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”). ”

 

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 is an unusual decision in the immigration – legal malpractice filed.  First, there are a number of interesting details that come from ICE and support plaintiff’s case, details which are rarely in the hand of Plaintiff.  Second, it covers not only the liability aspect of legal malpractice, but also the question of successor counsel, in this case plaintiff herself.

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. In 1995, plaintiff got her nursing license and divorced her first husband. She married / Calbert White (White), a U.S. citizen, in 1997. They later had a child together. In late 1997, a Form 1-130 petition on plaintiffs behalf was approved, after previously being denied.’ She took no further action on her immigration status until January 10, 2011, when she retained defendants. She wanted to settle her immigration status, bec~ause her 1991 deportation order was never rescinded. Defendants’ efforts were unsuccessful. Plaintiff was arrested on February 13, 2012, incarcerated until April 3, 2012, then deported. Shortly before she was deported, she retained Cella & Associates, LLC (Cella) to replace defendants. White continued his efforts on plaintiffs behalf, working with Cella. After almost two years in Belize, plaintiff received her Alien Registration Receipt Card (Green Card), and returned to the United States. The instant action commenced on January 23, 2015, with the filing of a complaint asserting a cause of action for legal malpractice.”

“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. , The complaint states that defendants proclaimed their competence “in immigration, visas and citizenship” on their web site. Complaint, ,-i 26. Fountain, who was principally responsible for plaintiffs case, was cited on the web site as particularly expert: “In his years representing immigrants, he has not lost’!- case. His successes have included complicated cases of asylum, waivers, hardship and naturalization.” Id. Fountain allegedly advised plaintiff that resolution of her case would take about four months. Id., ,-i 31. He had plaintiff take a medical examination, arranged for her and White to have a psychological assessment, and to complete several government forms. Defendants provide a set of documents and materials that appear to be a complete or near-complete package for submission to the immigration authorities on plaintiffs behalf. Fountain aff, exhibit C. All are dated in early June 2011. 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. ”

“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”). ”

 

More and more cases are resolved by summary judgment; the number of trials has plummeted over the past 15 years.  Practitioners have always given strong consideration to summary judgment motions, and must consider all arguments that can be made.  Here, in Pedote v Kelly  January 28, 2015  2015 NY Slip Op 00737 [124 AD3d 855] Appellate Division, Second Department the stakes are apparent:

“Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the defendant’s motion which was for summary judgment dismissing the complaint, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof granting the plaintiffs’ cross motion for leave to amend the complaint, and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, with costs to the defendant.

The defendant attorney represented the plaintiffs in an action against the owner of a manufactured home park and in eviction proceedings. The plaintiffs commenced this action to recover damages for legal malpractice, alleging, inter alia, that the defendant failed to file a timely notice of appeal from an order adverse to them, failed to comply with discovery, and failed to communicate to them a settlement offer. The defendant moved for summary judgment dismissing the complaint and for the imposition of sanctions pursuant to 22 NYCRR 130-1.1 (a), and the plaintiffs cross-moved to amend the complaint. The Supreme Court denied the defendant’s motion and granted the plaintiffs’ cross motion.

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the breach of such duty was the proximate cause of the plaintiff’s damages” (Portilla v Law Offs. of Arcia & Flanagan, 112 AD3d 901, 901 [2013]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Soliman v O’Connor, McGuinness, Conte, Doyle & Oleson, 118 AD3d 866, 867 [2014]). “To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice” (Scartozzi v Potruch, 72 AD3d 787, 789-790 [2010]; see Biberaj v Acocella, 120 AD3d 1285, 1286 [2014]).

[*2] Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not fail to exercise the skill and knowledge commonly possessed by a member of the legal profession. In that respect, the defendant demonstrated that he filed a timely notice of appeal from an order adverse to the plaintiffs, that the failure to comply with discovery was the result of the plaintiffs’ decision to retain a different attorney and concomitant failure to cooperate with him, and that no settlement offer was ever communicated to him. In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint (see Guerrera v Zysk, 119 AD3d 647, 648 [2014]; Soliman v O’Connor, McGuinness, Conte, Doyle & Oleson, 118 AD3d 866 [2014]).”

Of all the fields of law, matrimonial law ranks high in the consumer dissatisfaction index.  There are often disparities of income which leads to disparity of representation of the less-monied spouse.  A frequent complaint about matrimonial attorneys concerns the ease with which they enter and leave cases, often on the eve of trial.  Clients often relate that matrimonial attorneys make large financial demands at times where they have strong leverage.

In this pro-se matrimonial case, summary judgment was awarded to the attorneys.  Schiff v Sallah Law Firm, P.C.  2015 NY Slip Op 03820 [128 AD3d 668]  May 6, 2015
Appellate Division, Second Department gives none of the background facts, but one may surmise that the pro-se plaintiff felt cornered into settlement of a divorce and turned on her attorneys right after.

“The plaintiff retained the defendants Donald R. Sallah and Sallah Law Firm, P.C. (hereinafter the law firm), to represent her in a divorce action commenced by her former husband. The divorce action was settled by a stipulation. The plaintiff thereafter commenced this action against the law firm, Donald R. Sallah, Dean J. Sallah, Patrick M. Kerr, Theresa Hansen, and Francine J. Zecca, alleging that they had committed legal malpractice. In an order dated July 31, 2009, the Supreme Court granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against Hansen. After certain discovery was conducted, the remaining defendants (hereinafter collectively the Sallah defendants) moved for summary judgment dismissing the complaint insofar as asserted against them.

“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 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756 [2014]). “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 757; Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d 403 [2008]).

[*2] 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 statute of limitations for professional malpractice (other than medical malpractice) is three years.  What happens when further claims are added to a timely case, and defendants argue that these claims are time-barred?  Hustedt Chevrolet, Inc. v Jones, Little & Co.  2015 NY Slip Op 04611 [129 AD3d 669]  June 3, 2015  Appellate Division, Second Department gives us an idea.  In Hustedt, plaintiffs wished to supplement the cause of action for accounting malpractice.  The Court eventually said no.  Here is the reasoning:

“The plaintiffs moved pursuant to CPLR 3025 (b), inter alia, for leave to amend their first amended complaint to supplement the cause of action to recover damages for accounting malpractice. It is undisputed that the plaintiffs’ proposed supplemental claims of accounting malpractice were time-barred (see CPLR 214 [6]). The plaintiffs, however, contend that these proposed supplemental claims relate back to the allegations contained in the accounting malpractice cause of action in the first amended complaint. Contrary to that contention, the allegations in the first amended complaint gave no notice of the facts, transactions, and occurrences giving rise to the proposed supplemental claims of accounting malpractice and thus, the relation-back doctrine does not apply (see CPLR 203 [f]; Fisher v Giuca, 69 AD3d 671, 673 [2010]; Pendleton v City of New York, 44 AD3d 733, 736 [2007]; Sabella v Vaccarino, 263 AD2d 451, 452 [1999]; Bergman v Indemnity Ins. Co. of N. Am., 232 AD2d 271 [1996]; Smith v Bessen, 161 AD2d 847, 849 [1990]; Alpert v Shea Gould Climenko & Casey, 160 AD2d 67, 72-73 [1990]). The plaintiffs’ remaining contentions are without merit. Therefore, the Supreme Court properly denied that branch of their motion pursuant to CPLR 3025 (b) which was for leave to amend the first amended complaint to supplement the cause of action to recover damages for accounting malpractice.”

In the distant past, breach of contract cases against attorneys carried a 6 year statute of limitations, but that all ended long ago.  A claim of fraud is also due a 6 year statute of limitations and may be rewarded by treble damages.  Clients often ask whether a claim can be made against the attorney for fraud in addition to one for legal malpractice. Caravello v One Mgt. Group, LLC  2015 NY Slip   Op 07000  Decided on September 30, 2015  Appellate Division, Second Department is one case where the fraud claim was for matters extrinsic to that of the legal malpractice.

“The complaint alleges that the defendants acted in concert, as part of a mortgage foreclosure rescue scheme, to deprive the plaintiffs of the net proceeds of the sale of their home at a closing which took place in February 2008. The defendant Elena R. Gelman was the attorney who represented the plaintiffs at the closing. The plaintiffs asserted causes of action against Gelman alleging, inter alia, legal malpractice and fraud. Gelman moved, inter alia, pursuant to CPLR 3211(a)(7) to dismiss the sixth cause of action, which alleged fraud, insofar as asserted against her, and so much of the seventh cause of action as alleged fraud insofar as asserted against her, or in the alternative, pursuant to CPLR 3212 for summary judgment dismissing the complaint insofar as asserted against her. The Supreme Court denied those branches of Gelman’s motion.

The Supreme Court properly denied those branches of Gelman’s motion which were pursuant to CPLR 3211(a)(7) to dismiss the sixth cause of action insofar as asserted against her and so much of the seventh cause of action as alleged fraud insofar as asserted against her. On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the pleading is afforded a liberal construction and the court must give the plaintiff “the benefit of every possible favorable inference, accept the facts alleged in the complaint as true, and determine only whether the facts as alleged fit within any cognizable legal theory” (High Tides, LLC v DeMichele, 88 AD3d 954, 956 [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88; McDonnell v Bradley, 109 AD3d 592, 593).

To state a cause of action sounding in fraud, a plaintiff must allege that “(1) the defendant made a representation or a material omission of fact which was false and the defendant knew to be false, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely [*2]upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury” (McDonnell v Bradley, 109 AD3d at 592-593 [internal quotation marks omitted]; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559; Pace v Raisman & Assoc., Esqs., LLP, 95 AD3d 1185, 1188-1189). To plead a cause of action to recover damages for aiding and abetting fraud, the complaint “must allege the existence of [the] underlying fraud, knowledge of the fraud by the aider and abettor, and substantial assistance by the aider and abettor in the achievement of the fraud” (Winkler v Battery Trading, Inc., 89 AD3d 1016, 1017). Moreover, pursuant to CPLR 3016(b), where a cause of action is based upon fraud or aiding and abetting fraud, the “circumstances constituting the wrong” must be “stated in detail.”

In this case, the complaint, in both the sixth and seventh causes of action, incorporated all prior allegations made therein. Viewing all of the allegations in the complaint as true and resolving all inferences in favor of the plaintiffs, we find that the Supreme Court properly determined that the complaint adequately stated causes of action against Gelman sounding in fraud and aiding and abetting fraud (see Goldson v Walker, 65 AD3d 1084, 1084-1085). The allegations adequately informed Gelman of the “complained-of incidents” (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d at 559; see Pace v Raisman & Assoc., Esqs., LLP, 95 AD3d at 1189).”

Today’s New York Law Journal has an interesting article which discusses the Pre- and Post-Amalfitano v. Rosenberg status of Judiciary Law § 487 cases.  The conclusion of Herrington and Miller is that JL § 487 cases are on the rise, and courts are less willing to dismiss them at the beginning of the case.  They were kind enough to cite our NYLJ article on Judiciary Law § 487 which appeared there on September 25, 2014.

From their article: “Although cases and success rates for claims invoking the attorney misconduct statute, N.Y. Judiciary Law §487, have risen—even doubled—over the past five years, there appears to be no change in the severity of misconduct required for an actionable claim. Given the clarification in 2009’s seminal Amalfitano v. Rosenberg, 903 N.E.2d 265, 266 (N.Y. 2009) that even attempted deceit was actionable, the post-Amalfitano consistency in the severity standard is arguably surprising and provides some comfort. It appears, keeping with the history of §487, that New York jurists will properly allow these claims to survive motions to dismiss and proceed to discovery only in true outlier cases. What could otherwise be inconsistent with the advocate’s duty to zealously advocate for her client is properly reserved for these circumstances.
In New York, an attorney who intentionally deceives a court or party during a judicial proceeding, and causes injury by that action, may be guilty of a misdemeanor, subject to penal law punishments, and liable for treble damages. N.Y. Jud. Law §487 (McKinney 2005).
Section 487 has been on the books for almost two centuries. See Amalfitano v. Rosenberg, 428 F.Supp.2d 196, 210 (S.D.N.Y. 2006), aff’d 572 F.3d 91 (2d Cir. 2009) (tracing the statute’s origin to the 1836 Revised Statutes of New York Sections 69 and 70, but noting the statute in its current form was enacted in 1965). The past five years have seen an increase both in the number of filings and the likelihood of Section 487 claims to survive motions to dismiss.”

“Commentators predicted that, as a result of the Amalfitano decision, plaintiffs would likely prevail with their Section 487 claims where they had not before.1 An (admittedly limited) empirical analysis shows these prognostications to have been correct. We examined 25 cases in both the pre-and post Amalfitano era. Both the rate of Section 487 filings and the ability of Section 487 plaintiffs to get past the pleadings stage appear to have increased markedly post-Amalfitano. Attorneys litigating in New York state and federal courts would be well-advised to keep Section 487 risk in mind both in litigating and settling cases where a vengeful opponent has a powerful tool to switch targets from their opponent to its counsel.”

Only clients may sue their attorney in legal malpractice.  It really does not matter (so much) whether the attorney made a mistake that hurt you.  What matters is whether you (and that means you, not your father) hired the attorney.  So, beneficiaries to estates that don’t get what they should can rarely sue the attorney who drew up the papers.

As an example, Rhodes v Honigman  2015 NY Slip Op 06907  Decided on September 23, 2015  Appellate Division, Second Department shows us that daughters who did not get the trust that their father intended for them may not sue the attorney who drew up the papers.  This is true even though the papers allowed their mother to step in between and divert the money to herself.

“In July 2007, the decedent and his wife retained the legal services of the defendant for estate planning purposes. On November 19, 2007, the decedent executed a revocable living trust (hereinafter the Trust), the terms of which included specific directives as to the proportional distribution of assets upon his and his wife’s respective deaths, and identified the wife as trustee and named one of the daughters as a successor trustee upon the happening of certain events. The Trust, which was prepared by the defendant, provided that, upon the decedent’s death, the remaining principal and accumulated income would be held in trust for the benefit of the decedent’s wife and that, upon his wife’s death, the remainder would be distributed in prescribed amounts to various named charities, and to the decedent’s daughters by a previous marriage, with two of the daughters each receiving a designated percentage, and another daughter receiving a specific sum of $25,000. The decedent died on July 15, 2009. Certain amendments to the Trust, executed shortly before the decedent’s death, are the subject of litigation in a proceeding that was pending in Surrogate’s Court, Nassau County, under File No. 357224, at the time this appeal was perfected.

The plaintiffs alleged that the defendant committed legal malpractice in his drafting of the Trust by providing that the wife would be a cotrustee of the Trust, whereby she would have the power to transfer all or part of the principal to herself, thereby divesting the decedent’s daughters of their dispositions.

The Supreme Court properly granted those branches of the defendant’s motion pursuant to CPLR 3211(a) which were to dismiss the causes of action asserted by the decedent’s three daughters in their individual capacities for lack of standing. Lack of privity with an estate planning attorney is a bar against a beneficiary’s claims of legal malpractice against that attorney [*2]absent fraud, collusion, malicious acts, or other special circumstances (see Estate of Schneider v Finmann, 15 NY3d 306, 310), none of which are alleged in this case.”

Kerley v Kerley  2015 NY Slip Op 06891  Decided on September 23, 2015   Appellate Division, Second Department is a tragic story.  What the Court portrays as a good mom, and a troubled dad ends in divorce and financial ruin.  Father blew through $1 Million and was in drug rehab, was a gambler and when it all started to end, wanted to sue the kid’s lawyer for legal malpractice.  How did that come up?

“The parties were married on August 14, 1993, and have three children in common. [*2]The first was born in 1998, and the second and third, twins, were born in 2001. During the marriage, the defendant worked as an account executive for a television network and consistently earned substantially more than the plaintiff, who worked as a public school teacher. The defendant earned $270,965.01 in 2010 and $448,388.99 in 2011, while the plaintiff earned $125,960.80 and $157,868.00 in each of those years. In April 2009, the plaintiff commenced this matrimonial action seeking, among other things, child support and equitable distribution. Following a nonjury trial, the Supreme Court, inter alia, awarded the plaintiff 70% of the marital assets, and the defendant 30%, upon consideration of the statutory factors enumerated in Domestic Relations Law § 236(B)(5)(d), including a finding that the defendant wastefully dissipated marital assets and awarded counsel fees to the plaintiff in the sum of $80,000.

The Supreme Court found the defendant’s testimony to be “devoid of any credibility, unsupportable, and utterly unreliable.” The assessment of credibility is a matter committed to the trial court’s sound discretion and deference is owed to the trial court’s credibility determinations (see Scher v Scher, 91 AD3d 842, 847; Papovitch v Papovitch, 84 AD3d 1045, 1046; Ivani v Ivani, 303 AD2d 639, 640).

Contrary to the defendant’s contentions, the Supreme Court providently exercised its discretion in making its determination as to equitable distribution (see DeGroat v DeGroat, 84 AD3d 1012, 1012;Alper v Alper, 77 AD3d 694, 695). The Supreme Court considered the various statutory factors enumerated in Domestic Relations Law § 236(B)(5)(d), which include, inter alia, the income and property of each party at the time of marriage and at the time of the commencement of the action, the duration of the marriage, the age and health of both parties, any award of maintenance, the probable future financial circumstances of each party, and the wasteful dissipation of assets by either spouse (see Holterman v Holterman, 3 NY3d 1, 7). The court identified as factors in its decision the plaintiff’s health problems, that the defendant is in good health but suffers from substance abuse, that there is a substantial disparity in income between the parties, that the defendant has depleted marital assets, and that the parties have almost no liquid assets. We also note that no maintenance was awarded to the plaintiff in this case.

The record supports the Supreme Court’s determination that the defendant wastefully dissipated substantial sums of money through his gambling and drug activity (see O’Sullivan v O’Sullivan, 247 AD2d 597, 597; Conceicao v Conceicao, 203 AD2d 877, 879; Wilner v Wilner, 192 AD2d 524, 525). Although the precise amount of marital funds dissipated through the defendant’s activities cannot be determined, the evidence presented at trial reveals, inter alia, that the defendant was in and out of rehabilitation facilities for substance abuse, both inpatient and outpatient, from mid-2009 through the time of trial. The defendant also acknowledged taking frequent trips to gambling casinos. The testimony also revealed that the defendant removed approximately $90,000 from the parties’ Fidelity investment account, which was in the defendant’s sole name but was marital property, and that, between 2009 and 2011, he also took over $90,000 out of an individual retirement account, and $30,000 from his Chase bank account, without being able to account for how he used the majority of such funds. In addition, despite the fact that the defendant earned over $1,000,000 from 2009 to 2012, by the time of the trial, as the Supreme Court noted, the parties were left with almost no liquid assets. Thus, the Supreme Court did not err in awarding a greater share of the remaining marital assets to the plaintiff (see Burnett v Burnett, 101 AD3d 1417, 1419; Franco v Franco, 97 AD3d 785, 786; Kaur v Singh, 44 AD3d 622, 623).

ontrary to the contention of the attorney for the children, under the circumstances of this case, the defendant’s arguments regarding the denial of those branches of his motion which were to disqualify the attorney for the children and disallow her attorney’s fee may properly be reviewed on appeal. However, the Supreme Court properly denied those branches of the defendant’s motion. The attorney for the child correctly contends, as she did in her papers filed in opposition to the defendant’s motion, that the defendant lacks standing to seek disqualification and disallowance of her fee on the ground of legal malpractice (see Drummond v Drummond, 291 AD2d 368, 369; see also Bluntt v O’Connor, 291 AD2d 106). Furthermore, even if the defendant had standing, the record supports the Supreme Court’s conclusion that his arguments are without merit (see Drummond v Drummond, 291 AD2d at 369).”