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. “

New York Univ. v International Brain Research  Fund., Inc.  2016 NY Slip Op   30434(U)  March 14, 2016  Supreme Court, New York County  Docket Number: 652954/2013
Judge: Jeffrey K. Oing  is a rare look into the medicine-research professional funding world.  IBRF suddenly cut off funding to NYU, and litigation ensued. Whether in the legal malpractice setting or here, the same rules concerning fiduciary relationships in both attorney-client and funder-fundee obtain.

In its counterclaim for breach of fiduciary duty, IBRF alleges that plaintiffs knew or should have known that “Dr. Hilz was not conducting his TBI research at plaintiff school of medicine and/or that he was being paid by others to conduct such research, and that there was no laboratory at plaintiff school of medicine for the conduct of Dr. Hilz’s TBI research” (Second Amended Counterclaims, ~ 55). This claim must be dismissed because it does ·not adequately allege the requisite fiduciary relationship (Baumann v Hanover Community Bank, 100 AD3d 814, 817 [2d Dept 2012] [one of the allegations of a cause of action for breach of fiduciary is the existence of fiduciary relationship]). In order to establish a fiduciary relationship, a party must “‘set forth allegations that, apart from the terms of the contract’ … the parties ‘created a relationship of higher trust than would arise from their contracts alone'” (Brooks v Key Trust Co. Natl. Assn., 26 AD3d 628, 630 [3d Dept 2006], quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 20 [2005]). Here, the Second Amended Counterclaims do not allege any facts suggesting that the parties intended to create such a “relationship of higher trust” beyond their contractual grantor-grantee relationship. Instead, IBRF merely pleads, in a conclusory manner, that plaintiffs, “either jointly or severally, owe a fiduciary duty to defendant” (Second Amended Counterclaims, ¶ 49). Although IBRF also asserts that a “confidential relationship [was] established by the contract” (opposition memorandum at 7), this conclusory allegation fails to plead a “relationship of higher trust” existing “apart from the terms of the contract” and is thus insufficient under New York law (Brooks, 26 AD3d at 630, supra). In addition, the breach of fiduciary duty counterclaim must be dismissed because it “merely duplicate[s] the breach of contract claim” (RNK Capital LLC v Natsource LLC, 76 AD3d 840, 842 [1st Dept 2010]; Brooks, 26 AD3d. at 630 [breach of fiduciary duty claim is “properly dismissed as duplicative” where it “is based upon the same facts and theories as [a] breach of contract claim”] ) . Indeed, the Second Amended Counterclaims fail to plead any facts supporting a breach of fiduciary claim independent of the Grant Agreement (Second Amended Counterclaims, ¶¶55-56 [basing fiduciary duty counterclaim solely on plaintiffs’ alleged “disregard to the terms and conditions of  the grant”]). “

Analysis of the “but for” portion of the legal malpractice equation is the richest part of the problem.  Departures tend to be obvious or patent; how they affect the viability of the case is the “but for” portion.

Russo v Rozenholc  2015 NY Slip Op 06029 [130 AD3d 492]  July 9, 2015  Appellate Division, First Department is the story of defendant trying to dismiss the case on a bunch of arguments that plaintiff could not have won the case in any event…and that he would have lost no matter what the attorney did.  The Court disagrees, and teases out the connection between the attorney’s mistake and the bad outcome.

“In May 2006, the nonparty building owner filed an application with the Department of Housing and Community Renewal (DHCR) seeking to demolish the building located at 220 Central Park South in Manhattan and evict the tenants. As a result, a group of rent-stabilized tenants formed a tenants’ association to rebuff the building owner’s efforts. One of those tenants was plaintiff’s decedent Ronald E. Pecunies (the decedent), who lived with his girlfriend Emel Dilek in apartment 16AB—a large unit created by converting two apartments into one.

The tenants retained defendants David Rozenholc and David Rozenholc and Associates (collectively, DR&A) to represent them in the DHCR proceeding and to negotiate with the building owner. In the retainer agreement, dated April 3, 2009, the tenants represented and warranted that they had “agreed to share equally in any settlement offer made by [the owner].” The retainer agreement also stated that each apartment represented a single share, but specifically stated, “it is further agreed that [decedent], who occupies combined apartment 16 AB[,] will receive two (2) shares and agrees to pay two (2) shares of any legal fees owed.”

In April 2009, DHCR issued an order permitting the building owner to evict the tenants. In February 2010, after unsuccessfully challenging the order, DR&A commenced a CPLR article 78 proceeding on behalf of the tenants, including decedent. However, decedent died on May 22, 2010, after the commencement of the article 78 proceeding but before any settlement could be reached with the building owner. On September 24, 2010, counsel for decedent’s estate wrote to DR&A, authorizing it to continue to represent the estate’s interest. According to the estate’s counsel, this authority came from plaintiff, who was the executor of decedent’s estate.”

“The tenants and the building owner ultimately settled the article 78 proceeding for more than $33 million. At approximately the same time, plaintiff, Dilek, and the building owner, entered into an agreement, dated December 2, 2010 (the Dilek buyout agreement), in which the plaintiff recited that as executor of the estate, he had no claim to apartment 16AB after decedent died on May 22, 2010. Plaintiff also recited that Dilek had occupied apartment 16AB before decedent’s death “and succeeded to his tenancy.” The signatories to the Dilek buyout agreement agreed that in exchange for Dilek’s vacating apartment 16AB, the building owner would pay her a single share’s worth of the $33 million settlement—namely, $1,562,500 ($1,700,000 less $187,500 in counsel fees). The Dilek buyout agreement further stated that DR&A represented plaintiff and Dilek in connection with that agreement.

In February 2012, plaintiff, on behalf of decedent’s estate, commenced this action against the DR&A defendants and the defendants-tenants,[FN*] asserting two causes of action—namely, legal malpractice (against the DR&A defendants) and breach of contract (against the DR&A defendants and the defendants-tenants).

As to the legal malpractice claim, the complaint alleged that DR&A breached its duty to the estate when it failed to inform the estate that there was a retainer agreement and that the retainer agreement contained an express agreement among the tenants to “share equally” in any settlement proceeds. Likewise, the complaint alleged that DR&A breached its duty to the estate by failing to inform it that the retainer agreement explicitly recognized decedent’s right to receive the two shares of the settlement proceeds based on his occupancy of two apartments. Thus, plaintiff concluded, DR&A committed legal malpractice when it failed to advise plaintiff of the estate’s rights under the retainer and instead advised plaintiff to sign the settlement documents, thus forfeiting its right to settlement proceeds.”

“As to the breach of contract claim, the IAS court properly denied the motion to dismiss that claim. Of course, on a motion to dismiss under CPLR 3211 (a) (7), a court must determine whether the factual allegations taken as a whole manifest any cause of action cognizable at law (see Ackerman v 305 E. 40th Owners Corp., 189 AD2d 665, 666 [1st Dept 1993]).

Despite defendants-tenant’s arguments otherwise, the breach of contract cause of action is not defeated by the provisions of the Rent Stabilization Code. On the contrary, the breach of contract action against defendants-tenants rests upon plaintiff’s allegation that by the retainer agreement’s express terms, the tenants, including decedent, agreed to “pool” the money they received from the building owner—that is, to share equally in any settlement—and then pay to decedent two shares of the pooled money. Plaintiff asserts that to the extent the defendants-tenants failed to pay decedent his two shares under the retainer agreement, they are in breach of the retainer agreement, or have been unjustly enriched.

These allegations are directed specifically to defendants-tenants’ actions with respect to the money they actually received in the settlement with the building owner; this issue is separate from a tenant’s rights of succession under the Rent Stabilization Code. Whether or not the decedent had succession rights is not relevant to the allegations of the complaint at this stage of the litigation; the tenants had already received settlement money and, according to the complaint, had agreed to share it equally. Given the allegations in the complaint—namely, that defendants-tenants, contrary to their express agreement, did not share equally in the money they received in settlement, and were unjustly enriched—plaintiff has sufficiently stated a claim for breach of contract.

Likewise, there is no merit to DR&A’s argument on appeal that for the purposes of the breach of contract claim, the estate was not a signatory to the retainer agreement and therefore cannot assert decedent’s rights under that agreement. Nor is there any merit to DR&A’s argument on appeal that the estate lacks standing to assert a malpractice claim against it. On the contrary, the estate stepped into decedent’s shoes and indeed, specifically authorized DR&A to represent the estate’s interests under the retainer agreement (see generally Estate of Schneider v Finmann, 15 NY3d 306 [2010]).

DR&A makes a similarly unavailing argument that the estate’s waiver of rights to decedent’s apartment operates as a binding judicial admission and a complete bar to the action. A party asserting a waiver of rights has the burden of establishing that the purported waiver constituted an intentional, voluntary relinquishment of a known right (see Jefpaul Garage Corp. v Presbyterian Hosp. in City of N.Y., 61 NY2d 442, 446 [1984]; White v Church of Our Lady of Sorrows, 255 AD2d 109 [1st Dept 1998]). Here, plaintiff alleges that DR&A never informed it of the retainer agreement’s existence and that, had plaintiff known of the agreement, he would not have consented to a transfer of its rights to Dilek. In light of these allegations, DR&A has not met its burden on its waiver defense.

Turning now to the legal malpractice claim, we find that the motion court properly allowed the cause of action for legal malpractice to proceed. A viable claim for legal malpractice requires that a complaint allege “ ’the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages’ ” (O’Callaghan v Brunelle, 84 AD3d 581, 582 [1st Dept 2011], lv denied 18 NY3d 804 [2012], quoting Leder v Spiegel, 31 AD3d 266, 267 [2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]). Here, the logic for the [*4]legal malpractice cause of action is similar to the logic in sustaining the breach of contract claim: whether decedent had rights under the Rent Stabilization Code is beside the point for purposes of the pleadings here. The relevant issue is not whether decedent had rights to the rent-stabilized apartment but whether decedent had rights to his two shares under the retainer agreement. Indeed, plaintiff does not argue that but for DR&A’s negligence, the estate would have prevailed in the article 78 proceeding; he argues that DR&A failed to tell him about the existence of the retainer agreement and to make sure that the estate received the settlement monies to which it was entitled under the settlement agreement.”

First words out of CLE lecturers in legal malpractice settings is “Don’t sue for fees!”  Reason? Legal malpractice counterclaims.  Tarshis & Hammerman, LLP v Hartig  2016 NY Slip Op  50393(U) Decided on March 18, 2016  Appellate Term, Second Department is a prime example. (Disclosure:  Both of the plaintiff attorneys were Kings County ADAs as was I at the time)

Mother retains plaintiff law firm to defend her son in a criminal matter.  They charge $10,000 up to trial, a fairly typical fee.  They defend, and one presumes that he was still convicted (pled guilty?).  Mother paid $ 5000 to start and then would not pay the balance.  Plaintiffs got their $ 5000 but had to go through a lot of telephone calls, a summons and complaint in Civil Court, a bench trial, and an appeal to the Appellate Term.  Was that worth $ 5000?  They had to hear the mother’s grief, have her call them minimally knowledgeable about criminal law, and the such.  They may even have trouble collecting.

From the decision:  “As a matter of public policy, courts pay particular attention to fee arrangements between attorneys and their clients (see Jacobson v Sassower, 66 NY2d 991, 993 [1985]), and the reasonableness of attorney’s fees is always subject to court scrutiny (see Matter of Bizar & Martin v U.S. Ice Cream Corp., 228 AD2d 588 [1996]).

The retainer agreement signed by defendant set forth “the scope of the representation and [*2]the basis or rate of the fee and expenses for which the client will be responsible” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.5 [b]), i.e., that defendant would be responsible for paying plaintiff the sum of $10,000, which would cover any legal services rendered by plaintiff in the criminal matter up until trial. The agreement was not ambiguous, and plaintiff demonstrated that substantial legal services had been rendered in the criminal matter resulting in a disposition before trial. In light of Hammerman’s testimony regarding the work he had performed, the nature of the issues involved in the case, the skill required to handle those issues and the results obtained (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.5 [a]), we find that the amount charged was reasonable. In view of the foregoing, the Civil Court did not err in awarding plaintiff the remaining balance due under the retainer agreement and in dismissing defendant’s counterclaims.

Although defendant contends that she was not able to adequately defend herself at trial, the record indicates the contrary. While she admits that she did not ask the court for an adjournment, she argues that, since she is not an attorney, she is entitled to a new trial. Her status as a self-represented litigant, however, does not entitle her to greater rights than any other litigant (see Roundtree v Singh, 143 AD2d 995 [1988]).”