The statute of limitations for legal malpractice is 3 years, although it may be “tolled” by continuous representation.  The rules for continuous representation are complex, but in general there has to be a continuing understanding between attorney and client of a need for further work and there must be a continuing relationship of trust and confidence.  In transactional work calculating the statute of limitations is more difficult than in litigation.

Genesis Merchant Partners, LP v Gilbride, Tusa,  Last & Spellane LLC  2015 NY Slip Op 31080(U)   June 16, 2015  Supreme Court, New York County  Docket Number: 653145/2014  Judge: Nancy M. Bannon gives an interesting discussion of when transactional work is continuing or merely general representation.

“An action for legal malpractice must be commenced within three years of its accrual. See CPLR 214(6); McCoy v Feinman, 99 NY2d 295, 301 (2002). The claim accrues ‘”when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court.”‘ McCoy v Feinman, supra at 301, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541 (1994). That is, a claim accrues when the malpractice is committed, not when it is discovered. See McCoy v Feinman, supra; West Vil. Assoc. Ltd. Partnership v Balber Pickard Battistoni Maldonado & Ver Dan Tuin. PC, 49 AD3d 270 (1st Dept 2008). 3 [* 3] A cause of action for legal malpractice may be tolled by the continuous representation doctrine. See Glamm v Allen, 57 NY2d 87, 93 (1982).

The statute of limitations will be tolled by the continuous representation doctrine “only so long as the defendant continues to represent the plaintiff ‘in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship.”‘ Transport Workers Union of Am. Local 100 AFL-CIO v Schwartz, 32 AD3d 710, 713 (1st Dept. 2006) quoting Zaref v Berk & Michaels, 192 AD2d 346, 348 (1st Dept. 1993); see West Vil. Assoc. Ltd. Partnership v Balber Pickard Battistoni Maldonado & Ver Dan Tuin. PC, supra. In the present matter, Gilbride fails to establish that the legal malpractice claim accrued more than three years prior to the commencement of this action and is, therefore, time-barred. Genesis alleges in the complaint, filed in 2014, that the parties always anticipated Gilbride’s continuing oversight of the Loans through their maturity dates in June 2012. Indeed, Gilbride performed legal work on behalf of Genesis relating to the Loans through, at least, 2011. Specifically, Gilbride completed amendments to the Loans in 2010 and 2011, “crosscollateralized” Loan 4 with the Loans, and consolidated the Loans with Loan 4 in August 2011. Gilbride was responsible for reviewing and revising the Loan documents to ensure the perfection of the collateral for the Loans and using the presumably perfected Loan collateral to “cross-collateralize” with Loan 4. In addition, Gilbride represented Genesis in a suit in Connecticut against Progressive with regard to the Loans. Genesis and Progressive entered into a conditional settlement, drafted by Gilbride, in which Progressive was to pay the aggregate outstanding value of the Loans by June 2012, plus interim monthly payments commencing in January 2012. Such work was done in connection with the Loans and was not merely the continuation of a general professional relationship between the parties. See Transport Workers Union of Am. Local 100 AFL-CIO v Schwartz, supra. Further, some of the work done during this period, including recording a $1 million mortgage on property included as collateral on Loan 3 eighteen months after the closing, was performed to rectify the alleged act of malpractice, i.e. 4 [* 4] failing to secure the Loans. See Red Zone LLC v Cadwalader. Wickersham & Taft LLP, 118 AD3d 581 (1st Dept. 2014).

In support of its motion, Gilbride fails to demonstrate that its representation terminated at some time earlier than the maturity dates of the Loans. Gilbride avers that the Loans were nothing more than a series of distinct, unrelated transactions. However, Gilbride does not dispute that it completed amendments to the Loans, “cross-collateralized” them with Loan 4, consolidated them, and represented Genesis it a suit regarding the Loans, all after the closing dates of the loans in 2008 and 2009. It is notable that Gilbride does not submit or cite to the retainer agreement in support of its contention that its representation ceased with the closings. See Shumsky v Eisenstein, 96 NY2d 164 (2001 ). The complaint, therefore, is sufficient to establish that there was mutual understanding that Gilbride’s representation would continue after the closings of the Loans and the continuous representation doctrine applies. See Lytell v Lorusso, 74 AD3d 905 (2nd Dept. 2010); West Vil. Assoc. Ltd. Partnership v Balber Pickard Battistoni Maldonado & Ver Dan Tuin, PC, supra; cf. Scott v Fields, 85 AD3d 756 (2nd Dept. 2011 ). Contrary to Gilbride’s contention, its continuous representation of Genesis on the specific matter under dispute tolled the running of the statute of limitations on Genesis’ first cause of action for legal malpractice. See West Vil. Assoc. Ltd. Partnership v Balber Pickard Battistoni Maldonado & Ver Dan Tuin, PC, supra; Transport Workers Union of Am. Local 100 AFL-CIO v Schwartz, supra. Therefore, that branch of Gilbride’s motion to dismiss the first cause of action for legal malpractice pursuant to CPLR 3211 (a)(5) on the ground that it is bared by the statute of limitations is denied. ”

 

Genesis Merchant Partners, LP v Gilbride, Tusa, Last & Spellane LLC    2015 NY Slip Op 31080(U)    June 16, 2015 Supreme Court, New York County    Docket Number: 653145/2014    Judge: Nancy M. Bannon is as good an example of the “but for” rule as one might ever read.  Here is the story.  Plaintiff makes loans to a debtor, and hires Defendant attorneys to do the transactional work on the loan.  The loan has a security interest in real property, and the law firm forgets to file a mortgage for 18 months.  During that delay, other lenders file their liens, and “jump in line” ahead of Plaintiff.  When the foreclosure sale takes place there is not enough money to go around.

Problem for plaintiff is that it always knew it would be in second position, for a bank already had a first mortgage at the time of plaintiff’s loan.  At the foreclosure sale, no one except the bank received any money.  So, the Court held that no matter whether Defendant filed the mortgage on the day of the loan or 18 months later, Plaintiff would not have obtained any payment, either way.

“Gilbride produces the order of the Court of Common Pleas of Lancaster County, Pennsylvania, entitled “Absolute Confirmation of Distribution of Surplus Sale Proceeds,” from the Pennsylvania tax sale of the Pennsylvania property, which indicates that, of the $325,619.42 collected in the sale, $2,345.00 went to the Pennsylvania Department of Revenue, and $323,274.42 went to satisfy Farmer Boy’s lien placed on the property seven months before the closing of Loan 3. No other entity, including the mortgagees ahead of Genesis, obtained any sale proceeds. Although Genesis alleges that it received nothing as a result of the sale due to Gilbride’s failure to record the mortgage on the Pennsylvania property for a period of eighteen months, the documentation submitted by Gilbride establishes that Genesis did not suffer any losses due to Gilbride’s negligence. Rather, its losses were the result of the existence of a lienor with a greater claim to the sales proceeds than Genesis. Even if the mortgage had been recorded immediately after the closing of Loan 3, and even if Genesis’ lien sat directly after Farmer Boy as a lienor, Genesis would not have obtained any sale proceeds.

Because the documentary evidence establishes that there is no “but for” proximate cause, that portion of the first cause of action for legal malpractice seeking damages for Gilbride’s failure to record the mortgage is dismissed. See O’Callaqhan v Brunelle, 84 AD3d 581 (1st Dept. 2011 ). “

A quick reading of KBL, LLP v Community Counseling & Mediation Servs.  2014 NY Slip Op 08581 [123 AD3d 488]  December 9, 2014
Appellate Division, First Department leads one to ask, what did plaintiffs intend to prove, and had they considered the question of “proximate cause?”

“Defendant is a not-for-profit organization that provides services funded in large part through government agencies. In 2005 and 2006, defendant applied for and obtained funding from the Administration for Children’s Services (ACS).

For 2007, defendant sought approximately $2.7 million in funding from ACS and hired plaintiff to perform an audit and prepare the audited financial statements for its fiscal year ending June 30, 2006, which were required for the application. In May 2007, plaintiff prepared the statements, which indicated twelve deficiencies in defendant’s financial reporting and practices. Defendant forwarded the statements to ACS, which denied the application five days later.”

“The jury found that plaintiff departed from good and accepted accounting standards and practice in the preparation of the audit report. However, it found that plaintiff’s malpractice was not a substantial factor in causing defendant money damages.”

“”[I]f you find that the accountant was negligent that negligence must be the cause of the damages that [defendant] claims, and [defendant] must establish beyond the point of speculation and conjecture that there was a causal connection between its losses and [plaintiff’s] actions.”

Viewed in this light, it can not be said the jury verdict was either contrary to the weight of the evidence or inconsistent. The sole question with regard to causation was why ACS declined to fund defendant for 2007. However, among other things, neither side called anyone from ACS to provide evidence of the reason for ACS’ s decision and testimony from defendant’s CEO downplayed the significance that ACS placed on the audit findings, with the CEO stating: “So there were 12 [audit] findings. They were very insignificant, petty and in a way outrageous that even the refunders, even the funders saw it that way. They could have really beaten us up on those 12. They didn’t.”

Thus, it was not utterly irrational for the jury to find that defendant did not establish “beyond the point of speculation and conjecture that there was a causal connection between its losses and [plaintiff’s] actions.” The jury could find that defendant failed to establish that but for plaintiff’s negligence, ACS would have provided the funding (see Cannonball Fund, Ltd. v Marcum & Kliegman, LLP, 110 AD3d 417 [1st Dept 2013]). Concur—Mazzarelli, J.P., Renwick, Andrias, Saxe and Kapnick, JJ.”

The social policy behind limitations on legal malpractice undoubtedly arises from the fear that after every litigation, whether commercial, personal injury, matrimonial or patent, there might be a legal malpractice case.  Only strict rules (goes the fear) will keep this epidemic in rein.  So, Courts routinely scrutinize legal malpractice cases more rigorously than they do for other cases.  Agosta v Kuharski, Levitz & Giovinazzo, Esqs.  2015 NY Slip Op 50946(U)  Decided on June 19, 2015  Supreme Court, Richmond County  Minardo, J. may be a poster child for this fear.

“Plaintiffs retained KUHARSKI to represent them in an action to recover damages for personal injuries that they received after being struck by a vehicle when they were pedestrians on a roadway in Beach Haven, New Jersey. At the time of the incident, the operator of the motor vehicle was intoxicated and subsequently pleaded guilty to a number of violations associated with the accident. The case was filed by KUHARSKI in New Jersey Superior Court, Ocean County, New Jersey.

Plaintiffs allege that KUHARSKI was negligent because of its failure to prosecute a[*2]”Dram Shop” cause of action against the restaurant where the driver operator was served alcoholic beverages; that the firm did not include a cause of action for punitive damages against the driver in the complaint; that they were compelled to settle[FN1] the matter (for an undisclosed sum) that was substantially less that would have been realized if the aforementioned claims had been included in the lawsuit; and that KUHARSKI allowed the time for pre-trial discovery to expire without conducting necessary discovery including the examination before trial of the operator.”

“It is clear that plaintiffs’ allegation that KUHARSKI failed to conduct pre-trial discovery in this case is baseless as KUHARSKI had, in fact, conducted the deposition of the operator of the vehicle on March 13, 2013 (A copy of the transcript of the examination before trial is attached to KUHARSKI’s moving papers). In their opposition to this motion, plaintiffs acknowledge that their contention that the deposition was not taken was “incorrect” without providing any explanation for this false allegation.

Also unfounded is plaintiff’s claim that a “punitive damages” cause of action against the operator of the vehicle should have been included in the complaint. In the State of New Jersey, in order “[T]o warrant a punitive award, the defendant’s conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an evil minded act’ or an act accompanied by a wanton and wilful disregard of the rights of another” (Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 NJ 37,49, 447 AD2d 1224 [1984]). Plaintiffs provide no information other than the operator had a Blood Alcohol Content of .12 at the time of the accident and that he subsequently pled guilty to driving while intoxicated. The operator testified that he stopped immediately after the accident; was not speeding; and was not drinking at the time of the accident. In addition, he testified as to the number of drinks that he had before the [*3]accident and when they were consumed. Plaintiffs fail to provide any evidence or other information to support any claim that the operator’s conduct was “wantonly reckless or malicious” as the mere fact that the operator was intoxicated is insufficient to support a punitive damages claim. In addition, plaintiffs neglect to provide any basis for their claim that a “Dram Act” cause of action should have been commenced against another proposed defendant.

Lastly, plaintiffs claim that they “were forced to settle for an amount far less than if the matter had been handled with the appropriate degree of professional competence”. Plaintiffs neglect to provide the Court with any information as to the injuries that they received from the accident and/or the amount that they received when the matter was settled. Although, plaintiffs are not required to establish that they actually sustained damages, they are required to plead allegations from which damages attributable to the defendant’s malpractice might be reasonably inferred (see Fielding v. Kupferman, supra.). As set forth above, plaintiffs have failed to establish that KUHARSKI failed to conduct pre-trial discovery or that KUHARSKI should have prosecuted a claim for punitive damages against the operator or a “Dram Shop” claim against the restaurant. As such, there is no basis for the Court to reasonably infer that plaintiffs were compelled to settle the action for less than fair value.

Accordingly, the motion of defendant KUHARSKI, LEVITZ & GIOVINAZZA, ESQS. to dismiss the complaint of plaintiffs JOSEPHINE AGOSTA and MICHAEL PIVARNICK, pursuant to CPLR 3211(a)(1) and (7), is granted.”

Alksom Realty LLC v Baranik   2015 NY Slip Op 50869(U)  Decided on June 9, 2015  Supreme Court, Kings County  Demarest, J. is a case that touches two of the most relevant issues to a New Yorker, especially a Manhattanite, real estate and taxes.  Looking at this story, one asks, how could this happen?

Plaintiff has an apartment at 25 Columbus Circle which is the uber-premiere Times-Warner building.  He has an apartment on the 58th floor that is up for sale for $ 4.1 Million.  He signs a sales contract and accepts not 10% but rather 1% ($ 41,000) and then goes to the closing and transfers the property without receiving his $4.06 million.  He waits 4 years to sue the buyer?  How can this happen?

“In or about May 2007, Alksom contracted to sell apartment 58G at 25 Columbus Circle, New York, New York (the “Contract” and the “Apartment”, respectively) to Artique Multinational, LLC (“Artique”) for the purchase price of $4.1 million. Upon execution of the Contract, Artique paid $41,000 as a down payment to Alksom. At the closing of title, Artique did not pay the balance of the purchase price. Nevertheless, Alksom transferred title to the Apartment on September 10, 2007 based on the managing member of Artique, David Segal’s (“Segal”), assurances that payment of the balance was forthcoming. Plaintiffs claim that they were never paid the full purchase price. This chain of events gave rise to an action in New York County styled Komolov v Segal, Index No. 651626/2011, in which plaintiffs seek a money judgment for conversion of the Apartment (the “Segal Action”).

Based on Roman’s deposition testimony in the Segal Action, plaintiffs claim that Roman and Rom Bar committed accounting malpractice by reporting receipt of full consideration for the sale of the Apartment on Alksom’s 2007 Federal tax return (the “Original Return”), even though Alksom had never received the balance of the $4.1 million purchase price. Plaintiffs claim that Roman and Rom Bar impermissibly relied on representations from Segal that full consideration was paid to Alksom, as well as a single page facsimile from Segal that contained Segal’s recollection of the amount paid by Alksom when it first purchased the Apartment from Segal in 2005. Plaintiffs claim that Roman failed to collect any supporting documentation and did not have “closing statements” from either Alskom’s 2005 purchase of the Apartment or the September 2007 sale of the Apartment. Plaintiffs further claim that Roman and Rom Bar knew that no consideration was received in plaintiffs’ bank accounts because Roman had full access to these accounts. Plaintiffs assert that Roman and Rom Bar relied on incomplete information and failed to verify this information with the client before filing the Original Return. Plaintiffs further assert that although Roman and Rom Bar knew that the Original Return was inaccurate by the fall of 2010, Roman and Rom Bar waited until 2012 to file an amended tax return, even though the deadline to amend the Original Return would have been April 2011. Based on these allegations, plaintiffs assert causes of action for accountant malpractice, negligence, and gross negligence.”

Defendants argue that plaintiffs’ thirteenth through eighteenth causes of action must be dismissed as time-barred. CPLR § 214(6) sets forth a three-year statute of limitations for accounting malpractice. “A claim accrues when the malpractice is committed, not when the client discovers it” (Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 7-8 [2007]). Defendants claim that because the Original Return was filed on April 14, 2008, plaintiffs’ claims for accounting malpractice, negligence, and gross negligence are time-barred because this action was commenced on December 1, 2014, over three years from when plaintiffs’ cause of action accrued. However, plaintiffs correctly argue that the statute of limitations here is tolled because of the continuous representation doctrine.

“[U]nder the continuous treatment doctrine, when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint,’ the limitations period does not begin to run until the end of the treatment” (id. at 8, quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]). Although the continuous representation doctrine originally derived from the continuous treatment concept in medical malpractice cases, it has been applied to other professionals, such as accountants (see Zaref v Berk & Michaels, P.C., 192 AD2d 346 [1st Dept 1993]). For the continuous representation doctrine to apply, plaintiff must “assert more than simply an extended general relationship between the professional and the client in that the facts are required to demonstrate continued representation in the specific matter directly under dispute” (id. at 348). After filing the Original Return in 2008, Roman filed an amended return in 2012[FN2] in order to correct the erroneous information in the Original Return. Here, plaintiff has demonstrated continuous representation by defendants relating to the specific matter of the inaccuracies reported by Roman and Rom Bar in the Original Return such that the statute of limitations is tolled. Accordingly, plaintiffs’ accounting malpractice claims are timely.”

Legal Malpractice is an  attorney’s failure to use minimally adequate levels of care, skill or diligence in the performance of representation of the client, causing harm. In New York, attorney malpractice is defined as a deviation or departure from good and accepted legal practice, where the client has been proximately damaged by that deviation, but for which, there would have been a different, better or more positive outcome and which caused ascertainable damages.

The first element of a relationship between the client and the professional is that there was a contractual relationship between the attorney and the client.  An actual relationship is necessary.  The cases often set forth that a “subjective belief” that the attorney was representing them is insufficient.  The second element, deviation, is shown by evidence, not necessarily expert, which shows that the acts of the professional fell so below the good and accepted practice of law in New York, that a jury would be permitted to find that the acts below standard.

Expert testimony is necessary when the deviation is subtle; an example could be the failure to supply an affidavit of merits to restore a case marked off calendar, the failure to respond to a CPLR 3216 notice, or failures in response to a motion for summary judgment. Expert testimony is not always necessary however. None is needed to demonstrate the deviation in failing to file within the statute of limitations. Bad outcome do not necessarily equal a deviation. Furthermore, questions of judgment of strategic choice cannot serve as the basis of malpractice. An attorney is permitted the reasonable choice of strategy, if supported by acceptable reasoning. The strategic choice must be reasonable both objectively and subjectively. The difference between strategic choice and mistake are subtle, and create the most difficult cases.

The third element of proximate cause encompasses both the typical analysis that arises in all negligence litigation and the additional element of “but for.” The plaintiff must demonstrate not only that the deviation was a substantial cause of the poor outcome, but must additionally show that “but for” the deviation there would have been a different, better or more positive outcome. An example of this potential difficulty arises in an automobile accident. No matter how many deviations are shown, it may be that the maximum insurance for the other driver limits the recovery. If that is true, it will be impossible to show that “but for” the deviation, more than the policy limit was available and could have been recovered from the defendant.

Judiciary Las § 487 claims are widely brought, but remain elusive.  Courts seem to want to reserve them for the most egregious situations, and will dismiss any number of cases that do not meet their catastrophic criteria. Gumarova v Law Offs. of Paul A. Boronow, P.C.   2015 NY Slip Op 05155  Decided on June 17, 2015  Appellate Division, Second Department  is one such example.

Dismissed on a pre-answer motion, it was affirmed on appeal.  “On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the pleading 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 314, 326; Leon v Martinez, 84 NY2d 83, 87).

Judiciary Law § 487 provides that an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is guilty of a misdemeanor, and “forfeits to the party injured treble damages, to be recovered in a civil action.” “Since Judiciary Law § 487 authorizes an award of damages only to the party injured,’ an injury to the plaintiff resulting from the alleged deceitful conduct of the defendant attorney is an essential element of a cause of action based on a violation of that statute” (Rozen v Russ & Russ, P.C., 76 AD3d 965, 968).

Here, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Judiciary Law § 487. The cause of action alleging a violation of Judiciary Law § 487 fails to sufficiently allege that the plaintiff suffered an injury proximately caused by any alleged deceit or collusion on the part of the defendants, and no such injury can reasonably be inferred from the allegations in the complaint (see Bohn v 176 W. 87th St. Owners Corp., 106 AD3d 598, 600; Rozen v Russ & Russ, P.C., 76 AD3d at 968).”

OK, so the client comes into the office, and you think you might take the case.  Then, after further thought, you think you might not take the case.  What do you do?  How do you do it?  Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP  2015 NY Slip Op 04819  Decided on June 10, 2015  Appellate Division, Second Department is an example of how not to disengage.

“On November 27, 2006, the plaintiff allegedly was driving his employer’s bus when he collided with another vehicle. Shortly thereafter, the plaintiff retained the defendant, a law firm, to represent him in connection with the motor vehicle accident. According to the defendant, in April 2007, it decided not to prosecute a personal injury action on the plaintiff’s behalf and advised the plaintiff of this fact by letter dated June 8, 2007, while continuing to represent the plaintiff with respect to a workers’ compensation claim. ”

“The defendant contended that it did not represent the plaintiff with respect to the personal injury action, based upon assertions that an attorney formerly with the defendant orally informed the plaintiff that “a personal injury action was not feasible” and thereafter sent the letter dated June 8, 2007, to the plaintiff by regular and certified mail. In support of the motion, the defendant submitted a copy of the letter and a blank certified mail receipt.

In opposition, the plaintiff’s attorney noted that the defendant did not submit an affidavit or affirmation from the attorney who allegedly mailed the letter dated June 8, 2007. The attorney further noted that the certified mail receipt was blank, and no return receipt was submitted. The plaintiff also submitted a personal affidavit wherein he stated that he retained the defendant for [*2]both his workers’ compensation claim and his personal injury claim, he was never informed that the defendant would not represent him in a personal injury action, and he never received the letter dated June 8, 2007.

In a reply affidavit, the attorney who allegedly mailed the letter dated June 8, 2007, who was now working at another law firm, stated that she “specifically advised” the plaintiff in a telephone conversation that “a personal injury action was not feasible” and as a result, the defendant “would not be representing him in a personal injury action.” She further stated that she sent the letter dated June 8, 2007, to the plaintiff via regular mail and certified mail.

The Supreme Court denied the defendant’s motion, and we affirm.”

“Here, the evidence submitted by the defendant failed to establish that the plaintiff has no cause of action. The evidence did not show that the letter dated June 8, 2007, was sent by certified mail return receipt requested, since the certified mail receipt was never filled out and there was no return receipt submitted. With respect to regular mail, “[t]he mere assertion that notice was mailed, supported by someone with no personal knowledge of the mailing,” in the absence of proof of office practices to ensure that the item was properly mailed, does not give rise to the presumption of receipt (Washington v St. Paul Surplus Lines Ins. Co., 200 AD2d [*3]617, 618; see Nassau Ins. Co. v Murray, 46 NY2d 828, 829; TD Bank, N.A. v Leroy, 121 AD3d 1256, 1258; Long Is. Sports Dome v Chubb Custom Ins. Co., 23 AD3d 441, 442). CPLR 2103(f)(1) defines mailing as “the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person’s last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state.” Here, while the defendant’s former attorney averred that she “sent” the letter dated June 8, 2007, by regular mail, she did not state that she deposited the letter in a United States Post Office depository. Since the defendant’s evidence failed to establish that a material fact as claimed by the plaintiff, namely, the existence of an attorney-client relationship, was “not a fact at all” and that “no significant dispute exists regarding it” (Guggenheimer v Ginzburg, 43 NY2d at 275), the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.”

A frequently recurring legal malpractice issue arises when one law firm handles a workers’ compensation case arising from a personal injury.  One such example is  Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP  2015 NY Slip Op 04819  Decided on June 10, 2015  Appellate Division, Second Department.  There are three lessons to be learned:

1.  Disengagement letters are vastly important;

2. When a disengagement letter is mailed, do it correctly;

3. The statute of limitations for legal malpractice accrues when the statute of limitations for the underlying personal injury action expires.

“On November 27, 2006, the plaintiff allegedly was driving his employer’s bus when he collided with another vehicle. Shortly thereafter, the plaintiff retained the defendant, a law firm, to represent him in connection with the motor vehicle accident. According to the defendant, in April 2007, it decided not to prosecute a personal injury action on the plaintiff’s behalf and advised the plaintiff of this fact by letter dated June 8, 2007, while continuing to represent the plaintiff with respect to a workers’ compensation claim. On or about October 21, 2010, the plaintiff discharged the defendant and hired a new attorney. In November 2012, the plaintiff commenced this action against the defendant to recover damages for legal malpractice. The plaintiff alleged that the defendant failed to commence a personal injury action on his behalf against the owner and operator of the other vehicle involved in the motor vehicle accident before the statute of limitations expired.

The defendant made a pre-answer motion to dismiss the complaint as time-barred, for failure to state a cause of action, and based upon documentary evidence. The defendant contended that it did not represent the plaintiff with respect to the personal injury action, based upon assertions that an attorney formerly with the defendant orally informed the plaintiff that “a personal injury action was not feasible” and thereafter sent the letter dated June 8, 2007, to the plaintiff by regular and certified mail. In support of the motion, the defendant submitted a copy of the letter and a blank certified mail receipt.

In opposition, the plaintiff’s attorney noted that the defendant did not submit an affidavit or affirmation from the attorney who allegedly mailed the letter dated June 8, 2007. The attorney further noted that the certified mail receipt was blank, and no return receipt was submitted. The plaintiff also submitted a personal affidavit wherein he stated that he retained the defendant for [*2]both his workers’ compensation claim and his personal injury claim, he was never informed that the defendant would not represent him in a personal injury action, and he never received the letter dated June 8, 2007.

In a reply affidavit, the attorney who allegedly mailed the letter dated June 8, 2007, who was now working at another law firm, stated that she “specifically advised” the plaintiff in a telephone conversation that “a personal injury action was not feasible” and as a result, the defendant “would not be representing him in a personal injury action.” She further stated that she sent the letter dated June 8, 2007, to the plaintiff via regular mail and certified mail.

The Supreme Court denied the defendant’s motion, and we affirm.”

“The statute of limitations for a legal malpractice cause of action is three years (see CPLR 214[6]). This legal malpractice action accrued when the statute of limitations for the underlying personal injury action expired (see Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 258 AD2d 321, 321;Goicoechea v Law Offs. of Stephen R. Kihl, 234 AD2d 507, 508). Here, the plaintiff’s underlying personal injury action accrued on November 27, 2006, when the accident occurred, and the statute of limitations expired three years later, on November 27, 2009 (see CPLR 214[5]). Thus, this legal malpractice action accrued on November 27, 2009, and the statute of limitations expired three years later, on November 27, 2012. This action was commenced on November 15, 2012. Therefore, this action was not time-barred.”

 

 

In a situation where one needs the program to know who the players are, Miuccio v Straci  
2015 NY Slip Op 05101  Decided on June 16, 2015  Appellate Division, First Department appears to be a legal malpractice case.  However, one needs to read well into the short opinion to gather that Plaintiff is suing Defendant for legal malpractice in the handling of some assets.

“Defendant contends that, even if there is a triable issue of fact as to his responsibility for the delay in transferring plaintiffs’ assets from Amalgamated Bank to Western Asset Management (WAM), the damages plaintiffs seek, namely, the difference between the low interest rate the funds earned at Amalgamated and the higher return they would have received at WAM, are too speculative. This argument is unavailing. “[B]ut for” defendant’s alleged negligence (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]), plaintiffs would have earned a higher return earlier than June 2005, and the difference between the amount they earned at Amalgamated and the amount they would have earned at WAM is “readily ascertainable” (id. at 443) and, indeed, was “calculated” (id.)by their expert.

We have considered defendant’s remaining contentions, including that lost profits can be awarded only if a fiduciary engages in self-dealing, and find them unavailing. Notably, the case sounds in legal malpractice, not breach of fiduciary duty. The claim is that defendant was negligent in handling paperwork to effect the transfer of assets from one company to another, not that he retained the assets or invested them in a manner disadvantageous to plaintiffs.”