Albany:  Each of the four Appellate Division departments has its own case on the issue of whether a legal malpractice case may be brought after a settlement.  The standard is whether the settlement was “effectively compelled by mistakes of counsel.”  In the Third Department that case is Marchell v. Littman, 107 AD3d 1082.  In the Second Department it is Tortura v. Sullivan Papain Block McGrath & Cannavo PC  and in the First Department it is Bernstein v. Oppenheim & Co. 

In this marital case, we see the oft heard complaint that when the matrimonial attorney got to the point where the case had to be tried, he flinched.  “A viable cause of action for legal malpractice exists where a plaintiff demonstrates “that the 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” (Arnold v Devane, 123 AD3d 1202, 1203-1204 [2014] [internal quotation marks and citation omitted]; see Hyman v Schwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930 [2014]). Here, plaintiff alleged that during [*2]the pendency of the divorce action, she informed defendant that her husband had removed her name from their joint checking account, took more than $100,000 from his retirement account, removed marital assets worth approximately $75,000 from the marital residence,[FN1] transferred title of their vehicle to his name only and engaged in certain conduct in violation of a temporary order of protection. Further, according to plaintiff, defendant told her that he planned to have three people testify at the trial, but she learned the day before the scheduled trial date that defendant had not served trial subpoenas on these individuals. Plaintiff further alleged that, because he was not prepared on the day of trial, defendant negotiated a separation agreement with her husband’s counsel without explaining it to her and without her consent. As defendant concedes, plaintiff told defendant in advance of the trial that her priority was to remain in the marital residence, where she lived with her teenaged daughter and her elderly, infirm mother. Nonetheless, on the day of trial defendant told plaintiff that if she did not sign the agreement, the trial court would force her to vacate the marital residence within 10 days. Plaintiff acknowledges that she signed the agreement, then left the courthouse because defendant told her that it was closing for lunch and, when she returned, she was advised that her case had been called and the separation agreement had been placed on the record in her absence.

As the proponent of a motion for summary judgment dismissing the complaint, defendant was required to demonstrate with admissible evidence that plaintiff was unable to establish at least one of the elements of her claim (see Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Sevey v Friedlander, 83 AD3d 1226, 1226 [2011], lv denied 17 NY3d 707 [2011]). To this end, defendant submitted an affidavit wherein he claimed that he issued a subpoena to plaintiff’s husband’s paramour,[FN2] but did not serve two other individuals because it would not “enhance [plaintiff’s] case.”[FN3] He explained that he arrived at the courthouse on the day of plaintiff’s trial to learn that the trial judge had at least three trials scheduled and he planned to leave at 1:00 p.m. Defendant claimed that the judge told him that he had better “get [a settlement] done” before the noon recess or it would be scheduled for a trial at some adjourned date. Defendant explained that when he told the judge that plaintiff wanted to keep the marital residence, the judge informed him that he could order the sale of the property within 10 days. According to defendant, when he relayed this information to plaintiff, she “became highly emotional—hysterical—and bolted out of the . . . room . . . dropped to her knees in front of the . . . husband crying and sobbing and saying if he would agree to her staying there she would concede virtually anything and everything. At that time the initiative was gone, we had lost the staring contest. Hence I proceeded to make the best terms possible.” Review of the separation agreement confirms that the parties agreed to sell the marital residence and split the proceeds, but that plaintiff, her daughter and mother were allowed to remain in the home for approximately 60 days following the agreement’s execution. Otherwise, defendant does not provide any specific evidence with regard to the marital property, and the agreement only provides, in generic terms, [*3]that plaintiff and her husband equitably distributed their marital property.

Here, as defendant has not submitted any expert evidence with regard to whether the services before us provided to plaintiff met the applicable standard of care, “the issue . . . distills to whether defendant met his threshold burden as to the element of either proximate cause or damages” (Arnold v Devane, 123 AD3d at 1204 [2014]). We disagree with defendant’s argument that plaintiff cannot establish either of these elements because she settled the underlying divorce action. Where, as here, the underlying claim is resolved by agreement, this element may be established by evidence that the “settlement . . . was effectively compelled by the mistakes of counsel” (Marchell v Littman, 107 AD3d 1082, 1083 [2013], lv denied 22 NY3d 856 [2013] [internal quotation marks and citations omitted];see Lattimore v Bergman, 224 AD2d 497 [1996]). While defendant insisted that he negotiated the “best terms” possible, he fails to explain whether or to what extent defendant was familiar with the value of the marital property, whether he investigated plaintiff’s complaints that the husband had taken substantial marital assets in violation of Domestic Relations Law § 236, or whether he was prepared to present any evidence at trial with respect to the marital property on his client’s behalf. Rather, defendant cites the trial judge’s schedule and observations with regard to the marital residence and plaintiff’s “hyster[ia]” as the reason why he encouraged his client to settle the action on the terms that he negotiated.

Contrary to defendant’s brief, a directive from the trial court to explore a settlement does not require counsel “as an officer of the court” to forgo his or her client’s right to a trial. Moreover, as defendant acknowledged, an adjournment of the trial date was an available option given the time constraints on the court, and it is troubling that an adjournment was not pursued considering defendant’s own description of plaintiff as emotionally distraught. Without any indication that defendant was fully informed with regard to the marital property, we decline to credit his opinion that the settlement was the best that could be accomplished under the circumstances. When we view the evidence in a light most favorable to plaintiff, as we must (see M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1210 [2011]), we agree with Supreme Court’s finding that the record presents factual questions with regard to whether plaintiff was compelled to settle her divorce action by defendant’s negligence (see Shapiro v Butler, 273 AD2d 657, 660 [2000]). As such, defendant did not meet his burden on the issues of proximate cause and damages, and the burden never shifted to plaintiff to demonstrate a triable issue of fact (see Arnold v Devane, 123 AD3d at 1205; Angeles v Aronsky, 109 AD3d 720, 722-723 [2013]; Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d 403, 406 [2008]).”

Architect malpractice follows many of the same rules, especially in the calculation of statutes of limitation as does legal malpractice.  What happens when an architect (or an attorney) handles a limited task and finishes.  Later there are some problems, and the professional looks at the situation and works on a solution.  How does that change the calculation of the statute of limitations?

In Bronstein v Omega Constr. Group, Inc.  2016 NY Slip Op 02951  Decided on April 20, 2016  Appellate Division, Second Department we see that helping out extended the statute.

“Regardless of whether they are framed as claims sounding in contract or tort, [*2]allegations of professional malpractice, other than medical malpractice, are governed by a three-year statute of limitations (see CPLR 214[6]; Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 542; City School Dist. of Newburgh v Stubbins & Assoc., 85 NY2d 535, 538;Town of Islip v H.T. Schneider Assoc., 73 AD3d 1029, 1029-1030). Accrual of a claim to recover for professional malpractice occurs upon the completion of performance and the resulting termination of the professional relationship (see Vlahakis v Belcom Dev., LLC, 86 AD3d 567, 568; Heritage Hills Socy., Ltd. v Heritage Dev. Group, Inc., 56 AD3d 426, 427; Frank v Masz Group, LLC, 30 AD3d 369, 370). Where dismissal of a malpractice claim is sought pursuant to CPLR 3211(a) on the ground that it is time-barred, the defendant bears the initial burden of establishing, prima facie, that the time within which to sue has expired, whereupon the burden shifts to the plaintiff to raise a question of fact as to whether the limitations period has been tolled or should not apply (see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 AD3d 901, 901-902; Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674, 674; Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978, 979).”In 2006, the plaintiffs entered into a contract with the defendant architect, Michael T. Cetera, inter alia, to prepare and file plans for the construction of an extension to their residence. Cetera filed the plans, which were approved by the New York City Department of Buildings (hereinafter the DOB). Cetera subsequently advised the DOB in a letter dated May 28, 2008, that he was withdrawing responsibility for conducting controlled inspections for the project. Cetera allegedly had no further involvement with the project until the plaintiffs notified him in September 2010 that the DOB had audited the filed plans and had determined that certain errors had been made in the calculation of elevations and floor area. Cetera allegedly rendered additional services, including research and analysis of relevant zoning provisions, the performance of further calculations, and the proposal of possible solutions, in an effort to remedy the problems. There is no indication in the record that these alleged communications and corresponding efforts extended beyond November 2010. The plaintiffs subsequently commenced this action in connection with the project against various individuals and entities who had been involved in its construction. In August 2013, they moved for leave to amend their complaint to add Cetera as a defendant, alleging, inter alia, that he had committed professional negligence in the services he rendered under the parties’ contract. Following the granting of the motion for leave to amend, and the filing and service of the amended complaint, Cetera moved pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against him on the ground that it was time-barred under CPLR 214(6). The Supreme Court denied the motion, finding that the parties’ submissions raised a question of fact regarding whether the applicable limitations period had been tolled pursuant to the doctrine of continuous representation.

Contrary to Cetera’s contentions, in response to his prima facie showing that the action was commenced against him more than three years after his withdrawal, the plaintiffs succeeded in raising a question of fact as to whether the continuous representation doctrine is applicable so as to toll the running of the three-year statute of limitations. Under the circumstances, the evidence of continuing communications between the parties, and of efforts by Cetera to remedy the alleged errors or deficiencies in the filed plans, supported the denial of Cetera’s motion to dismiss the amended complaint insofar as asserted against him (see Regency Club at Walkill, LLC v Appel Design Group, P.A., 112 AD3d 603, 607; Pitta v William Leggio Architects, 259 AD2d 681; Greater Johnstown City School Dist. v Cataldo & Waters, Architects, 159 AD2d 784, 786-787).”

Klein v Rieff  2016 NY Slip Op 00482 [135 AD3d 910]  January 27, 2016  Appellate Division, Second Department is an interesting case in which all the lawyers, whether representing plaintiff or against him, were sued for legal malpractice and Judiciary Law § 487 claims.  The claims against plaintiff’s attorney survived but those against opposing counsel were dismissed.

“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice, fraudulent misrepresentation, and a violation of Judiciary Law § 487. In the complaint, the plaintiff alleged that, in an underlying proceeding in which he was the petitioner, the defendant Samuel E. Rieff knowingly submitted to the court a witness statement on behalf of the respondents in that proceeding containing material misrepresentations for submission to the court, and that the defendants Eugene F. Levy, the defendants Matthew W. Naparty and Mauro Lilling Naparty, LLP (hereinafter together the Naparty defendants), the defendants Mark L. Hankin and Hankin & Mazel, PLLC (hereinafter together the Hankin defendants), and the defendant Stephen N. Preziosi, who, in succession, each represented the respondents, knowingly submitted Rieff’s affirmation and a fraudulent affidavit from their client, and made materially false statements to the court in their own right, causing the plaintiff damages.

The Supreme Court properly granted those branches of the separate motions by Levy, the Naparty defendants, the Hankin defendants, and Preziosi which were pursuant to CPLR 3211 (a) (7) to dismiss the causes of action alleging a violation of Judiciary Law § 487 insofar as asserted against each of them, as the plaintiff failed to allege sufficient facts to establish that these defendants intended to deceive the court (see Shaffer v Gilberg, 125 AD3d 632, 636 [2015]; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 759 [2014]; Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491 [2014]; Curry v Dollard, 52 AD3d 642, 644 [2008]; Michalic v Klat, 128 AD2d 505, 506 [1987]).

Similarly, the Supreme Court properly granted those branches of the separate motions of Levy, the Naparty defendants, the Hankin defendants, and Preziosi which were pursuant to CPLR 3211 (a) (7) to dismiss the causes of action alleging fraudulent misrepresentation insofar as asserted against each of them, as the plaintiff failed to adequately plead that these defendants knowingly made material misstatements to the court (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 176 [2011]). For the same reason, the Supreme Court properly granted those branches of these defendants’ separate motions which were pursuant to CPLR 3211 (a) (7) to dismiss the causes of action alleging legal malpractice insofar as asserted against each of them, as these causes of action were premised on the exception to the rule requiring the existence of an attorney-client relationship in the absence of fraud, collusion, or malicious acts (see Betz v Blatt, 116 AD3d 813, 815 [2014]; cf. Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1111-1112 [2011]).

However, the Supreme Court erred in granting those branches of Rieff’s motion which were for summary judgment dismissing the causes of action alleging legal malpractice, fraudulent misrepresentation, and a violation of Judiciary Law § 487 insofar as asserted against him. Rieff contends that he is entitled to summary judgment because the plaintiff did not suffer any [*2]damages as the result of any alleged fraud that he committed by making knowing, material misstatements for submission to the court. Contrary to Rieff’s contention, he failed to establish, prima facie, that the plaintiff was unable to demonstrate damages proximately caused by his alleged conduct (see Bey v Flushing Hosp. Med. Ctr., 95 AD3d 1152, 1153 [2012]).”

Albany, NY:  The Third Department considered a pro-se appeal, and found against plaintiff. Neroni v Follender 2016 NY Slip Op 01527  Decided on March 3, 2016  Appellate Division, Third Department.  All in all, things turned out poorly for plaintiff.

“In 2007, defendant Jonathan S. Follender (hereinafter Follender) and his law firm, defendant Jonathan S. Follender, P.C. (hereinafter the law firm), commenced a breach of contract action on behalf of clients of the law firm against clients of plaintiff [FN1]. The action culminated in a default judgment against plaintiff’s clients and an award of sanctions for frivolous conduct against plaintiff; both determinations were affirmed by this Court (M & C Bros., Inc. v Torum, 101 AD3d 1329, 1330 [2012], appeal dismissed 21 NY3d 898 [2013]). Plaintiff then commenced this action against Follender, the law firm and the law firm’s clients in the breach of contract action, alleging that Follender and the law firm committed fraud upon the court in that action and a subsequent special proceeding to enforce the judgment, that the clients colluded with Follender and the law firm to commit fraud, deceit and collusion in violation of Judicial Law § 487, and that defendants committed defamation. Defendants moved [*2]to dismiss the complaint and sought sanctions and an order to preclude plaintiff from bringing further litigation against them. In December 2013, after extensive motion practice and correspondence, Supreme Court dismissed plaintiff’s complaint with prejudice, sanctioned plaintiff in the amount of $2,000 for frivolous conduct and awarded injunctive relief to defendants, as well as counsel fees and costs. Plaintiff then moved for recusal and to renew and/or reargue the December 2013 order, and defendants cross-moved for, among other things, a determination of the amount of counsel fees and costs. In April 2014, the court denied plaintiff’s motion and partially granted the cross motion by, among other things, setting the amount of counsel fees and costs awarded in the December 2013 order at $8,470. Plaintiff appeals from both orders.”

“Supreme Court properly dismissed the fifth cause of action, which alleged in conclusory terms that the law firm’s clients acted in collusion with Follender and the law firm to commit fraud, collusion and deceit. As the court correctly determined, the complaint included no specific allegations whatsoever of any fraudulent statements or other wrongdoing on the clients’ part, and Judiciary Law § 487, by its terms, does not apply to non-attorneys. Finally, we agree with the court that the cause of action alleging defamation and defamation per se did not describe the alleged defamatory statements with the requisite specificity (see CPLR 3016 [a]; Martin v Hayes, 105 AD3d 1291, 1293 [2013]), that the claim was time-barred by the one-year statute of limitations as to all but one of the statements that apparently formed the basis of the allegations (see CPLR 215 [3]), and that the remaining statement was made in the course of the prior court proceeding and was therefore protected by an absolute privilege (see Black v Green Harbour Homeowners’ Assn., Inc., 19 AD3d 962, 963 [2005]). Plaintiff’s contention that the court should have granted leave to amend her complaint rather than dismissing it on the merits is unpreserved (see CPLR 5501 [a] [3]).”

 

Mineola, NY:   In an appeal from the decision and order of Supreme Court, Nassau County, the Second Department reminds all that the statute of limitations is an unforgiving obstacle.

Quinn v McCabe, Collins, McGeough & Fowler, LLP  2016 NY Slip Op 03153  Decided on April 27, 2016  Appellate Division, Second Department discusses the statute, continuous representation, tolling, and the requirements of trust and confidence.

“The statute of limitations for a cause of action alleging legal malpractice is three years (see CPLR 214[6];Farage v Ehrenberg, 124 AD3d 159, 163). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court, regardless of when the operative facts are discovered by the plaintiff” (Farage v Ehrenberg, 124 AD3d at 164 [citations omitted]; see McCoy v Feinman, 99 NY2d 295, 301; St. Stephens Baptist Church, Inc. v Salzman, 37 AD3d 589, 590).

Causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies (see Glamm v Allen, 57 NY2d 87, 91-94; Farage v Ehrenberg, 124 AD3d at 164; see also Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735). The continuous representation doctrine tolls the statute of limitations where there are clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038 [internal quotation marks omitted]; see Farage v Ehrenberg, 124 AD3d at 164).

Here, the defendants Picciano & Scahill, P.C., and Sean Schaefer (hereinafter together the Picciano defendants) met their prima facie burden by establishing that the statute of limitations expired on March 28, 2009, three years after a consent to change attorney form was executed by the plaintiff, the Picciano defendants, and new counsel, and that they did not act on behalf of the plaintiff in the subject actions after the consent was signed (see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735). Therefore, the Picciano defendants met their prima facie burden of establishing that the three-year statute of limitations period for commencing an action alleging legal malpractice had expired at the time the plaintiff commenced this action on or about September 11, 2014 (see id. at 735-736; see generally Bullfrog, LLC v Nolan, 102 AD3d at 720).”

It is often and disparagingly said that legal malpractice cases exist solely to get out of obligations to pay attorney fees.  Sometimes that appears to be true.   Popkin v Kopoulos  Decided on April 22, 2016  District Court Of Nassau County, First District  Fairgrieve, J. is the story of an attorney who prepared a retainer agreement for hourly rate work, performed some work, ran into non-payment, moved to be relieved, was relieved and then was awarded a charging lien.  When the attorney went to sue for the relatively small amount of fees, he was met with a counter-claim for legal malpractice.

“”[W]hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties’ reasonable expectations. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (Dysal, Inc. v. Hub Props. Trust, 92 AD3d 826, 827 [2d Dept 2012]). Furthermore, “[i]nterpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument. A court should not imply a term which the parties themselves failed to include” (2632 Realty Dev. Corp. v. 299 Main St., LLC, 94 AD3d 743, 745 [2d Dept 2012]; see also Westchester County Correction Officers Benevolent Ass’n, Inc. v County of Westchester, 99 AD3d 998, 999 [2d Dept 2012]).

Here, the retainer agreement, which was signed by the defendant on July 10, 2014, is clear on its face. The interpretation the defendant suggests, to wit: that the fees were capped at $5,000.00 is in direct contradiction of the plain language of the agreement. Nor, does the court find persuasive the defendant’s claim that the plaintiff’s representation of him in the Supreme Court action was somehow deficient, which would forgive his obligation to pay legal fees. In fact, in connection with that representation, the Supreme Court awarded the plaintiff a charging lien for those outstanding fees, when plaintiff moved by Order to Show Cause to be relieved as counsel on the ground of defendant’s “refusal to acknowledge his obligations” of payment (see Plaintiff’s Exhibits C and E). Accordingly, and having raised no other grounds in opposition, the defendant has failed to raise an issue of fact for trial.

In view of the foregoing, the plaintiff’s motion for summary judgment is granted. Let judgment be entered in the sum of $10,214.50 with interest thereon from June 2, 2015, together with costs and disbursements.

The portion of the plaintiff’s motion which seeks to dismiss the defendant’s counterclaims, which assert causes of action for legal malpractice is granted. Said counterclaims are hereby dismissed.”

Plaintiff pled an adequate cause of action for himself, but could not plead adequately for his corporation.  This outcome is generally the opposite of what one might expect in a legal malpractice case in which the individual is often not in privity with the attorney while the corporation is.  Brion v Moreira  2016 NY Slip Op 03088  Decided on April 21, 2016  Appellate Division, First Department tells us:

“The individual plaintiff (Michael) has adequately alleged a privity relationship between him and defendants, an attorney and his law firm, and the documentary evidence does not conclusively refute those allegations (see generally AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595 [2005]). In particular, the complaint adequately alleges that defendants, who handled estate matters for Michael’s father, now deceased, also agreed to represent both Michael and his father in formalizing an alleged oral agreement between them, which was largely to Michael’s benefit, and which involved transfer of the father’s ownership interests in corporations owned by both of them to Michael (see Nuzum v Field, 106 AD3d 541, 541 [1st Dept 2013], and Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282 [1st Dept 1999]). Although Basonas also adequately alleged a privity relationship that was not conclusively refuted by the documentary evidence, the vague allegation that it suffered unspecified lost profits as a result of defendants’ malpractice was insufficient to support a malpractice claim. Basonas failed to set forth factual allegations from which one could reasonably infer that lost profits were attributable to defendants’ alleged negligent conduct (see Leggiadro, Ltd. v Winston & Strawn, LLP, 119 AD3d 442, 442 [1st Dept 2014]).

The documentary evidence does not conclusively refute Michael’s allegation that the “Acknowledgment of Debt” drafted by defendants failed to memorialize the terms of the oral[*2]agreement between him and his father.”

Vista Food Exch., Inc. v BenefitMall  2016 NY Slip Op 02923  Decided on April 14, 2016 Appellate Division, First Department is an example of the tendency to apply a winning template to almost any situation.  The AD found the template inapplicable in this setting.

“Plaintiff alleges that it relied on defendants’ advice in outsourcing its human resources and benefits functions to a third party recommended by defendants. The third party allegedly accepted funds from plaintiff for the payment of its payroll taxes, but failed to make such payments to the taxing authorities before becoming insolvent.

First, the court correctly dismissed the breach of contract claims asserted in the amended complaint, because the amended complaint does not sufficiently allege that there was consideration to support the alleged oral contract. Consideration sufficient to create a contract “consists of either a benefit to the promisor or a detriment to the promisee” (Weiner v McGraw-Hill, Inc., 57 NY2d 458, 464 [1982]). Here, plaintiff, or the alleged promisee, claims that on the advice of defendants, it decided not to hire a different third-party company to perform its human resources and payroll services, and instead hired the company that defendants recommended. However, it is not alleged that this purported detriment was required by defendants as a condition of their promising to give advice, or was otherwise necessary to consummate the transaction, and, therefore, cannot serve as the requisite consideration needed to form a contract (22 NY Jur 2d, Contracts § 76). Similarly, there are no allegations that defendants, the alleged promisors, received a direct benefit, monetary or otherwise, in exchange for their promise to provide advice. To the extent defendants received payments from the recommended third party rather than from plaintiff directly, such payments provide a benefit that is too remote or indirect to constitute consideration (Trans Intl. Corp. v Clear View Tech., 278 AD2d 1, 1 [1st Dept 2000]).

Even if an enforceable contract had been formed between the parties here, plaintiff’s breach of contract claim would still fail because plaintiff has failed to properly plead general or special damages. Plaintiff’s alleged damages (namely, its potential incurment of tax penalties and other liabilities due to the third party’s failure to pay plaintiff’s taxes) do not directly flow from and are not the “natural and probable consequence” of defendants’ alleged breach, and, therefore, do not qualify as general damages (Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 192 [2008] [internal quotation marks omitted], rearg denied 10 NY3d 890 [*2][2008]). Moreover, the allegations in the amended complaint fail to allege special damages because there are no allegations that defendants foresaw, or should have foreseen, the alleged damages, prior to or at the time the alleged contract was made (id. at 192-193).

The motion court correctly dismissed plaintiff’s claim for breach of the implied covenant of good faith and fair dealing, because it cannot be used as a substitute for plaintiff’s nonviable breach of contract claim (Smile Train, Inc. v Ferris Consulting Corp., 117 AD3d 629, 630 [1st Dept 2014]).

Because plaintiff did not allege defendants’ violation of a legal duty independent of a contract, the motion court correctly dismissed the promissory estoppel claim in the amended complaint and the negligence/negligent misrepresentation claim in the original complaint (MatlinPatterson ATA Holdings LLC v Federal Express Corp., 87 AD3d 836, 842-843 [1st Dept 2011][promissory estoppel], lv denied 21 NY3d 853 [2013]; Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987][negligence]). Further, plaintiff failed to support its negligent misrepresentation claim with sufficient allegations of “a special or privity-like relationship imposing a duty on the defendant[s] to impart correct information to the plaintiff,” or that the information imparted by defendants was incorrect (J.P. Morgan Sec. Inc. v Ader, 127 AD3d 506, 506 [1st Dept 2015][internal quotation marks omitted]).

To the extent plaintiff has not abandoned the issue on appeal, it failed to state a claim for professional malpractice because, under New York law, defendants are not professionals (see Chase Scientific Research v NIA Group, 96 NY2d 20, 29-30 [2001]). Further, plaintiff failed to state a claim for breach of fiduciary duty, since there are no allegations in the complaint that defendants misled plaintiff by making false misrepresentations (see Roni LLC v Arfa, 74 AD3d 442, 444 [1st Dept 2010], affd 18 NY3d 846 [2011]).

A bill is sent, and a partial payment is made.  More bills are sent, and the client just stops paying. The case does not go well, and there is a dispute between client and attorney.  When the attorney sues for fees, what will be the outcome?

More often than not, the account stated principle comes into play and the attorney wins.  Wagner Davis P.C. v Brady  2016 NY Slip Op 50431(U)   Decided on March 30, 2016  Appellate Term, First Department is a recent example.

“A fair interpretation of the trial evidence supports the jury’s finding that plaintiff proved its claim for legal fees based on an account stated. The trial evidence showed that defendant James Brady Jr. retained plaintiff law firm (1) on his own behalf, to represent him in an appeal of a decision rendered in an action regarding air rights to his residential cooperative apartment and (2) as principal of the corporate defendants and on his own behalf, with respect to three commercial nonpayment proceedings commenced against defendants. The evidence also showed that defendants received and retained plaintiff’s invoices without proper objection for a reasonable time, and made partial payments on the sums due (see Brunelle & Hadjikow, P.C. v O’Callaghan, 126 AD3d 584 [2015], appeal dismissed 26 NY3d 975 [2015]; Moses & Singer v S & S Mach. Corp., 251 AD2d 271 [1998], lv denied 92 NY2d 1024 [1998]).

Defendants’ claim that the legal fees were unreasonable is unavailing; “it is not necessary to establish the reasonableness of the fee since the client’s act of holding the statement without objection will be construed as acquiescence as to its correctness” (Cohen Tauber Spievak & Wagner, LLP v Alnwick, 33 AD3d 562, 562—563 [2006] [internal quotation marks omitted], lv dismissed 8 NY3d 840 [2007]).

The trial court properly refused to charge the jury as to discharge “for cause.” There was [*2]insufficient evidence to support a finding that plaintiff engaged in misconduct, failed to prosecute defendants’ cases diligently, or otherwise improperly handled the cases or committed malpractice (see Coccia v Liotta, 70 AD3d 747, 757 [2010], lv dismissed 15 NY3d 767 [2010]). Defendants essentially pointed to so-called errors of counsel which were, in fact, strategic choices which cannot support a discharge for cause (see Doviak v Finkelstein & Partners, LLP, 90 AD3d 696, 699-700 [2011]). Defendants’ claim that attorneys other than Steven Wagner and Stuart Klein personally performed work in the two matters is unavailing, since the governing retainer agreements do not specify that any particular attorney will handle the cases; and defendants, who were aware from the itemized bills that other attorneys were working on the matter, regularly made payments (see Bixby v Somerville, 62 AD3d 1137, 1139 [2009]).

 

You work for a landscaping company, and are working on a big job at Van Cortlandt Park.  You fall off a machine and get hurt.  You apply for Workers’ Compensation benefits, and they are paid. Some months later you are told that you need an attorney.  You hire the attorney and he works on the WC claim.  No one starts a personal injury case.  Is this legal malpractice?

Felix v Klee & Woolf, LLP  2016 NY Slip Op 02960  Decided on April 20, 2016  Appellate Division, Second Department shows the AD going into great detail on how the “but for” portion of legal malpractice is applied.

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney’s breach of the duty [*2]proximately caused the plaintiff actual and ascertainable damages” (Marino v Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 AD3d 566, 566 [internal quotation marks omitted]; see Leder v Spiegel, 9 NY3d 836, 837; Wray v Mallilo & Grossman, 54 AD3d 328, 328-329). “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 attorney’s negligence” (Wray v Mallilo & Grossman, 54 AD3d at 329;see Marino v Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 AD3d at 566).

Thus, “[a] defendant moving for summary judgment in a legal malpractice action must . . . establish prima facie that the plaintiff cannot prove at least one of the essential elements of the malpractice claim” (Wray v Mallilo & Grossman, 54 AD3d at 329; see Marino v Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 AD3d at 566). Contrary to the plaintiff’s contention, even if the defendant had successfully moved on the plaintiff’s behalf for leave to serve a late notice of claim against the City and the Parks Department, the plaintiff would not have prevailed in a subsequent personal injury action against them, as he had no viable common-law negligence or Labor Law claim.

“To make a prima facie showing of liability under Labor Law § 240(1), a plaintiff must establish that the statute was violated and that the violation was a proximate cause of his or her injuries” (Singh v City of New York, 113 AD3d 605, 606). Here, the defendant established that the plaintiff would not have been successful against the City or the Parks Department on a cause of action asserting a violation of Labor Law § 240(1), because the plaintiff would not have been able to show that the accident occurred in the context of “work performed on buildings or structures'” (Vargas v State of New York, 273 AD2d 460, 461, quoting Labor Law § 240[1]). Similarly, the plaintiff would not have been able to assert a viable cause of action pursuant to Labor Law § 241(6), since he was involved with seeding a cricket field, rather than in “construction, excavation or demolition work” (Labor Law § 241[6]). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a triable issue of fact with respect to whether the work he performed was covered by Labor Law § 240(1) or § 241(6).

“A cause of action alleging a violation of Labor Law § 200 or common-law negligence may arise from either dangerous or defective premises conditions at a work site or the manner in which the work is performed” (Rodriguez v Trades Constr. Servs. Corp., 121 AD3d 962, 964). Where, as here, the claim arises out of alleged defects or dangers in the methods or materials of the work, “recovery cannot be had under Labor Law § 200 unless it is shown that the party to be charged had the authority to supervise or control the performance of the work” (id. at 964; see Ortega v Puccia, 57 AD3d 54, 61). The defendant established, prima facie, that neither the City nor the Parks Department, as the owner of Van Cortlandt Park, could be held liable under Labor Law § 200 or for common-law negligence. Although the plaintiff argues that the City and the Parks Department had notice of the dangerous manner in which the seeding machine was being used at the work site, the record is clear that neither the City nor the Parks Department had any authority to supervise or control the performance of the plaintiff’s work (see Rizzuto v L.A. Wenger Contr. Co., 91 NY2d 343, 352; Russin v Louis N. Picciano & Son, 54 NY2d 311, 317; Gallello v MARJ Distribs., Inc., 50 AD3d 734, 735; Dooley v Peerless Importers, Inc., 42 AD3d 199, 204-205; Guerra v Port Auth. of N.Y. & N. J., 35 AD3d 810, 811; Perri v Gilbert Johnson Enters., Ltd., 14 AD3d 681, 683; Everitt v Nozkowski, 285 AD2d 442, 443; Reynolds v Brady & Co., 38 AD2d 746, 746-747). In opposition, the plaintiff failed to raise a triable issue of fact (see Pacheco v Halstead Communications, Ltd., 90 AD3d 877).

Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging legal malpractice.”