Client is a big-time hedge fund earner, getting $5 and $6 million in bonuses over the years.  Suddently, the bottom falls out, and he is offered severeness of only $ 1.6 million.  He consults with defendants who tell him that they can help.  However, defendants divert from the contractually set-up appeal procedure and plaintiff ends up with nothing at all.  Negligence or judgment?

Garner v Liddle & Robinson, L.L.P.  2016 NY Slip Op 30659(U)  April 13, 2016  Supreme Court, New York County  Docket Number: 150058-2012  Judge: George J. Silver takes the view that there are sharp issues of fact to be determined by the jury.

“From 2001 through 2006, plaintiff, along with Alai, received an annual Bonus ranging from $5.1 million to approximately $9 million. Specifically, plaintiff and Alai each received, for the years 2001through2006, bonuses of $5.1 million, $7.25 million, $8.9 million, $8.3 million, $9 million, and $7.4 million respectively. Then, in June 2007, UBS closed Dillon Read, and on June 20, 2007, plaintiff and Alai each received a letter terminating his employment and detailing the terms of his termination and the UBS Separation Program (the “Separation Letter”). The Separation Letter offered to pay plaintiff severance under the UBS Global Management Separation Program (the “Separation Program”) consisting of (i) thirty nine (39) weeks of his base salary, and (ii) a Special payment of $1,850,000 (“Severance Offer”), for a total of $1,981,000.00. Alai received an identical termination letter. The Separation Letter explained that the Special Payment of $1,850,00 had been determined at the sole discretion of Dillon Read’s management and authorized under a supplement to the Separation Program for certain employees, and that in order to receive the Severance Offer, plaintiff was required to sign a Separation Agreement and General Release within forty five ( 45) days. Further, the Separation Letter explained that if plaintiff wished to challenge the Severance Offer or any aspect of the Separation Agreement, plaintiff was required to first consult with his Client Relationship Manager. The Separation Letter further stated that if plaintiff was unable to resolve the issues through such consultation, plaintiff had the right, within forty-five (45) days, to submit a written statement to a UBS committee (the “Committee”) through Kiku Taura, the UBS Executive Director/Human Resources at UBS Global Asset Management (Americas), Inc., describing the basis for his claim. Upon receiving the letter, plaintiff and Alali met with Liddle and Marc Susswein (“Susswein”) and retained L&R for the purpose of obtaining “guidance and advice concerning their rights under the Separation Agreement Letter, the Separation Program, their employment agreements, and prevailing employment and contract laws”, and ultimately, to obtain a higher Severance Offer. On May 2, 2008, plaintiff entered into a retainer agreement with defendants whereby plaintiff agreed to pay, in addition to retainer and contingency fees, disbursements and expenses. Plaintiff alleges that Liddle advised him that he and Alali were each entitled to receive a minimum of 3% of the net profits of the CRE for the period from January 1, 2007 until their termination – approximately $6 million each, a sum that more closely represented their historical bonuses of 3% during the years 2001-06 – as opposed to the Special Payment of $1.8 million. Further, plaintiff alleges that Liddle advised him that he would respond to the Separation Letter, and “expressed confidence that they would each receive at least $6 million based upon the prevailing law and his familiarity with UBS’ business practice and management, and that, in no event would they receive less than $2 million each.” On August 1, 2007, Liddle wrote to Rebecca White, Esq. (White), the Managing Director of UBS America’s Legal Employment Section, to discuss the terms of the Settlement Letter and the Severance Offer on behalf of plaintiff and Alali. The letter asks White to share its contents with certain specified “senior business executives within UBS.” Upon receipt of the letter, which had been forwarded to her as an email attachment by Susswein that same day, White emailed Susswein that she would forward the letter to “the UBS AM Severance Committee,” and suggested in the future he deal directly with Kiku Taura, “as set forth in the plan.” In response, Susswein told White, “Messrs. Garner and [redacted] are of the belief that given the substantial amounts that are at issue in their matter, that it is likely better addressed at a senior level outside of the UBS SM Severance Committee, which is why we have not submitted their letter directly to the committee.” White responded, “Just so it is clear, the severance packages offered to these employees will expire by their terms. As you requested, we will address the issues you have raised after we have had the opportunity to discuss them with the appropriate members of management.”

” In October of 2008, approximately six months after plaintiff turned down the increased offer of $2.6 million, defendants initiated an arbitration proceeding on behalf of plaintiff before the Honorable Stephen Crane at JAMS. Judge Crane dismissed the majority of plaintiffs claims, and specifically determined that “because he failed to comply with the Separation program’s appeal procedure, [plaintiffJ has failed to exhaust his administrative remedies.” As such, plaintiff was no longer entitled to the initial Severance Offer. Subsequently, on September 24, 20 I 0, defendants asked Judge Crane to restore the Severance Offer, which Judge Crane declined to do. Twelve days later, Judge Crane issued his Final Award, dismissing plaintiffs remaining claims. As a result, plaintiff received no severance payment from UBS, and now seeks to recover from defendants the amount originally offered by UBS in its June 20, 2007 Separation Letter, as well as legal fees. ”

“Neither party is entitled to summary judgment with respect to plaintiffs’ causes of action for legal malpractice. Based upon the record before the court it is for jury to determine whether defendants’ decision to attempt to negotiate a higher severance payment for plaintiff by means other than an appeal to the UBS AM Severance Committee, as called for in the Separation Agreement Letter, was a reasonable strategic decision which cannot serve as the basis of a malpractice claim (see Wagner Davis P.C. v Gargano, 116 AD3d 426 [l5t Dept 2014]) or was “so unreasonable at the inception as to have manifested professional incompetence” (Rodriguez v Fredericks, 213 AD2d 176 [1st Dept 1995]). There are also issues of fact as to whether defendants’ alleged negligence proximately caused plaintiff actual and ascertainable damages. Plaintiff contends that when he rejected UBS’ Revised Severance Offer of $2.6 million he did so under the belief that he was choosing between the Revised Severance Offer and original Severance Offer because he had never been advised that defendants, through the August 2007 correspondence with White, had not preserved his rights to the original Severance Off er. Plaintiff claims that had he known that he did not have the right to any severance payment from UBS unless UBS renewed its offer or a court or arbitrator awarded him the payment he would have viewed the Revised Severance Offer differently and would have accepted it without hesitation. Plaintiff also claims that the Revised Severance Offer was conditional in that both he and Alali had to accept it and that he rejected it in light of the advice provided to him by defendants that he was entitled to a $6 million severance, based upon his past bonuses, and that he would receive, at worst, approximately $2 million. Defendants argue that their representation of plaintiff was not a proximate cause of plaintiffs alleged loss because their representation of plaintiff resulted in the Revised Severance Offer that was $750,000 higher than the initial Severance Offer. Defendants argue that in the face of an increased severance offer there can be no legal malpractice. Plaintiffs claim that his rejection of the significantly higher Revised Severance Offer was compelled by defendants’ advice that plaintiffs rights to the Severance Offer had been preserved and that he that he was entitled to at most $6 million and at worst $2 million, in the face of defendants’ claim that no such advice was given, raises issues of fact and credibility that must be resolved by a jury and which necessitate denial of both the motion and cross-motion for summary judgment. “

Weight v Day  2015 NY Slip Op 09093 [134 AD3d 806]  December 9, 2015  Appellate Division, Second Department is an accounting malpractice case with implications for the legal malpractice field.  The statute of limitations begins to run, the Second Department tells us, when there is a verifiable and concrete end to the representation.  The basics are that husband and wife hired defendant to run a steel business while they divorced.  The steel business did not go well, and it “closed.”  About a year later defendant tendered his resignation as trustee.  Does the statute run from the “closing” or the resignation?  It is the latter.

“On February 10, 2014, exactly three years after Day sent his resignation letter, the plaintiff commenced this action against the defendants, alleging, inter alia, accounting malpractice, breach of fiduciary duty, fraud, and breach of contract. The plaintiff alleged, among other things, that Day failed to properly manage Weight Steel, prevent her husband from needlessly using the company’s assets for his personal gain, deposit the company’s payments, and bill its customers. The plaintiff further alleged that Day irresponsibly ran up the company’s debt, intentionally concealed its dire financial situation, and denied her access to its records and facilities. The complaint included an allegation that Weight Steel “closed” on or about August 23, 2010.

[*2] Thereafter, the defendants moved pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint. Among other things, they argued that the complaint was time-barred because it did not allege any errors, acts, or omissions that occurred after August 23, 2010, the date that Weight Steel allegedly closed. In addition, the defendants argued that all of the causes of action other than that alleging accounting malpractice should be dismissed as duplicative of the accounting malpractice cause of action. The Supreme Court granted the defendants’ motion to dismiss the complaint, concluding that the causes of action alleging accounting malpractice and breach of fiduciary duty were time-barred, and further concluding, in effect, that the remaining causes of action should be dismissed for failure to state a cause of action. The plaintiff appeals, and we modify.

In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time in which to sue has expired (see Jalayer v Stigliano, 94 AD3d 702, 703 [2012]; Fleetwood Agency, Inc. v Verde Elec. Corp., 85 AD3d 850, 850 [2011]). Contrary to the Supreme Court’s determination, the defendants failed to make a prima facie showing that the causes of action alleging accounting malpractice and breach of fiduciary duty were time-barred. A claim sounding in accounting malpractice is governed by a three-year statute of limitations (see CPLR 214 [6]), and, under the circumstances of this case, the plaintiff’s claim of breach of fiduciary duty is also governed by a three-year statute of limitations since, inter alia, the remedy sought is purely monetary in nature and it cannot be said that an allegation of fraud is essential to that claim (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009]; Loeuis v Grushin, 126 AD3d 761, 764 [2015]; McDonnell v Bradley, 109 AD3d 592, 594 [2013]; cf. Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 541-542 [2004]; RGH Liquidating Trust v Deloitte & Touche LLP, 47 AD3d 516, 517 [2008]). Contrary to the court’s determination, the defendants failed to establish that these causes of action accrued on August 23, 2010, when Weight Steel allegedly “closed.” It is undisputed that Day did not resign as trustee of Weight Steel until February 10, 2011. Further, the defendants did not establish when they delivered to the plaintiff all the pertinent documents related to their accounting work and Day’s additional duties as trustee. Based upon the defendants’ submissions, including the complaint and the agreement outlining the terms of the trusteeship, the earliest possible accrual date with respect to the claims of accounting malpractice and breach of fiduciary duty was February 10, 2011, exactly three years prior to the commencement of this action (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d at 139; McCoy v Feinman, 99 NY2d 295, 301 [2002]; Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]). Thus, the defendants failed to meet their initial burden of demonstrating that those causes of action were time-barred. Accordingly, the court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss those causes of action. Moreover, contrary to the defendants’ contention, dismissal of the cause of action alleging breach of fiduciary duty is not warranted on the ground that it is duplicative of the cause of action alleging accounting malpractice (cf. Staffenberg v Fairfield Pagma Assoc., L.P., 95 AD3d 873, 874 [2012]).”

Sure, there is a requirement that attorneys provide a retainer agreement or a letter setting forth the work to be performed and the costs.  However, the Appellate Division has ruled that an attorney can collect fees even in the absence of a retainer agreement in Seth Rubenstein v. Ganea.   So, what does it matter anyway?

Well, it can matter when the attorney wants to limit his exposure for not undertaking certain acts. Soubbotin v Joseph Potashnik & Assoc., PLLC
2016 NY Slip Op 02800  Decided on April 13, 2016  Appellate Division, Second Department  is an example.  Was the attorney required to engage in a hearing before the NYS Dept. of Labor?  It’s a question of fact, and one which could have been ruled out in the retainer agreement.

“The plaintiffs commenced this action alleging that the defendants committed legal malpractice by failing to timely request a hearing before an Administrative Law Judge to review certain determinations of the New York State Department of Labor regarding overpayment of unemployment insurance benefits.

The Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Contrary to the defendants’ contention, they failed to demonstrate, prima facie, that the acts that they allegedly failed to perform were beyond the scope of the subject retainer agreement (cf. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435;DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, 61 AD3d 849, 850). Accordingly, the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. Thus, the motion was properly denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”

Sometimes the Appellate Division will opine and give its full reasoning, sometimes not.  In Soubbotin v Joseph Potashnik & Assoc., PLLC  2016 NY Slip Op 02800  Decided on April 13, 2016  Appellate Division, Second Department the AD merely said that an argument put forward by  the attorneys did not even make it to the prima facie stage.

“The plaintiffs commenced this action alleging that the defendants committed legal malpractice by failing to timely request a hearing before an Administrative Law Judge to review certain determinations of the New York State Department of Labor regarding overpayment of unemployment insurance benefits.

The Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Contrary to the defendants’ contention, they failed to demonstrate, prima facie, that the acts that they allegedly failed to perform were beyond the scope of the subject retainer agreement (cf. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, 61 AD3d 849, 850). Accordingly, the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. Thus, the motion was properly denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”

Bad result suggests that a bad choice was made by the attorneys.  The bad result/choice suggests that a legal malpractice case might be indicated.  This is fair reasoning, but Courts often fail to join in the analysis, and point to a different cause of the bad result.  Put another way, lots of legal malpractice cases are dismissed on the “but for” portion of the equation.

Excelsior Capitol LLC v K&L Gates LLP  2016 NY Slip Op 02738  Decided on April 12, 2016
Appellate Division, First Department is one such example.  The First Department found, in essence, that it was the judge who decided the case wrongly, and the bad result was not proximately caused by attorney mistake.

“In the underlying action, the Second Department found that the trial court erred in dismissing Excelsior’s causes of action to recover upon the guarantor’s three personal guarantees, finding that a jury could have found that the guarantor consented to the extensions of said guarantees, and remitted the matter for a new trial on those causes of action (Excelsior Capital, LLC v Superior Broadcasting Co., Inc., 82 AD3d 696, 699 [2d Dept 2011] [internal citations omitted]). The trial court’s error in that enforcement action was “independent of or far removed from the [attorney’s] conduct,” and therefore constituted an intervening cause, breaking any proximate cause by the defendants (Kriz v Schum, 75 NY2d 25, 36 [1989], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). In any event, plaintiff’s causation theory is speculative.

“[T]he selection of one among several reasonable courses of action does not constitute malpractice'” (Zarin v Reid & Priest, 184 AD2d 385, 387 [1st Dept 1992]). The issue in this case is a May 26 letter which merely reserved Excelsior’s rights while the parties worked out a possible forbearance agreement and redocumentation of the notes and guarantees, and did not ask the guarantor to reaffirm his guarantees. This was a reasonable course of action based on statements made by the guarantor’s attorney as to the continuing validity of the guarantees, and the fact that the parties were attempting resolution of this matter. More importantly, it was speculative to believe that the guarantor would have provided such a reaffirmance, since if[*2] prompt resolution was not reached, litigation was likely (see Sherwood Group v Dornbush, Mensch, Mandelstam & Silverman, 191 AD2d 292, 294 [1st Dept 1993]).”

While the non-attorney was but a small part of this case and non-disclosure was a larger part of the case, this case was dismissed mostly because it is very difficult to succeed on a legal malpractice matrimonial case unless one can show that the monied spouse hid significant assets.

Schiff v Sallah Law Firm, P.C.  2015 NY Slip Op 03820 [128 AD3d 668]  May 6, 2015
Appellate Division, Second Department tells us that “Here, the Sallah defendants established, prima facie, that the law firm, Donald R. Sallah, Dean J. Sallah, and Patrick M. Kerr did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that settlement of the underlying divorce action was not effectively compelled by any mistakes on their part (see Boone v Bender, 74 AD3d 1111, 1113 [2010]; Luniewski v Zeitlin, 188 AD2d 642 [1992]). Further, the Sallah defendants established, prima facie, that the defendant Francine J. Zecca could not be held liable for professional malpractice because she was not an attorney.

The plaintiff, in opposition, failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the Supreme Court’s determination was not premature. Although the plaintiff opposed summary judgment based, in part, on the defendant’s failure to produce certain discovery, that discovery was requested or ordered after the filing of the defendants’ motion for summary judgment, which imposed an automatic stay of discovery (see CPLR 3214 [b]). Furthermore, the plaintiff failed to demonstrate that further discovery may have led to relevant evidence, or that facts essential to oppose summary judgment were exclusively within the defendants’ knowledge and control (see South Shore Neurologic Assoc., P.C. v Mobile Health Mgt. Servs., Inc., 121 AD3d 881 [2014]; Buchinger v Jazz Leasing Corp., 95 AD3d 1053, 1053-1054 [2012]).

Accordingly, the Supreme Court properly granted that branch of the Sallah defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them. Skelos, J.P., Balkin, Dickerson and LaSalle, JJ., concur.”

What happens when NY clients engage in Georgia real estate transactions and the deal goes sour?  The short answer is that you sue the attorney, if it was (even arguably) the attorney’s fault.  Where do you sue?  NY is definitely easier, and may have laws which favor plaintiff.  The sticking point is due process and the ability of a NY client to haul a GA lawyer up here to defend.

Jacobs v 201 Stephenson Corp.  2016 NY Slip Op 02621  Decided on April 6, 2016 Appellate Division, Second Department is an example of how the courts balance due process and state’s rights.

“The plaintiffs, Sholom Jacobs and 326 Coy Burgess Road, LLC, are domiciliaries of the State of New York. The defendants Douglas P. McManamy, an attorney, and McManamy Jackson PC, a law firm (hereinafter together the defendants) are domiciliaries of the State of Georgia. In 2014, the plaintiffs commenced this action against the defendants and others seeking damages for, inter alia, alleged fraud in connection with out-of-state real estate transactions. Insofar as asserted against the defendants, the complaint alleged a cause of action sounding in legal malpractice and one sounding in fraudulent misrepresentation. The defendants made a pre-answer motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them for lack of personal jurisdiction. In an order entered June 24, 2014, the Supreme Court denied the motion. Thereafter, the defendants moved for leave to reargue their motion. In the order appealed from, the Supreme Court granted the defendants’ motion for leave to reargue and, upon reargument, granted the defendants’ motion to dismiss the complaint insofar as asserted against them.

“Although the ultimate burden of proof regarding personal jurisdiction rests with the plaintiff, to defeat a CPLR 3211(a)(8) motion to dismiss a complaint, the plaintiff need only make a prima facie showing that the defendant is subject to the personal jurisdiction of the court” (Whitcraft v Runyon, 123 AD3d 811, 812; see Weitz v Weitz, 85 AD3d 1153, 1154; Cornely v Dynamic HVAC Supply, LLC,44AD3d 986, 986). Under CPLR 302(a)(1), “a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state.” The transaction of business criterion under CPLR 302(a) is satisfied if it can be shown that a ” defendant’s activities [in New York] were purposeful and there is a [*2]substantial relationship between the transaction and the claim asserted'” (Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433, 434, quoting Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71). “Purposeful activities are those with which a defendant, through volitional acts, avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws'” (Fischbarg v Doucet, 9 NY3d 375, 380, quoting McKee Elec. Co. v Rauland-Borg Corp., 20 NY2d 377, 382). “Whether a non-domiciliary has engaged in sufficient purposeful activity to confer jurisdiction in New York requires an examination of the totality of the circumstances” (Farkas v Farkas, 36 AD3d 852, 853).

Here, review of the totality of the circumstances leads to the conclusion that the defendants did not conduct sufficient purposeful activities in New York which bore a substantial relationship to the subject matter of this action so as to avail themselves of the benefits and protections of New York’s laws (see Paterno v Laser Spine Inst., 112 AD3d 34, 40, affd 24 NY3d 370; Executive Life Ltd. v Silverman, 68 AD3d 715; Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d at 434). Therefore, the defendants did not “transact business” in this State and were not subject to the “long arm” jurisdiction provision of CPLR 302(a)(1).

In addition, contrary to the plaintiffs’ contention, personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3)(ii), based upon alleged tortious activity occurring outside New York which caused injury within New York (see Muse Collections, Inc. v Carissima Bijoux, Inc., 86 AD3d 631, 631-632).

Accordingly, the plaintiffs failed to make a prima facie showing that the defendants were subject to the personal jurisdiction of the Supreme Court (see Daniel B. Katz & Assoc. Corp. v Midland Rushmore, LLC, 90 AD3d 977, 978). Therefore, the Supreme Court properly, upon reargument, granted the defendants’ motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against them.”

We sometimes wonder why defendants make motions for summary judgment were it seems clear that there are disputed questions of fact.  Brown-Jodoin v Pirrotti  2016 NY Slip Op 02606
Decided on April 6, 2016  Appellate Division, Second Department is one of those cases.  Defendants tried to dismiss on the “standing” issue merely because this was an estates case – legal malpractice.  However, it was plaintiff herself who retained the attorneys on her behalf.  They tried a statute of limitations dismissal when their own records showed continuing billing.

“The plaintiff retained the defendant Anthony Joseph Pirrotti and his former law firm Pirrotti and Pirrotti, LLP (hereinafter the LLP), after her father’s death on May 12, 2003, to probate his last will and testament, and to perform any and all professional services required to finalize his estate. The plaintiff executed a retainer agreement on May 18, 2003, and paid a $7,500 retainer fee to the LLP with a personal check. The LLP disbanded some time in June 2003, and Pirrotti opened up the Law Offices of Anthony J. Pirrotti, P.C. (hereinafter the PC), which continued to represent the plaintiff.

Pirrotti asked another firm, Walsh and Amicucci, LLP, to assist him with the probate of the estate, with the plaintiff’s consent. Thereafter, in August 2006, the plaintiff retained Matthew Nolfo, at Pirrotti’s suggestion, to handle the probate proceeding and tax matters relating to the estate. On August 21, 2006, she executed a consent to change attorney form substituting Nolfo as her counsel in place of the PC. Subsequently, Nolfo copied Pirrotti on some of the communications he sent to the plaintiff and conducted one or two conference calls with the plaintiff and Pirrotti. Pirrotti continued to bill the plaintiff under the same billing number assigned to the probate matter, at the same rate, and referred to the plaintiff in the billing entries as “client.” By letter dated April 6, 2008, the plaintiff advised Pirrotti that he was “fired” because he failed to complete the services he had agreed to perform, and that Nolfo would be handling the outstanding issues with respect to her father’s estate.

The plaintiff commenced this action against Pirrotti, the LLP, and the PC to recover damages for legal malpractice and breach of contract by summons with notice, dated October 5, 2010, and filed October 7, 2010. The plaintiff then served a complaint, dated February 25, 2011, upon the defendants. The defendants made a pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a) based upon documentary evidence, as time-barred, and for failure to state a cause [*2]of action. In an order dated August 17, 2011, the Supreme Court denied the motion, finding, inter alia, that the defendants’ own documents showed that Pirrotti and the PC continued to represent the plaintiff in connection with the estate after the substitution by Nolfo until April 6, 2008, less than three years prior to the commencement of this action, that the defendants’ documents showed that the plaintiff, as an individual, executed the retainer agreement and paid a retainer to the defendants so that the documentary evidence did not demonstrate that the plaintiff lacked standing to bring this action, and that the breach of contract causes of action were not duplicative of the malpractice causes of action.”

“”To have standing in a particular dispute, a plaintiff must demonstrate an injury in fact that falls within the relevant zone of interests sought to be protected by law” (Bernfeld v Kurilenko, 91 AD3d 893, 894 [internal quotation marks omitted]; see Matter of Fritz v Huntington Hosp., 39 NY2d 339, 346). Here, the defendants failed to establish, as a matter of law, that the plaintiff lacked standing or the legal capacity to commence this action. In support of their motion, the defendants submitted, inter alia, the complaint and a transcript of the plaintiff’s deposition testimony. The complaint alleged, and the plaintiff testified, that she was actually harmed by, inter alia, the defendants’ failure to timely and properly probate her father’s will and their collection of fees that were unearned.

The defendants also contend that the plaintiff’s legal malpractice cause of action is time-barred. The Supreme Court held that this claim was barred under the law of the case doctrine, based on its determination in a previous order, dated August 17, 2011, that the continuous representation doctrine tolled the statute of limitations period until April 6, 2008, the date that the plaintiff purportedly fired Pirrotti. Since the defendants did not appeal the August 17, 2011, order, the finding therein constituted the law of the case, and the Supreme Court properly applied the doctrine in reaching its decision on the subject motion (see Bartels & Feuereisen, LLP v Geico Ins. Agency, Inc., 131 AD3d 610, 612; Certain Underwriters at Lloyd’s London v North Shore Signature Homes, Inc., 125 AD3d 799, 800; see also Siegel, NY Prac § 276 [5th ed]). However, because the law of the case doctrine does not bind an appellate court (see Debcon Fin. Servs., Inc. v 83-17 Broadway Corp., 126 AD3d 752, 754; Hothan v Mercy Med. Ctr., 105 AD3d 905, 905-906; cf. Certain Underwriters at Lloyd’s London v North Shore Signature Homes, Inc., 125 AD3d at 800), we will consider the defendants’ claim on the merits (see Powell v Kasper, 84 AD3d 915, 916). Upon consideration of the merits, we find that the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the legal malpractice cause of action as time-barred (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792; 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704). Since the defendants failed to satisfy their prima facie burden, that branch of the motion which was for summary judgment dismissing the legal malpractice cause of action is properly denied without regard to the sufficiency of the plaintiff’s opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The defendants also failed to establish their prima facie entitlement to judgment as a matter of law dismissing the legal malpractice cause of action on the basis that their actions were not the proximate cause of the plaintiff’s alleged damages. “In an action to recover damages for legal malpractice, a plaintiff must demonstrate 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 plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [internal quotation marks omitted]; see Ginsberg Dev. Cos., LLC, Carbone, 134 AD3d 890, 893). “[T]o establish [*3]causation, a plaintiff must show that he or she would not have suffered any damages but for the attorney’s negligence” (Delollis v Archer, 128 AD3d 755, 756; see Buczek v Dell & Little, LLP, 127 AD3d 1121, 1122). Here, the pleadings and deposition testimony proffered by the defendants presented conflicting evidence as to whether they caused the plaintiff actual damages by, inter alia, negligently advising the plaintiff that filing federal and state estate taxes was unnecessary and failing to timely and properly probate the plaintiff’s father’s will. Since the defendants failed to meet their prima facie burden, we need not consider the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).”

Attorney client anger may fester for a very long time, and then erupt.  In Katz v Landsman
2016 NY Slip Op 30533(U)  March 30, 2016  Supreme Court, New York County   Docket Number: 161147/14 Judge: Carol R. Edmead we see sort of the opposite.  A dispute, a battle, 6 years go by, and then a second and decisive battle.

“This case arises from Landsman’s representation of Katz in a proceeding in Surrogate’s Court in a matter involving a trust created by Katz’s grandmother. While the complaint is short on dates, it is clear that the representation ended when Katz fired Landsman in November 2008. On November 19, 2008, Landsman sent Katz an email notifying him that he would not spend any more time on the matter until e paid an outstanding bill, and Katz responded, on the same day, stating that “[w]e concur that you are not to proceed any further on this case until the matter of your presented bill is resolved” (emphasis in original). Landsman, in an affidavit submitted with the motion to dismiss, stated that “[t]he fee issue was not resolved and I did nothing further on Plaintiffs behalf’ (Katz aff, if 3). There is no dispute as to whether Katz’s email constituted termination. Landsman subsequently, in September 2014, brought an action in this court, entitled Landsman v Katz, index No. 652770/14, to recover his fees. That action was before Judge Reed, who granted dismissal without prejudice because Landsman failed to satisfy 22 NYCRR 137. Specifically, Judge Reed held that while Landsman initiated an arbitration in December 2008, he failed “to submit documentary evidence or other proof that a hearing was held before an arbitrator as mandated by 22 NYCRR 137″ (Judge Reed’s September 30, 2015 decision and order). Shortly after, Landsman initiated the fees action and nearly six years after terminating him, Katz initiated this action by filing a summons with notice in November 2014. While Landsman brought his action for fees solely as an individual, Katz, in this action, has sued two legal entities associated with Landsman: Landsman & Funk and Landsman P.C. The first, Landsman & Funk, was iµinitially hired by Katz in 2005, but was succeeded by Landsman P.C. when Landsman’s partner left the practice of law in June 2007. ”

“A review of the complaint makes it equally as clear that Katz’s claims for breach of contract and breach of fiduciary duty are duplicative of his claim for legal malpractice, as they ·’ rely on the same set of facts and seek the same damages (see Katz’s complaint,~ 62 [seeking $685,000 plus $1,000,000 in punitive damages ‘for each of the four causes of action]). As these ~ – claims are duplicative of the malpractice claim,~ they must be dismissed (Raghavendra v Brill, 128 AD3d 414, 414-415 [1st Dept 2015]). Thus, Katz’s complaint must be dismissed as the “legal malpractice and intentional infliction of emotional distress causes of action are barred by the statute of limitations and the breach of contract and breach of fiduciary duty claims are duplicative of the legal malpractice claim. In an effort to avoid this result, Katz turns to a line of cases that holds that violation of the Judiciary Law§ 487, and other intentional torts; are not subsumed by legal malpractice claims  when they arise from the same set of facts (see e.g. Sabalza v Salgado, 85 AD3d 436, 438 [1st Dept 2011] [holding that dismissal of a claim under Judiciary Law§ 487 was “not duplicative of causes of action alleging legal malpractice, since the statutory claim requires an intent to deceive, 1i whereas a legal malpractice claim is based on negligent conduct”]). Katz argues this despite the ii i! fact that the complaint does not contain a claim for violation of Judiciary Law § 487. Instead, Katz claims that he could have brought such a claim. ‘ ,. Without moving for relief, Katz suggests that the court could grant him leave to amend the complaint to add claims that have a six-year.statute of limitations and an intentional ” component, such as violation Judiciary Law § 487 and fraud. While this issue is not properly raised, the court briefly points out that, while leave to amend is freely given under CPLR 3025 ·l (b ), “in order to conserve judicial resources, an examination of the underlying merits of the proposed causes of action is warranted,” and “[w]here a court concludes that an application to amend a pleading clearly lacks merit, leave is properly denied” (Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [1st Dept 2009] [internal citation omitted]). While Katz argues that the allegations in the complaint could sustain claims for fraud and a violation of Judiciary Law§ 487, that he has simply not labeled them as such, the allegations are far too conclusory to sustain a claim for either of these causes of action (see Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297 [1st Dept 2004] [holding that claims for fraud and violation of Judiciary Law § 487 “were not pleaded with sufficient particularity”]). Even if this were not the case, invoices show that Landsman & Funk stopped working on the case over seven years before Katz filed his summons. Thus, even under a six year statute of limitations, Katz’s speculative claims are also barred by the statute of limitations. “