that the complaint raised claims that were identical to those previously litigated and dismissed after a trial, such claims were barred by principles of res [*2]judicata (see Bluff Point Townhouse Owners Assn., Inc. v Kapsokefalos, 129 AD3d 1267, 1267-1268 [2015], lv denied 26 NY3d 910 [2015]; Wasson v Bond, 97 AD3d 1093, 1094 [2012]). Plaintiff’s remaining contentions have been examined and found to be without merit.”

In a stark example of the “but for” element of legal malpractice, Hoffman v Colleluori
2016 NY Slip Op 03850 Decided on May 18, 2016 Appellate Division, Second Department stands for the principal of “no-harm, no-foul.”  Put another way, if plaintiff could not have won the underlying case, mistakes matter not.

“In 2006, the plaintiff retained the defendants (hereinafter the law firm) to commence an action in the United States District Court for the Eastern District of New York (hereinafter the federal action) against the Nassau County Police Department and certain police officers, inter alia, to recover damages for false imprisonment pursuant to 42 USC § 1983. The complaint did not contain a cause of action to recover damages for malicious prosecution under 42 USC § 1983. The District Court granted the County’s motion to dismiss the complaint, finding, among other things, that the cause of action to recover damages for false imprisonment pursuant to 42 USC § 1983 was time-barred. Subsequently, in 2008, the law firm, on behalf of the plaintiff, commenced an action in the Supreme Court, Nassau County, against the County and the same police officers, asserting, inter alia, a cause of action to recover damages for malicious prosecution pursuant to 42 USC § 1983. The Supreme Court granted the County’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint on the ground that the causes of action were time-barred.

In 2010, the plaintiff commenced this action against the law firm to recover damages for legal malpractice, alleging, among other things, that it had failed to timely assert the cause of action to recover damages for malicious prosecution pursuant to 42 USC § 1983 in the federal action. After joinder of issue and discovery, the law firm moved for summary judgment dismissing the complaint, contending that the plaintiff would not have prevailed on his malicious prosecution claim under 42 USC § 1983 even if it had been timely asserted in the federal action. The Supreme Court granted the motion.”

“Here, the law firm established, prima facie, that even if it had timely asserted a cause of action to recover damages for malicious prosecution pursuant to 42 USC § 1983 in the federal action, the plaintiff would not have been successful on the merits, since the plaintiff’s conviction and a judicial determination of probable cause in the underlying criminal proceeding created a presumption of the existence of probable cause for that criminal proceeding (see Knox v County of Putnam, 2012 WL 4462011, *4, 2012 US Dist LEXIS 139586, *16 [SD NY, No. 10 Civ 1671 (ER)]; Passucci v Home Depot, Inc., 67 AD3d 1470, 1471; Goddard v Daly, 295 AD2d 314, 315; Gullo v Graham, 255 AD2d 975, 976; see also Hamoudeh v Mandel, 62 AD3d 948, 949). In opposition, the plaintiff failed to raise a triable issue of fact.”

Settlements in “open court” are one thing.  They are enforceable just as they are.  Anything else requires a signature.  When the parties settled this matrimonial action using a court reporter in an attorney’s office they did not produce a document that was enforceable.  This might very well be legal malpractice says the Second Department.

Lieberman v Green  2016 NY Slip Op 03717  Decided on May 11, 2016  Appellate Division, Second Department reverses a decision of Supreme Court to dismiss the counterclaim for legal malpractice.

“The defendant retained the plaintiff law firm, Lieberman & LeBovit (hereinafter the law firm), to represent him in an underlying divorce action commenced against him by his now former wife (hereinafter the wife). On March 9, 2012, during the course of the divorce action, the parties agreed to resolve all matters in the action and a stipulation of settlement was read into the record by the plaintiff Mitchell Lieberman, a member of the plaintiff law firm, and transcribed by a court reporter who was present with the parties at the office of the wife’s counsel. According to the transcript, it was the parties’ intention to have the stipulation so-ordered by the Supreme Court at an appearance on March 15, 2012. However, the settlement was not so-ordered by the court on that date, or at any point thereafter. At some point, the wife repudiated the agreement.

In August 2012, the defendant discharged the plaintiffs and retained new counsel. On or about December 3, 2012, the plaintiffs commenced this action to recover unpaid legal fees. The defendant answered and asserted, inter alia, a counterclaim alleging that the plaintiffs committed legal malpractice in that they were negligent in failing to have a written stipulation of settlement signed by the parties and in failing to have the settlement so-ordered by the Supreme Court. The defendant claimed that, as a result, he incurred additional legal fees in having to continue litigating the divorce action. The plaintiffs moved, inter alia, to dismiss that counterclaim pursuant to CPLR 3211(a)(1) and (a)(7). The Supreme Court granted the plaintiffs’ motion. The defendant appeals from so much of the order as granted that branch of the plaintiffs’ motion which was to dismiss the counterclaim to recover damages for legal malpractice.

The Supreme Court improperly granted that branch of the plaintiffs’ motion which was to dismiss the counterclaim to recover damages for legal malpractice. On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is afforded a liberal construction and the court must give the party “the benefit of every possible favorable inference, accept the facts alleged in the [pleading] as true, and determine only whether the facts as alleged fit within any cognizable legal theory” (High Tides, LLC v DeMichele, 88 AD3d 954, 956 [internal quotation marks omitted]; see McDonnell v Bradley, 109 AD3d 592, 593). “CPLR 3211(a)(7) dismissals merely address the adequacy of the [pleading], and do not reach the substantive merits of a [party’s] cause of action” (Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 255). Therefore, whether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss (see Tooma v Grossbarth, 121 AD3d 1093, 1095-1096; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 589; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38).”

“Here, construing the counterclaim liberally, accepting the facts alleged in the counterclaim as true, and according the defendant the benefit of every possible inference, the defendant has stated a cause of action alleging legal malpractice (see Leon v Martinez, 84 NY2d 83, 87-88; Tooma v Grossbarth, 121 AD3d at 1095). The counterclaim alleged that the plaintiffs were negligent in failing to ensure that the settlement was enforceable by having the parties sign a written stipulation of settlement or in having the settlement so-ordered by the Supreme Court, and that this negligence was a proximate cause of the defendant’s damages.”

 

In a startling and ironic turn, a legal malpractice law firm sues an attorney for not doing something wrong.  Wait, that sounds convoluted.  Here is the story.   Baer v Law Offs. of Moran & Gottlieb  2016 NY Slip Op 03799  Decided on May 12, 2016  Appellate Division, Third Department is about how an attorney took on a baby’s medical malpractice case and allowed the statute of limitations to pass for the parents.  He waited 4 years and then passed it on to a med-mal practitioner who started the case which eventually settled for the baby. Problem?  The parents had a derivative claim which was time barred.  When a law firm is sued, they turn around and sue the med-mal practitioner.  The AD says he was correct and ethical not to bring a time-barred suit.

“In December 2004, plaintiffs engaged defendants, a law firm and an individual attorney, to prosecute potential claims arising from the allegedly negligent medical care that their infant son received from March to April 2004. In 2008, defendant Steven Gottlieb, without having filed a complaint in connection with those claims, referred plaintiffs to third-party defendant, David J. Clegg, an attorney with experience in medical malpractice litigation. Clegg was formally retained in August 2008 and filed a complaint for plaintiffs’ son in February 2010. No derivative claims were pleaded on behalf of plaintiffs in the complaint that Clegg prepared. The medical malpractice action eventually settled and, thereafter, plaintiffs commenced the instant legal malpractice action against defendants, alleging that they negligently failed to assert [*2]plaintiffs’ derivative claims before the statute of limitations had expired thereon. Defendants impleaded, among others no longer involved in the action, Clegg, who then made a pre-answer motion to dismiss the third-party complaint, arguing that the statute of limitations on plaintiffs’ derivative claims had expired before he became involved in their son’s case. Supreme Court granted Clegg’s motion, and defendants now appeal.

We affirm. “An attorney sued for malpractice is entitled to commence a third-party claim for contribution [or indemnification] against a subsequent attorney whose negligence has contributed to or aggravated the plaintiff’s damages” (Hansen v Brognano, 137 AD2d 880, 881 [1988] [citation omitted]; see CPLR 1401; Schauer v Joyce, 54 NY2d 1, 5 [1981]; M & R Ginsburg, LLC v Segel, Goldman, Mazzotta & Siegel, P.C., 121 AD3d 1354, 1354-1355 [2014]; Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 66 AD3d 993, 995 [2009]). In that regard, where the limitations period applicable to a potential action is indisputable, an attorney’s “fail[ure] to commence [the] action within [that time frame] . . . f[alls] below the ordinary and reasonable skill and knowledge commonly possessed in the legal profession” and, absent countervailing considerations, constitutes negligence (Bergin v Grace, 39 AD3d 1017, 1018 [2007] [internal quotation marks and citation omitted]; see Wilk v Lewis & Lewis, P.C., 75 AD3d 1063, 1066 [2010]; compare Mignott v Kreidman, 65 AD3d 972, 972 [2009]).

As is relevant here, an action for medical malpractice “must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214-a; see Johanson v Sullivan, 68 AD3d 1303, 1304 [2009]; Cahill v Lat, 39 AD3d 1013, 1014 [2007]). Notwithstanding that time frame, an individual that is “under a disability because of infancy . . . at the time the cause of action accrues” is entitled to a 10-year toll of the limitations period (CPLR 208; see Henry v City of New York, 94 NY2d 275, 279-282 [1999]; Dugan v Troy Pediatrics LLP, 105 AD3d 1188, 1189 [2013]). However, “neither the infancy toll nor the continuous treatment toll applies to derivative claims” (Cahill v Lat, 39 AD3d at 1014; see Devadas v Niksarli, 120 AD3d 1000, 1008 [2014]; Chambers v Mirkinson, 68 AD3d 702, 706 [2009]; Boyle v Fox, 51 AD3d 1243, 1245 [2008], lv denied 11 NY3d 701 [2008]; Whipple v Goldsmith, 202 AD2d 834, 835 [1994]). Finally, on a motion to dismiss a third-party complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), this Court must “accept the facts as alleged in the [third-party] complaint as true, accord [the third-party plaintiffs] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Slezak v Stewart’s Shops Corp., 133 AD3d 1179, 1179 [2015] [internal quotation marks and citation omitted]; see State of N.Y. Workers’ Compensation Bd. v 26-28 Maple Ave., Inc., 80 AD3d 1135, 1137 [2011]).”