Clients suing pro-se took two appeals from the denial of a motion for a default judgment.  Second appeal, which ate up quite a bit of time was dismissed, since one may not appeal from denial of a motion to re-argue.  Sometimes, even when you are suing an attorney, it just makes sense to hire an attorney?

Executor of N.Y. Estate of Celia Kates v Pressly  2015 NY Slip Op 07469  Decided on October 14, 2015  Appellate Division, Second Department tells us that appeals have a number of unique rules.

“In an action to recover damages for a violation of Judiciary Law § 487, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Diamond, J.), dated June 7, 2013, as denied their second motion, in effect, for leave to reargue their prior motion for the entry of a default judgment against the defendants, which was denied in an order of the same court dated August 23, 2010.

DECISION & ORDER

Cross motion by the defendants, inter alia, to dismiss the appeal on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated June 24, 2014, that branch of the cross motion which is to dismiss the appeal was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof, and the cross motion was otherwise denied.

Upon the papers filed in support of the cross motion, the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the branch of the cross motion which is to dismiss the appeal is granted; and it is further,  ORDERED that the appeal is dismissed, with costs.

The appeal must be dismissed, as no appeal lies from an order denying reargument (see Emigrant Mtge. Co., Inc. v Thevenin, 127 AD3d 919; Basile v Wiggs, 117 AD3d 766, 766; Naso v Naso, 102 AD3d 755, 756; Rosenfeld v Baker, 78 AD3d 810, 811; Peralta v All Weather Tire Sales & Serv., Inc., 58 AD3d 823, 823).”

As is true in a large percentage of legal malpractice cases, there is strong evidence that the attorneys departed from good and accepted practice (a “mistake”).  Here, in Iannucci v Kucker & Bruh, LLP   2015 NY Slip Op 51490(U)   Decided on October 7, 2015   Supreme Court, Kings County
Rivera, J., there are indications that Plaintiff could make out a case with discernible departures by the attorney.  However, this case, as do so many others, founders on proving that but for these mistakes there would have been a better and more reasonable economic outcome for Plaintiffs.

“The verified complaint asserts the following salient facts, among others. In September 2002, Team Obsolete Promotions, Inc., which is owned by Robert Iannucci and Sonia Ewers, contracted with The Garden City Company (hereinafter GCC) to purchase 325 Gold Street, Brooklyn, New York (hereinafter the subject property).

On November 20, 2002, the closing date of the sale, GCC executed an assignment of all its interest in past due rent and all claims against past or future tenants of the subject property to Robert Iannucci and Sonia Ewers. On that date, the subject property was zoned for commercial and not residential use and had three of its seven floors illegally occupied by individuals for residential purposes. On that date, GCC already had ongoing eviction proceedings pending against the illegal residents of the subject property.

Sometime prior to November 20, 2002, the plaintiffs hired the defendants, who had been working for GCC at an hourly rate, to continue their ongoing eviction litigation for the subject property. The defendants Saul Bruh and Andrew Bittens are lawyers and partners in the law firm of Kucker and Bruh, LLP.

The first cause of action is for legal malpractice. The claim is based on the alleged failure to take prompt action when the defendants learned that several tenants had abandoned the premises or had divided their leaseholds without the consent of the owners. In addition, when the defendants became aware that the City of New York was in the process of changing the zoning status of the building and failed to take swift action. Plaintiffs’ claim that as a result of defendants’ dilatory behavior they lost substantial rental income.

The second cause of action is for an accounting and a refund. This claim is based on defendants’ alleged over-billing for the legal work it performed.”

“Plaintiff seeks to hold the defendants responsible for the rental income that it lost by the inability to lease the units that were illegally occupied by the individuals who were the subject of pending eviction proceeding. Plaintiff’s claim is that the pace of the defendants prosecution of evicting the illegal occupants resulted in the loss of the rental value of the those spaces. Plaintiff does not allege that tenants seeking to rent the illegally occupied units were known or actually existed prior to the eviction of the units in question.

The movants do not dispute that they were hired to represent the interest of the plaintiff in evicting the illegal tenants of the subject property. Nor do they dispute that the legal representation was at an hourly rate pursuant to an oral agreement. The thrust of their motion is [*2]that plaintiff is unable to prove that their legal representation proximately caused the plaintiff any ascertainable damage.

Indeed, plaintiff’s claim of the loss of rental income from potential future tenants is based on speculation. Conclusory allegations of damage based on speculation are insufficient to support a legal malpractice claim (see Siwiec v Rawlins, 103 AD3d 703 [2nd Dept 2013]; see also, Bua v Purcell & Ingrao, P.C., 99 AD3d 843 [2nd Dept 2012]).

The movants have made a prima facie showing that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action (Duque v Perez, 95 AD3d 937 [2nd Dept 2012] thus shifting the burden to the plaintiff to raise a triable issue of fact.

Plaintiff’s voluminous opposition papers merely repeat and reassert the same conclusory and speculative claims of lost rental income purportedly due to the movants allegedly slow prosecution of eviction proceedings. Plaintiff’s opposition papers do not raise a triable issue of fact. Accordingly, plaintiff’s first cause of action for legal malpractice is dismissed.”

This is a fairly simple and straightforward legal malpractice case.  Worker falls from a ladder while working on an electrical light during construction.  Law firm fails to sue the owner, which in this case is the Dormitory Authority of the State of NY.  Nevertheless, summary judgment fails for both sides.  Here is the story in Ferrigno v Jaghab, Jaghab & Jaghab, P.C. 2015 NY Slip Op 51491(U)  Decided on October 7, 2015  Supreme Court, Kings County Rivera, J.

“The complaint sets forth forty-five allegations of fact in support of three causes of action. The first and second causes of action sound in legal malpractice. The third cause of action is for breach of contract. The summons and complaint allege that on August 10, 2009, plaintiff suffered injuries when he fell from an A-frame ladder after sustaining an electrical shock. At the time of the incident plaintiff was performing repairs to a light fixture at Medgar Evers College Prep School (hereafter MECPS), located at 1186 Carroll St., Brooklyn, New York (hereafter “the premises”). The premises is owned by the Dormitory Authority of the State of New York (hereafter DASNY). Prior to October 21, 2009, plaintiff retained Jaghab, P.C. to pursue an action to recover damages for those personal injuries.

The crux of plaintiff’s claim is that the defendants failed to include DASNY in the notice of claim as a defendant and therefore failed to bring a cause of action against a liable party. Plaintiff alleges that, had the defendants brought an action against DASNY, he would have prevailed under an action pursuant to Labor Law § 200, 240 (1), and 241(6).”

“Plaintiff relies solely on the fact that defendants failed to bring a claim against DASNY under Labor Law § 240 (1) in support of the allegation that defendants breached their duty to him. The following factors are not controverted. Defendants did not include DASNY in the notice of claim. Defendants failed to bring a claim against DASNY on plaintiff’s behalf. DASNY owned the premises at the time of plaintiff’s accident. Plaintiff is precluded from bringing an action against DASNY due to the failure to include DASNY in the notice of claim.

Plaintiff must establish that DASNY was a liable party and that he would have prevailed on the underlying claim against DASNY under Labor Law § 240 (1) to prevail on the motion.

In support of the motion the plaintiff submitted his deposition. Plaintiff testified that he was engaged in repairing a lighting fixture when he received an electric shock and [*5]fell from an A-frame ladder. This establishes, prima facie, that plaintiff was within the protective ambit of Labor Law § 240(1) at the time of the accident (see Eisenstein v Board of Mgrs. Of Oaks at La Tourette Condominium Sections I-IV, 43 AD3d 987, 842 NYS2d 72). As mentioned above, Labor Law § 240 (1) creates a nondelegable duty and absolute liability upon owners for failure to provide proper safety devices for workers subject to elevation-related risks (see Labor Law § 240 [1]). Accordingly, plaintiff meets his prima facie burden on legal malpractice by establishing that the defendants failed to sue DASNY when they were the owners of the premises where the accident occurred and that plaintiff’s activity was work contemplated within the protective ambit of Labor Law § 240 (1).

The burden now shifts to the defendant to come forward with sufficient evidence to raise a triable issue of fact (see Ernest v Pleasantville Union Free School Dist., 28 AD3d 419, 811 NYS2d 573 [2nd Dept 2006]). In opposition to plaintiff’s motion for summary judgment, defendants raise a triable issue of fact regarding whether plaintiff was engaged in an activity protected by Labor Law § 240 (1). Defendants submit the notice of claim to the City of New York. The notice of claim is signed and sworn to by the plaintiff as well as notarized. In pertinent part plaintiff states therein that he was “changing an overhead ballast” at the time of the accident. “[T]he task of replacing a ballast in a fluorescent light fixture falls within the category of routine maintenance” (Deoki v Abner Props. Co., 48 AD3d 510, 510). Work that “involve[s] replacing components that require replacement in the course of normal wear and tear… constitute[s] routine maintenance and not ‘repairing’ or any of the other enumerated activities” (Esposito v New York City Indus. Development Agency, 1 NY3d 526) and, therefore, is not protected activity under Labor Law § 240 (1).

As the motion papers contain different versions of the accident a triable issue of fact exists as to whether the plaintiff was engaged in work covered by Labor Law § 240 (1). Accordingly, plaintiff’s motion for summary judgment must be denied on these grounds.”

Fleisher v Ballon Stoll Bader & Nadler, PC  2015 NY Slip Op 31855(U)  October 5, 2015 Supreme Court, New York County  Docket Number: 158302/2012  Judge: Joan M. Kenney is another iteration of how difficult it is to sue an estates (or in this case a Medicaid planning) attorney.  On its face, the case seems simple.  Attorney is hired by Mrs. F to help plan for her mother’s medicaid situation, and to do a will for Mrs. F.  Then Mrs. F pre-deceases her mother, and her insurance policy and a totten trust now endanger the mother’s medicaid planning.

“Mrs. Litchman was a recipient of Medicaid benefits. She was in a nursing home towards the end of her life. Plaintiff alleges that defendants failed to identify the Policy and CD as assets owned by Mrs. Fleisher that would have an impact and effect on Mrs. Lichtman’s eligibility for Medicaid benefits, and failed to plan Mrs. Fleisher’s estate in a way that would maximize the value of her assets for her heirs and beneficiaries. Plaintiff contends that Mrs. Lichtman cannot accept the payment from Unum as it might be subject to a Medicaid lien and disqualify her from eligibility for certain medicaid benefits. Plaintiff further alleges that the Policy and CD would have been conveyed to Mrs. Fleisher’s estate and would have ultimately passed to plaintiff as the residuary beneficiary if defendants had prevented the transfer of these assets to Mrs. Lichtman. ”

“Here, plaintiff David Fleisher is suing both individually and as the proposed executor and beneficiary of the Estate of Marilyn R. Lichtman, also known as Marilyn Lichtman Fleisher, deceased. Individually as a beneficiary of the estate, plaintiff is not entitled to bring a cause of action against defendant attorneys due to lack of privity. Plaintiff is, however, entitled to bring a cause of action against defendant attorneys as a personal representative of the estate. Plaintiff submits a copy of a decision dated December 9, 2014, in which the Honorable Diana A. Johnson stated that “letters testamentary shall issue to David Fleisher and Ruby Erkkila upon duly qualifying according to law.” (See Plaintiffs Exhibit F). Unfortunately, plaintiff failed to demonstrate that the “letters testamentary” were formally issued pursuant to the Surrogate’s decision. Plaintiff, as a “proposed executor” (as noted in the caption of this case) is not entitled to maintain this action without the letters testamentary.”

“Even if the plaintiff were allowed to bring this action against defendant once the proper letters testamentary were issues, plaintiff must plead and prove actual, ascertainable damages to the estate as a result of an attorney’s alleged malpractice. A complaint in a legal malpractice action will be dismissed pursuant to CPLR 3211 (a)(7) where “it fails to plead specific factual allegations demonstrating that, but for the … defendant’s alleged negligence … the plaintiff would not have incurred any damages” (Rudolfv Shayne, Dachs, Stanisci, Corker & Saucer, 8 NY3d 438, 441, 835 NYS2d 534, 867 NE2d 385). Proximate causation is a requisite element of a legal malpractice claim ·and it must be based on more than “mere speculation.” Mere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice (Giambrone v Bank of NY, 253 AD2d 786 [1998]). ”

“In opposition, plaintiff argues that Mrs. Fleisher’s estate was damaged in the amount of $216,798.04, due to defendants’ failure to properly advise Mrs. Fleisher to change the beneficiary of the life insurance policy and CD in order to maximize the value of the estate’s assets for the benefit of its beneficiaries. Plaintiff alleges that defendant attorneys were hired for the purpose of both estate planning and Medicaid planning for both Mrs. Fleisher and her mother. Plaintiff also claims that, pursuant to the retainer agreement, defendants were to advise on and effectuate transfers of assets in order to maximize the value of the estate and to preserve Ms. Lichtman’s eligibility for Medicaid benefits, but failed to do so, which resulted in the loss of $216, 798.04 in assets to the estate and its beneficiaries. In order to establish proximate cause in a legal malpractice action, plaintiff must demonstrate that “but for” the defendants’ negligence, Mrs. Fleisher would not have transferred any assets to her mother, and instead that these assets would have become part of the estate and ultimately reach plaintiff as the beneficiary. Here, plaintiff cannot prove that “but for” the defendants’ advice, or lack thereof, Mrs. Fleisher would have changed the named beneficiary on the CD and trust from her mother to plaintiff. Plaintiffs complaint merely alleges, in a conclusory fashion, that defendants’ deviation from “good and accepted” legal practices resulted in the estate being devalued in the amount of$216,000.00. Accordingly, the legal malpractice 6 [* 6] action must be dismissed. “

A successful criminal defense legal malpractice case is the rarest form of the species.  Meralla v Goldenberg  2015 NY Slip Op 01873 [126 AD3d 449]  March 5, 2015  Appellate Division, First Department  has everything that the criminal defendant needs.  As the Court of Appeals has repeatedly held, “In order to open the door for even a colorable claim of innocence, criminal defendants must free themselves of the conviction, for the conviction precludes those potential plaintiffs from asserting innocence in a civil suit . . . . Accrual occurs “when the claim becomes enforceable, i.e. when all elements of the tort can be truthfully alleged in the complaint” . . . .

It is only when the criminal proceeding has been terminated without a conviction that a plaintiff can assert innocence or at the very least a colorable claim thereof . . . . [A] criminal legal malpractice plaintiff cannot assert innocence while the criminal charges remain pending. Britt v. Legal Aid Soc’y, Inc., 95 N.Y.2d 443, 447-48, 741 N.E.2d 109, 112, 718 N.Y.S.2d 264, 267 (2000)

“In this legal malpractice action, plaintiff alleges that defendant attorney’s failure to move to sever plaintiff’s criminal trial from that of a codefendant, and to move to exclude certain evidence based on the collateral estoppel effect of a prior trial in which plaintiff was acquitted of a related crime, caused him to be convicted and incarcerated. Plaintiff served more than six years in prison before this Court overturned his conviction based on defendant’s ineffective assistance of counsel (People v Meralla, 228 AD2d 160 [1st Dept 1996], lv denied 88 NY2d 989 [1996]). After the prosecution determined that plaintiff could not be retried, he commenced this action to recover damages against defendant.”

“As this Court held on the appeal overturning plaintiff’s conviction, defendant’s delay in moving to exclude evidence based on collateral estoppel, and failure to seek a severance before the second trial, “amounted to fundamentally flawed, less than meaningful representation” and “substantially impaired the defense” (Meralla, 228 AD2d at 161). Accordingly, drawing all inferences in favor of plaintiff as the nonmoving party (see Ortega v Everest Realty LLC, 84 AD3d 542, 545 [1st Dept 2011]), an issue of fact exists as to whether defendant’s alleged negligence was the proximate cause of plaintiff’s alleged injuries (see Kaminsky v Herrick,[*2]Feinstein LLP, 59 AD3d 1, 9 [1st Dept 2008], lv denied 12 NY3d 715 [2009]). It cannot be said, as a matter of law, that the outcome of the matter would have been substantially the same even if defendant had made the motions before trial and in writing (see id.).”

We again look at Trapp-White v Fountain  2015 NY Slip Op 31835(U)  September 30, 2015
Supreme Court, New York County  Docket Number: 150719/2015  Judge: Donna M. Mills.

“Plaintiff is a native of Belize, residing in Suffolk County, New York. She entered the United States illegally in 1986, and soon thereafter the Immigration and Naturalization Service instituted deportation proceedings against her. On or about October 17, 1991, plaintiff was granted a voluntary departure from the United States. by May 17, 1992. By then, she had married a non-citizen, and she remained in the United States, allegedly because of her concern for her three young children, all born here. She had a fourth child in 1993, also born here. ”

“Plaintiffs legal malpractice claim is based primarily on defendants’ purported failure to file a motion to reopen her deportation order and to move for a stay of removal. While plaintiff was principally represented by Fountain, the complaint implicates Rothbell, his partner, and the Firm as being vicariously liable. Plaintiff claims that but for defendants’ negligence, she would not have been deported. ”

“Plaintiff alleges that, months after engaging him, Fountain “never provided her any information or update on the status of her case.” Complaint, il 33. She maintains that she “constantly e-mailed” Fountain about the progress of her case, but is now unable to produce any copies of such messages. She claims that, after her two years in Belize, she has “since forgotten the password to my e-mail account.” Trapp-White aff, il 16. Defendants offer no explanation or description of activity on plaintiffs case after June 2011 until plaintiffs arrest the following year. They acknowledge that “the motion to reopen [the Deportation order] was not filed.” Id. There is ample evidence of Fountain’s active attention to plaintiffs case once she was in jail. He sent an email to Marty Ryan (Ryan), Deputy Chief Counsel, Immigration and Customs Enforcement (ICE), on March 7, 2012, introducing plaintiffs case to Ryan, and asking ICE to join in a motion to reopen plaintiffs deportation order. Fountain affirmation, exhibit A at 9-10. Fountain labeled his message “Urgent,” and Ryan replied by email the same day. Ryan raised several questions, including did plaintiff “have any criminal issues,” and advised Fountain to proceed with a petition and application for relief, addressed to Jason Aguilar (Aguilar), Acting -Chief Counsel. Id. at 8-9. On March 8, 2012, the next day, Fountain submitted a collection of pertinent documents to Ryan and Aguilar, and informed them that plaintiff “confirmed that she has no criminal issues.” Id. at 8. Over the next few days, Fountain and Aguilar exchanged messages about White’s military service and plaintiffs five children. Id. at 5-7. On March 16, 2012, Fountain wrote to Aguilar that all of the children, ranging from age 11to21, live at home, have “a very strong relationship with their mother (as well as Mr. White, who has raised them as though they were his children),” and attend church regularly. Id. at 4-5. Aguilar’s next message, on March 17, 2012, apparently took Fountain by surprise. “I have information that her two sons were arrested and are currently charged with murder and gun trafficking. Why was this not brought to my attention?” Id. at 4. Fountain replied: “This is the first that I have heard of this!” Id. In fact, plaintiffs two adult sons were arrested on February 10, 2012, three days before plaintiffs arrest, the older on charges of sale of firearms, the younger on charges of murder, sale of a controlled substance, sale of firearms, and unauthorized use of a vehicle. In a follow up message to Aguilar, on March 17, 2012, Fountain, citing White as his source, claimed “that while the sons continued to have rooms at home and to have some clothes there, they were often out of the house and staying with their girlfriends or friends.” Id. at 3. Fountain further paraphrased White’s contention that “his relationship with them had been strained because they would not follow his rules.” Id. White, according to Fountain, also maintained that he learned of the arrests only after plaintiffs arrest, and he shielded her from the news for over a month. Id. ”

“Defendants contend that plaintiff cannot establish negligence in their representation, when they chose between reasonable courses of action. See Hand v Silberman, 15 AD3d 167, 167 (1st Dept 2005) (“Neither an error in judgment nor in choosing a reasonable course of action constitutes malpractice”). Defendants contend that “[p ]roceeding with the filing of the joint motion would have necessarily required plaintiff to disclose her current address and location, which could have exposed her location and led to her arrest and deportation.” Bruno affirmation, ,-i 21. However, nowhere do defendants identify the time, place or manner in which they conveyed this information to plaintiff. Defendants state that plaintiff “advised Attorney Fountain not to proceed with the filing of the motion for this very reason.” Id. She strongly disputes this. “Contrary to defendants’ claims, I specifically hired them to file these motions.” Trapp-White aff, ,-i 15. She asserts that “before I even retained Fountain, I knew that I would be required to disclose my address in order to obtain permanent lawful residence and that by doing so, I risked alerting authorities to my location and being deported.” Id. Defendants insist that “[t]here would be no other reason for Attorney Fountain to make sure all of the papers were prepared but then not to submit them, other than plaintiff, recognizing the risk associated with filing the joint motion, asked defendants not to do so.” Bruno aff, ~ 22. They fail to recognize that legal malpractice is an alternate explanation, as plaintiff asserts. While choosing among reasonable alternatives is a defense to a claim of legal malpractice, defendants fail to identify or describe the alternative that they choose after June 2011. It is not defendants’ conduct up to June 2011 that plaintiff complains of, but, rather, their purported inaction from June 2011 until her arrest in February 2012. They never state that plaintiffs alleged refusal to file a motion to reopen the deportation order for fear of exposure actually ended the matter. Nothing memorializes such an understanding. The issue of what legal advice and services defendants gave plaintiff remains unsettled, and warrants continuation of the action. Defendants do not announce what course of action they recommended to plaintiff after she assembled her package of materials, with their assistance, for submission to the immigration authorities. They intimate that they advised her that submission would have exposed her to arrest and deportation, but left the decision to her. See Bruno aff, ~ 22 (“plaintiff, recognizing the risk associated with filing the joint motion, asked defendants not to do so”). Yet, the inaction led to the same unwelcome results, arrest and deportation. ”

“Defendants also argue that Cella had l 0 days to file the motion to reopen plaintiffs deportation order, already drafted by defendants, and to move for a stay of removal. ,According to defendants, it was Cella’s failure to act that was the proximate cause of plaintiffs alleged damages,. Defendants had 14 months during which they represented plaintiff in order to avoid having her imprisoned and deported. Yet, they contend that Cella should have been able to accomplish that in 10 days, and that only Cella should be liable for plaintiffs damages. Balancing 10 days against 14 months may be an unreasonable comparison, but it is an issue that warrants continued examination by the court. The action shall not be dismissed on the basis of Cella’s succession in representing plaintiff. ”

“How a judge might have ruled on plaintiffs motion to reopen her order of deportation in 2011 is also purely speculative, even if it were filed with ICE cooperation. However, two-and-ahalf years later, plaintiff received favorable consideration by United States immigration authorities, apparently without the need for judicial intervention. Therefore, the question of what might have been cannot be decided at this time. The action shall continue. Lappin v Greenberg, 34 AD3d 277, 279 (1st Dept 2006) (“To survive a CP.LR 3211 [a] [7] preanswer dismissal motion, a pleading need only state allegations from which damages attributable to the defendant’s conduct may reasonably be inferred”). ”