What are fictitious profits, and how do they affect damages in accounting malpractice.  Accounting malpractice is akin to legal malpractice, especially in that economic damages are paramount.  Fictitious profits cannot serve as the source of actual damages.  So, in Delollis v Margolin, Winer & Evens, LLP  2014 NYSlipOp 06935  October 15, 2014  Appellate Division, Second Department the question of damages remains open.  “While damages may not be based solely on fictitious profits, the defendant failed to establish, as a matter of law, at this stage of the proceedings, that the plaintiffs’ claimed damages merely constituted fictitious profits or were speculative (see Hecht v Andover Assoc. Mgt. Corp., 114 AD3d 638 [2014]). Accordingly, the Supreme Court properly denied the defendant’s motion for partial summary judgment limiting the plaintiffs’ damages (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).”

From Hecht v Andover Assoc. Mgt. Corp.  114 AD3d 638 (2d Dept, 2014):   “Contrary to the plaintiff’s contention, Citrin Cooperman raised the issue of the measure of Andover’s damages before the Supreme Court. Further, damages may properly be limited on a motion to dismiss (see Howard S. v Lillian S., 14 NY3d 431, 437 [2010]; Sand v Chapin, 238 AD2d 862, 863 [1997]; Swersky v Dreyer & Traub, 219 AD2d 321, 328 [1996]; Crossland Sav. v Foxwood & S. Co., 202 AD2d 544, 546 [1994]). When a party seeks damages for lost profits, the profits may not be imaginary (see Kenford Co. v County of Erie, 67 NY2d 257, 261 [1986]; O’Neill v Warburg, Pincus & Co., 39 AD3d 281, 283 [2007]). It is undisputed that the profits reported by Madoff were completely imaginary. [*3]The fictitious profits never existed and, thus, Andover did not suffer any loss with respect to the fictitious sum (see Jacobson Family Invs., Inc. v National Union Fire Ins. Co. of Pittsburgh, PA, 102 AD3d 223, 233-234 [2012]). However, the Supreme Court did not merely determine that the plaintiff may not recover the amount of the fictitious profits, but specifically limited damages to the amount of Andover’s un-recouped investment. The plaintiff pleaded facts based on which other damages related to the payment of fees may be recoverable and thus, it was error for the Supreme Court to limit damages to the amount of Andover’s un-recouped investment.”

 

It’s not often that a civil litigant in State Court can wind up with the US Attorney and some of the bigger defense firms in NY arrayed against her.  However, Ms. Lipin seems to have angered State Supreme Court, the Appellate Division, and possibly US District Court too. Lipin v Danske Bank
2015 NY Slip Op 05896  Decided on July 7, 2015  Appellate Division, First Department has ended with her being muzzled.  No new lawsuits without court permission.

“Order, Supreme Court, New York County (Louis B. York, J.), entered June 24, 2014, which denied plaintiff’s motion for a default judgment against defendants in action number one [*2](index # 100807/13) on the ground that the court lacked jurisdiction due to removal of the action to federal court, and enjoined plaintiff from making additional motions in the action without the court’s consent, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 18, 2013, which denied another motion for a default judgment on the same ground, unanimously dismissed, without costs, as untimely taken. Appeal from order, same court and Justice, entered September 24, 2013, which denied plaintiff’s motion to reargue a motion for default judgment on the same ground, unanimously dismissed, without costs, as taken from a nonappealable paper. Order, Supreme Court, New York County (Louis B. York, J.) entered June 19, 2014, which denied plaintiff’s four motions for default judgments against defendants in action number two (index # 155308/13) also on the ground of lack of jurisdiction due to removal of the action to federal court, and also enjoined plaintiff from making additional motions in the action without the court’s consent, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered July 23, 2013, which denied another motion for default judgment on the same ground, unanimously dismissed, without costs, as untimely taken. Appeal from order, same court and Justice, entered September 25, 2013, which denied plaintiff’s motion to reargue her prior motion for default judgment on the same ground, unanimously dismissed, without costs, as taken from a nonappealable paper.

In these two related actions, the motion court properly denied plaintiff’s motions for default judgments on the basis of lack of jurisdiction. Once the underlying actions were removed to the United States District Court for the Southern District of New York by the filing of the notice of removal with the state court, the state court no longer had jurisdiction to rule on plaintiff’s motions (see 28 USC § 1446; Clayton v American Fedn. of Musicians, 243 AD2d 347 [1st Dept 1997]). The notice of removal was timely and properly filed (see 28 USC § 1446), and the District Court has original jurisdiction over claims alleging violations of federal statutes, as well as supplemental jurisdiction over the state claims, including the Judiciary Law

§ 487 claims, since they arose out of the same case or controversy (see 28 USC §§ 1331, 1367[A], 1441[a]; Eastern States Health & Welfare Fund v Philip Morris, Inc., 11 F Supp 2d 384, 388 [SDNY 1998]).

Furthermore, the court properly exercised its discretion in enjoining plaintiff from making any further motions in these actions without prior court approval given the frivolous motions she continued to file even after the action was removed to federal court, and after the motion court concluded that it lacked subject matter jurisdiction (see Bikman v 595 Broadway Assoc., 88 AD3d 455 [1st Dept 2011], lv denied 21 NY3d 856 [2013]; Jones v Maples, 286 AD2d 639 [1st Dept 2001], lv dismissed 97 NY2d 716 [2002]).”

Unjust enrichment is not unlike a utility infielder in baseball.  Its a nimble concept, ready to be applied and get in the game on short notice, and is willing to be place wherever it best serves the team.

 Comprehensive Mental Assessment & Med. Care, P.C. v Gusrae Kaplan Nusbaum, PLLC  2015 NY Slip Op 05904  Decided on July 8, 2015  Appellate Division, Second Department. In this serial legal malpractice case, the Appellate Division reinstated an unjust enrichment claim.  It is not often that a UE claim surfaces in a legal malpractice case.

“The Supreme Court also erred in granting that branch of GKN’s motion which was to dismiss the sixth cause of action, alleging unjust enrichment. “To prevail on a claim of unjust enrichment, a party must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered” (Citibank, N.A. v Walker, 12 AD3d 480, 481 [internal quotation marks omitted]; see Marini v Lombardo, 79 AD3d 932, 934; Cruz v McAneney, 31 AD3d 54, 59). The complaint alleged that the plaintiffs paid GKN large sums of money, which purportedly represented legal fees associated with the work being performed on the plaintiffs’ behalf. The complaint further alleged that, in light of the allegations of, among other things, legal malpractice, GKN had been unjustly enriched by those payments and GKN’s retention of that money violated “fundamental principals of justice, equity, and good conscience.” GKN did not address those allegations on its motion to dismiss, other than to claim lawful entitlement to the money as fees earned and billed. Accordingly, the Supreme Court erred in determining that the complaint failed to state a cause of action alleging unjust enrichment (see CPLR 3211[a][7]).”

 

 

 

What could be more Manhattanite than the combination of a Central Park South double apartment, a real estate legal proceeding, lots of money and legal malpractice?  Nothing that we can conjure.

Russo v Rozenholc  2015 NY Slip Op 06029  Decided on July 9, 2015  Appellate Division, First Department is about tenants who had a lovely setting on Central Park South, only to have it torn from under them.  What to do? Sue for their rights under the Rent Stabilization Law.  Here is the story.

“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 an 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.

A dispute later apparently arose between plaintiff and Dilek as to Dilek’s rights with respect to the apartment. Plaintiff and Dilek each had counsel, both of whom remained in communication with DR & A. According to attorney Rozenholc, the building owner refused to offer any money to either Dilek or to the estate, taking the position that no one had any succession rights to the apartment under the Rent Stabilization Code.

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.”

“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 [*3]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.

The affidavits in support of the complaint assert, among other things, that had attorney Rozenholc informed plaintiff of the retainer agreement’s terms, plaintiff would not have agreed to any settlement that resulted in no money to the estate. The affidavits also state that “but for” attorney Rozenholc’s failure to properly advise the estate of its rights under the retainer, plaintiff “would not have consented to the settlement in its final form but rather would have insisted on payment of the two shares from the total proceeds.” These averments, in addition to the allegations of the complaint, are sufficient to state a claim for legal malpractice.”

“

Lawfirm signs on to represent plaintiffs and a “liaison for plaintiffs” in an ongoing legal malpractice and fee dispute action, and do so for about 6 months until they are disqualified due to a “conflict of interest in representing both the plaintiffs” and the liaison.  Plaintiffs then go on to sue Lawfirm for legal malpractice and unjust enrichment.

This small quote from the case indicates that this saga had a long history.  Plaintiffs had an original case which they lost.  They then sued their attorneys because of that loss.  Their attorneys left the case for some reason.  Lawfirm took over, and were then disqualified.  Other attorneys took over and this case went badly.  Plaintiffs then sued the lawfirm, in a serial legal malpractice case.

Back to our case.  Comprehensive Mental Assessment & Med. Care, P.C. v Gusrae Kaplan Nusbaum, PLLC  2015 NY Slip Op 05904  Decided on July 8, 2015  Appellate Division, Second Department indicates that the Lawfirm won dismissal of the legal malpractice claims, for the most part.  “”To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gould v Decolator, 121 AD3d 845, 847; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 88). On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d at 87-88).

Applying these principles here, the Supreme Court properly granted those branches of GKN’s motion which were to dismiss the first, second, and third causes of action pursuant to CPLR 3211(a)(1). The documentary evidence submitted by GKN in support of the motion refuted the allegations of legal malpractice set forth in the first, second, and third causes of action, and conclusively established a defense to those claims (see Green v Gross & Levin, LLP, 101 AD3d 1079, 1081; Jean-Baptiste v Law Firm of Kenneth B. Mock, 98 AD3d 566).

The Supreme Court erred in granting that branch of GKN’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the fourth cause of action. The fourth cause of action sought to recover damages for legal malpractice due to GKN’s alleged misrepresentation that it had filed a motion to reargue on the plaintiffs’ behalf. While the documentary evidence submitted by GKN in support of its motion established that such a motion was prepared, the motion itself indicates that it was not filed until after GKN ceased representing the plaintiffs.”

This legal malpractice case, which is based upon tax advice may eventually lead to the largest legal malpractice settlement of the year, and perhaps, of the decade.  Overseas Shipholding Group, Inc. v Proskauer Rose, LLP  2015 NY Slip Op 05772  Decided on July 2, 2015  Appellate Division, First Department deals with damages not in the millions, but in the hundreds of millions.  It involves questionable tax advice concerning $1 Billion dollars of earnings.  Whew!

The immediate lesson to be learned is whether continuous representation in the transactional arena can survive a period of time in which nothing actually happens.  This case holds that it can.

” The motion court correctly determined that the legal malpractice claim, based on allegedly deficient tax advice provided by defendants beginning in 2005 and continuing throughout the course of its ongoing representation of plaintiff, is not time-barred (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]; Ackerman v Price Waterhouse, 252 AD2d 179, 205-206 [1st Dept 1998]; see also Zwecker v Kulberg, 209 AD2d 514, 515 [2d Dept 1994]). Further, plaintiff sufficiently pleaded that defendants’ advice was the proximate cause of its alleged damages.

Defendants argue that because the 2006 credit facility agreement was drafted by another law firm, it severed any causal chain between defendants’ work in 2005 and plaintiff’s increased tax liability. However, “[a]s a general rule, issues of proximate cause[, including superceding cause,] are for the trier of fact” (Hahn v Tops Mkts., LLC, 94 AD3d 1546, 1548 [4th Dept 2012] [alterations in original] [internal quotation marks omitted]) and defendants’ contention is unavailing at this procedural juncture (see Ableco Fin. LLC v Hilson, 81 AD3d 416, 417 [1st Dept 2011]). Plaintiff alleges, inter alia, that it continually relied on defendants’ advice for the purpose of shielding income from its off-shore subsidiary from federal income tax and that defendant improperly advised it to make the 2005 “check-the-box” election, which greatly enlarged the prospective pool of income on which plaintiff could be taxed. Plaintiff further alleges that the error in advising it to make the check-the-box election, which according to defendant could not be changed for the next five years, was compounded by the error of changing the language in the credit facility agreements from several liability to joint and several liability, effectively transferring the entire pool of off-shore subsidiaries’ income to plaintiff.”

For the extremely fact-intensive background, read the Richter, J. concurrance.

Plaintiff is an inmate and commenced a legal malpractice action in connection with the attorneys’ handling of a federal civil rights trial.  In New York service of process is mired in ancient practice, and few really understand how to serve a summons and complaint.  Plaintiff appears not to have understood that service upon a defendant LLP could be accomplished by service upon the Secretary of State.  So, in Johnson v Neidl  2015 NY Slip Op 05726  Decided on July 2, 2015  Appellate Division, Third Department the appeal was dismissed, and apparently, defendant was not served.

“Plaintiff, a prison inmate, commenced this legal malpractice action in connection with defendant’s representation of him during a federal civil rights trial. Supreme Court denied plaintiff’s motion for a default judgment given plaintiff’s failure to properly effectuate service upon defendant and also denied his ex parte motion for an order directing service by mail or other alternative method. Plaintiff’s subsequent motion to

reargue and/or renew was denied. Thereafter, plaintiff filed another ex parte motion seeking an order directing an alternate method of service, which the court denied. Plaintiff appeals from the denial of his motion to reargue and/or renew, as well as his subsequent ex parte motion.

Initially, we note that any challenge with regard to the denial of plaintiff’s motion to reargue and/or renew is abandoned given his failure to raise any issues thereto in his brief (see Dunn v Northgate Ford, Inc., 16 AD3d 875, 876 n 2 [2005]). To the extent that plaintiff challenges the denial of his request for an order directing an alternate method of service of the summons and complaint, it is well settled that an appeal does not lie from an ex parte order (see CPLR 5701 [a] [2]; see also Sholes v Meagher, 100 NY2d 333, 335 [2003]; Matter of Barnes v Schroyer, 120 AD3d 1492, 1493 [2014]; Matter of Tyler v Selsky, 267 AD2d 522, 522 [1999]). Accordingly, the appeal from that order must be dismissed.”

 

Harvey v Handelman, Witkowicz & Levitsky, LLP  2015 NY Slip Op 05794  Decided on July 2, 2015  Appellate Division, Fourth Department is a harbinger of legal malpractice issues to come.  Likelyhood of success on appeal will be a banner issue in almost all legal malpractice cases.

“Memorandum: Plaintiff commenced this legal malpractice action seeking damages for the alleged negligence of defendants in their representation of him in a personal injury action arising from a motor vehicle accident that occurred on March 27, 2007. In September 2007, defendants commenced the underlying personal injury action on plaintiff’s behalf against Nicole Gaulin, the owner and driver of the other vehicle involved in the accident. Subsequently, defendants, on plaintiff’s behalf, moved for permission to file a late notice of claim on Gaulin’s employer, the County of Orleans (County), and on the Kendall Central School District (District), the district to which Gaulin was providing services on behalf of the County. That motion was granted by Supreme Court, and the County and the District appealed. We modified the order by affirming that part of the order granting leave to file a notice of claim and by deleting that part of the order which added the County and the District as defendants to the action (Harvey v Gaulin [appeal No. 2], 68 AD3d 1789).

During the pendency of the prior appeal, a notice of claim was served on the County and the District, and an examination pursuant to General Municipal Law § 50-h was conducted. The amended complaint adding the County and the District as defendants was filed on March 4, 2010.

By order dated March 21, 2011, the court granted the motions of the County and the District to dismiss the amended complaint against them as time-barred. No appeal was taken from the March 21, 2011 order. On April 17, 2011, plaintiff filed a consent to change of attorney and defendants’ representation of plaintiff ceased.

By order dated November 7, 2011, the court granted the motion of Gaulin’s estate, substituted pursuant to CPLR 1015, for summary judgment dismissing the amended complaint against it for, inter alia, failure to serve Gaulin with a notice of claim. No appeal was taken from that order.”

“Here, we conclude that defendants failed to meet their burden to establish as a matter of law that any alleged negligence on their part resulting in the March 21, 2011 order dismissing of the amended complaint against the County was not a proximate cause of plaintiff’s damages (see Grace v Law, 108 AD3d 1173, 1176, affd 24 NY3d 203). Thus, the court erred in granting the motion with respect to plaintiff’s causes of action arising out of defendants’ handling of the underlying personal injury action against the County. In support of their motion for summary judgment, defendants’ own submissions established that the action against the County was commenced 51 days after the expiration of the limitations period. While the statute of limitations set forth in General Municipal Law § 50-i was tolled from the time plaintiff commenced the proceeding to obtain leave to file a late notice of claim until the order granting that relief went into effect (see Giblin v Nassau County Med. Ctr., 61 NY2d 67, 74), the order granting such leave was effective when entered (see Toro v City of New York, 271 AD2d 523, 523-524, lv denied 96 NY2d 705), and the appeal from that order provided no further toll (see Dublanica v Rome Hosp./Murphy Mem. Hosp., 126 AD2d 977, 977, lv denied 70 NY2d 605). Thus, the limitations period expired on December 10, 2008, and the amended complaint adding the County was not timely when filed on March 4, 2010 (see generally Ambrus v City of New York, 87 AD3d 341, 345). We therefore further conclude that an appeal from the order dismissing the action against the County on limitations grounds had no likelihood of success.

Plaintiff also contends that the court erroneously granted summary judgment to defendants because an appeal from the November 7, 2011 order granting Gaulin’s estate summary judgment based upon a failure to serve Gaulin with a notice of claim was not likely to succeed. We agree. The court dismissed the action against Gaulin’s estate on the ground that Gaulin was not served with a notice of claim in her official capacity as a County employee. However, defendants did not oppose the motion of Gaulin’s estate on that ground. Nonetheless, the court dismiThus, defendants failed to preserve for our review the issue for any possible appeal by plaintiff and/or his substitute counsel (see Antokol & Coffin v Myers, 30 AD3d 843, 845; Crawford v Windmere Corp., 262 AD2d 268, 269). We therefore conclude that any appeal of the dismissal on this issue was not likely to succeed, and “defendants failed to establish as a matter of law that any negligence on their part was not a proximate cause of plaintiff’s damages” (Grace, 108 AD3d at 1176). We further note that, in moving for summary judgment, defendants did not raise the issue whether an appeal from the dismissal of the amended complaint against Gaulin in her individual capacity would have been “likely to succeed.” ssed the complaint in its entirety. That too was error (see generally Kuhl v Piatelli, 31 AD3d 1038, 1039; Clarke v Davis, 277 AD2d 902, 902). We therefore modify the order by denying the motion insofar as it [*2]sought dismissal of plaintiff’s claims regarding defendants’ representation of plaintiff in the underlying personal injury action against the County and Gaulin, in both her official and individual capacities, and we reinstate the complaint to that extent.

Leonard Global Macro Fund LLC v North Am. Globex Fund, L.P.  2014 NY Slip Op 32393(U)  August 29, 2014  Sup Ct, New York County
Docket Number: 150346/13  Judge: Nancy M. Bannon illustrates the principal that standing by and waiting to sue may lead to a successful statute of limitations defense.  For the most part actions against attorneys, accountants, and other non-medical professionals are subject to a three year statute of limitations which commences at the time of the error.  There are few, if any, “discovery” statutes which might commence when the error is discovered.  This hedge-fund gone wrong case illustrates the dangers of waiting.

“The. ninth and tenth causes of action purport to assert negligence and malpractice claims against Kurcias Jaffe, Sofo, Madison Grey and Strategic. Each of the defendants moves for dismissal of these claims based on the expiration of the statute of limitations. A claim for negligent misrepresentation is subject to a three-year statute of limitations (United States Fire Ins. Co. v North Shore Risk Mgt., 114 AD3d 408, 410 [1st Dept 2014]). Plaintiff alleges that it received the PPM, the DDQ and other investment-related documents in 2007 and that it invested in the Fund in January 2008 in reliance on these documents, Northstar, Peister, Geantasio and the Fund’s auditors and outside administrators (see Am. Cmplt., iii! 45- 47). Thus, any claim based on negligent misrepresentation was time-barred as of January 2011. The sixth cause of action is dismissed as against Geantasio, Kurcias Jaffe and Sofo. Negligence is governed by a three-year statute oflimitations (CPLR 214 [4]). “A cause of action alleging professional malpractice, i.e., that a professional failed to perform services with due care and in accordance with the recognized and accepted practices of the profession, is governed by the three year Statute of Limitations applicable to negligence actions” (Fred Smith Plumbing & Heating Co. v Christensen, 233 AD2d 207, 208 [!st Dept 1996]). A claim alleging accountant malpractice accrues when the malpractice is committed, i.e., upon the receipt of the accountant’s work product (Williamson v.PricewaterhouseCoopers, LLP, 9 NY3d 1, 7-8 [2007]). On February 13, 2009, Kurcias Jaffe sent a letter.to the Fund, its partners and investors stating that it had resigned as the auditor of the Fund for the year ending December 31, 2007 21 [* 21] “because of our inability to complete the audit based upon the information provided by the Company” (Knopf Affirm., Ex. 3). The statute of limitations for negligence and/or malpractiCe claims by Kurcias Jaffe and Sofo expired on February 14, 2012. MadisonGrey was replaced as the outside auditor in June 2008 and Strategic resigned on January 13, 2009 (Am. Cmplt., ii 85; Carpenter Aff., Ex. J). Accordingly, the ninth and tenth causes of action are dismissed against Kurcias Jaffe, Sofo, MadisonGrey and Strategic, pursuant to CPLR 3211 (a) (5).”

Borges v Placeres  2014 NY Slip Op 08910 [123 AD3d 611]  December 23, 2014  Appellate Division, First Department is a description of how a legal malpractice trial was lost by the defendant attorney.  There are some rules unique to the legal malpractice sphere, and failure to utilize them can have substantial consequences.

“Defendant’s motions to amend his answer to assert a statute of limitations defense and for summary judgment dismissing the complaint, made on the eve of trial eight years after the answer was served, were properly denied for lack of any excuse for the delay (see Van Damme v Gelber, 111 AD3d 408, 409-410 [1st Dept 2013], lv denied 23 NY3d 904 [2014]). The motion for summary judgment did not seek relief against a party whose timely motion for summary judgment was returnable the same day, and therefore did not fall within the exception permitting a court to entertain an untimely summary judgment motion (see Kershaw v Hospital for Special Surgery, 114 AD3d 75, 87-89 [1st Dept 2013]; Genger v Genger, 120 AD3d 1102 [1st Dept 2014]).

The charge and verdict sheet appropriately required that defendant’s negligence in this attorney malpractice action be a substantial factor in causing plaintiff’s harm (see Barnett v Schwartz, 47 AD3d 197, 204-205 [2d Dept 2007]). Contrary to defendant’s contention, the gravamen of plaintiff’s claim is not that defendant’s departures caused plaintiff to be denied an adjusted immigration status, tantamount to losing a case, but that those departures resulted in a deportation order and the failure to vacate it due to bad advice. Defendant’s argument that the damages awarded for the harm resulting from plaintiff’s 14 months in detention constitute non-pecuniary damages that are not recoverable in a legal malpractice action is unpreserved.”