In this version of Dr. v. Lawyer, it’s a knock-out to the lawyer.  Doctor  joins a medical practice and comes under scrutiny for his advocacy of “pranic healing.”  “Pranic Healing® is a highly evolved and tested system of energy medicine developed by GrandMaster Choa Kok Sui that utilizes prana to balance, harmonize and transform the body’s energy processes. Prana is a Sanskrit word that means life-force. This invisible bio-energy or vital energy keeps the body alive and maintains a state of good health. In acupuncture, the Chinese refer to this subtle energy as Chi. It is also called Ruach or the Breath of Life in Hebrew”

So, anyway, back to the legal malpractice.  Doctor had the opportunity to review a series of corporate amendments, and did not go to see the changes when offered.  The changes might have been aimed at him, and he was let go. Litigation ensued in Mendoza v Akerman Senterfitt LLP   2015 NY Slip Op 04193  Decided on May 14, 2015  Appellate Division, First Department.

“Plaintiff is a doctor specializing in pediatric, prenatal, and neonatal medicine. In April 2000, he joined nonparty Children’s and Women’s Physicians of Westchester, LLP (CWPW). He signed both an Amended and Restated Partnership Agreement dated, January 29, 1999, and an employment agreement that was subsequently amended in April 2002.

During the negotiations between CWPW and plaintiff, CWPW was represented by defendant Eric W. Olson’s prior law firm, and plaintiff was represented by independent counsel.

On October 25, 2010, nonparty Dr. Leonard Newman, CWPW’s president, sent an email to CWPW’s managing partners, including plaintiff. Newman’s email forwarded an email from defendant Olson, now a member of defendant Akerman Senterfitt LLP, regarding certain amendments to the partnership agreement:

“I am forwarding to each of you the recommendation of our attorney, Eric Olson . . . in the development of a tiered structure for Managing Partners . . . .”Please review the explanation listed below from Eric Olson. Questions can be directed to Mr. Olson [at his office].”. . . You can come to [an office at CWPW’s principal place of business] to review the documents. However, due to the confidential nature of the documents, we need to limit their distribution beyond the Chairman’s Office. Please stop by before November 15th.”

Olson’s email stated, “This e-mail intends to summarize the two major changes to CWPW’s Partnership Agreement” — namely, “Implementation of a Tiered Managing Partner Structure” and “Entities as Partners” [to meet requirements in the agreement]. In addition to “the two major changes” that Olsen mentioned, the amendment also amended, as relevant here, the grounds for removal of managing partners and the grounds for dissociation of a partner.

On March 8, 2011, Olson sent plaintiff a notice that CWPW intended to terminate his employment based on breaches of the employment agreement — specifically, because of his “pranic healing” practice. Thereafter, plaintiff commenced the instant action asserting causes of[*2]action for aiding and abetting CWPW’s breach of its fiduciary duty to plaintiff, breach of defendants’ fiduciary duties to plaintiff, fraud, negligent misrepresentation, tortious interference with contract and/or prospective economic advantage, and legal malpractice. Plaintiff’s allegations are based on his contention that defendants drafted certain amendments, not mentioned in the email, to expedite and facilitate his termination from the partnership. Defendants moved to dismiss the complaint under CPLR 3211(a)(1) and (a)(7).

Contrary to plaintiff’s argument, the court applied the correct standards on this motion to dismiss and did not effectively convert the motion into one for summary judgment (see Zyskind v FaceCake Mktg. Tech., Inc., 110 AD3d 444 [1st Dept 2013]). The court properly deemed the above emails that were described and quoted in the complaint itself to be documentary evidence (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432-433 [1st Dept 2014]).

The legal malpractice claim was correctly dismissed because, as plaintiff acknowledged in his opening brief on appeal, defendants were CWPW’s attorneys, not his (see Waggoner v Caruso, 68 AD3d 1, 5 [1st Dept 2009], affd 14 NY3d 874 [2010]). Nor can plaintiff maintain a malpractice claim based on the fraud exception to the privity rule, since, as indicated, his fraud claim is not viable (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595 [2005]; Griffith v Medical Quadrangle, 5 AD3d 151, 152 [1st Dept 2004]).”

It’s been 7 years since Bernie Madoff was arrested, yet his craftwork still is filtering through the legal malpractice world.  In Delollis v Archer  2015 NY Slip Op 04084  Decided on May 13, 2015  Appellate Division, Second Department we see an unsuccessful claim by benefit funds of the carpenters’ unions against their attorneys, whom they say should have detected the scheme.

“he plaintiffs, who are the trustees of several local and regional benefit funds affiliated with carpenters’ unions, commenced this action to recover damages for legal malpractice against the defendants Robert M. Archer and Archer, Byington, Glennon & Levine, LLP, alleging that the negligent performance of their professional duties resulted in losses relating to the Ponzi scheme orchestrated by Bernard L. Madoff and Bernard L. Madoff Investment Securities.

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary 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” (Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757 [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438). In addition, to establish causation, a plaintiff must show that he or she would not have suffered any damages but for the attorney’s negligence (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 757).

Here, accepting as true the facts alleged in the complaint and according the plaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), the complaint, on its face, failed to allege facts from which it could be reasonably inferred that the plaintiffs would not have suffered any damages but for the defendants’ negligence (see Sierra Holdings, LLC v Phillips, Weiner, Quinn, Artura & Cox, 112 AD3d 909, 910; Citidress II Corp. v Tokayer, 105 AD3d 798, 798-799; Wald v Berwitz, 62 AD3d 786).”

Judiciary Law § 487 claims are unique, and arise from the oldest statute in Angol-American jurisprudence.  Often misused, the statute is infrequently applied or upheld against its target. Hersh v Weg  2015 NY Slip Op 30698(U)  April 27, 2015  Supreme Court, New York County  Docket Number: 104360/2011  Judge: Jeffrey K. Oing is a prime example.

This story serves as an antidote to a Disney-view of family life.  We’ll let Justice Oing tell the story:

“These claims arise out of an intra-family dispute essentially pitting plaintiff son against his mother. The Appellate Division, First Department reversed this Court’s decision and order, and dismissed plaintiff son’s complaint against defendants, Betty Weg, Arnold Weg, S&G Hotel Corp., and plaintiff’s sisters, Brenda and Nancy Hersh (Hersh v Weg, 105 AD3d 539 [1st Dept 2013]). Thereafter, the County Clerk entered judgment dismissing plaintiff’s complaint on June 24, 2013 (NYSCEF Doc. No. 166).

I tried defendants’ counterclaims against plaintiff before a jury. The only principal to testify on behalf of defendants was plaintiff’s 82-year old mother, Esther Rachel Hersh. At the close of defendants’ presentation of their evidence on the counterclaims, plaintiff moved to dismiss the counterclaims. After hearing arguments, I granted the motion to dismiss: `Based on what we just have [heard] of the argument I grant the motion to dismiss on the ground that I find that the counterclaim plaintiffs have failed to establish prima facie the issue of whether or not Mark Hersh and nominal [defendant] BRA had consent and authorization to enter into the transactions that were entered into during the relevant period of 2007 to 2010. As noted during the argument here from counsel and as noted by this court the key person in all of this is Betty Weg. She should have been called on the case, plaintiff’s case, to tell the court exactly what transpired to those transactions. Mrs. Hersh was not the competent witness to be called on in this case. She had no idea. Her testimony was very noncommittal, was at times unclear, at the end of the day she relied on Betty to make sure everything was running fine. At the end of the day, if Betty did something outside the scope of her authority as president of S&G corporation, that’s a claim that S&G Corporation has against Betty Weg. Unfortunately, for the corporation, Mrs. Hersh has signed a release releasing its claims arising out of this case against Betty Weg so that there is no claim against Betty Weg at this point. So all of that is gone. So that what are we left with? At the end of the day we’re left with a corporation who has no claim to anybody at this point and I find that under these circumstances the counterclaim plaintiffs have failed to establish prima facie that there was no consent and authorization. At the end of the day Betty Weg was the key critical witness that needed to be here to testify. The fact that Mr. Murtha represent[s] she’s now available to testify, that’s neither here nor there at this point. (9/23/14 Decision and Order, at pp. 235-236 [NYSCEF Doc. No. 294]). Evidently, this dismissal did not end the family dispute. Plaintiff son now seeks to add defendants’ counsel as defendants in this action so as to assert against them a Judiciary Law § 487 claim. Plaintiff also seeks the imposition of sanctions against defendant S&G for maintaining allegedly frivolous counterclaims against him.”

“Plaintiff’s motion to amend the complaint is denied. The County Clerk entered judgment dismissing the complaint on June 24, 2013. As such, any subsequent papers and proceedings are deemed a nullity given that the action is no longer pending (Floyd v Salamon Bros., 249 AD2d 139, 140 [1st Dept 1998]). In any event, the proposed amendment seeking to interpose a section 487 claim against defendants’ counsel is palpably insufficient. Section 487 provides, in relevant part: An Attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, intent to deceive the court or any party … Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be resolved in a civil action. Notwithstanding the proposed allegations in the amended complaint, the record is clear — nowhere was there ever an assertion or charge made by plaintiff or his counsel that defendants’ counsel was deceiving or colluding to deceive this Court or plaintiff. Indeed, at no time during argument of the dismissal motion, with the proposed allegations at hand, did plaintiff’s counsel remotely suggest that there was collusion or deception present. Rather, I based my decision and order dismissing the counterclaims on the fact that defendants failed to establish prima facie their counterclaims. I did not ascribe any findings to defendants’ failure to call Betty Weg as a trial witness. Nor was there any factual basis for me to do so. In the end, whether to call her or not was a trial strategy decision to be made by defendants’ counsel. ”

This Fourth Department Case has been up and down on appeal and now heads back to the trial court.  Rich Prods. Corp. v Kenyon & Kenyon, LLP  2015 NY Slip Op 04012  Decided on May 8, 2015  Appellate Division, Fourth Department  is the story of an invention by a huge multi-national food company (think Coffee-Rich).  It has a new pourable dessert.  How about South America?

“Memorandum: In this legal malpractice and breach of contract action, plaintiff appeals and defendant cross-appeals from an order that granted in part defendant’s motion for summary judgment and dismissed the first, second and fourth causes of action, and granted that part of plaintiff’s cross motion for partial summary judgment on liability with respect to the third cause of action. Plaintiff retained defendant to file and prosecute domestic and international patent applications for its invention of a nondairy pourable dessert product (hereafter, invention). Mexican authorities issued a patent for plaintiff’s invention, but a Mexican competitor successfully obtained its invalidation seven years after issuance on the ground that the application was not filed within 30 months of the priority date, a decision that was upheld on appeal. Although defendant had also applied for a patent for plaintiff’s invention in Colombia with the assistance of local counsel, the application was denied. Plaintiff commenced this action, asserting in the first and second causes of action of the amended complaint that defendant committed malpractice by “carelessly failing to timely file the Mexican national phase application of the invention” and breached its contract with plaintiff by “failing to timely file the Mexican national phase application.” Plaintiff asserted in the third and fourth causes of action that defendant committed malpractice by “carelessly failing to file the proper documents in Colombia . . . and carelessly failing to timely file the additional required documents in Colombia,” and that defendant breached its contract with plaintiff by “failing to file the proper documents in Colombia, and failing to timely file the additional required documents in Colombia.”

Contrary to plaintiff’s contention, Supreme Court properly granted defendant’s motion with respect to the first cause of action because the record establishes that defendant did not commit legal malpractice at the time of the representation. The patent was cancelled seven years after it was issued due to a retroactive change in Mexican law, and it is well settled that an attorney’s representation is “measured at the time of representation” (Darby & Darby v VSI Intl., 95 NY2d 308, 313). In support of its motion, defendant submitted the affidavit of an expert on Mexican patent law establishing that the application was timely when it was filed. We conclude that plaintiff failed to raise a triable issue of fact in opposition to that part of defendant’s motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

We further conclude that the court properly granted defendant’s motion with respect to the second cause of action, for breach of contract, because it was duplicative of the malpractice cause of action (see Long v Cellino & Barnes, P.C., 59 AD3d 1062, 1062). We likewise conclude that the court properly denied plaintiff’s motion for leave to serve a second amended complaint, because plaintiff sought only to add duplicative claims (see generally Matter of HSBC Bank U.S.A. [Littleton], 70 AD3d 1324, 1325, lv denied 14 NY3d 710).

We agree with defendant on its cross appeal, however, that the court erred in granting that part of plaintiff’s cross motion for partial summary judgment on liability on the third cause of action. Plaintiff failed to meet its initial burden with respect to that part of the cross motion, inasmuch as plaintiff failed to submit an affidavit from an expert on Colombian patent law concerning the interpretation of the Colombian legal documents and laws (see Sea Trade Mar. Corp. v Coutsodontis, 111 AD3d 483, 484-485; Warin v Wildenstein & Co., 297 AD2d 214, 215; Jann v Cassidy, 265 AD2d 873, 874-875). We therefore modify the order accordingly.”

Last week we discussed two 2d Department decisions on the issue of settlement and a subsequent legal malpractice case.  Today, a new decision from the Third Department.  Schrowang v Biscone   2015 NY Slip Op 03910   Decided on May 7, 2015  Appellate Division, Third Department brings up a familiar trope in matrimonial law.  Attorneys are paid by the hour and work diligently or not so intelligently during the discovery phase of the case.  The wife gets, or does not get pendente lite  support during this phase of the litigation.  Then, as if it were a surprise, comes the TRIAL!   Often, the attorney is less than admirably prepared, and has not obtained the proofs of husband’s assets for trial. So, the parties are often faced with a “settle or I quit!” scenario, or with a demand for $10 or $20 Thousand, or even more, again with the threat of quitting just before trial.  Courts accelerate this problem by letting divorce attorneys off the case just before trial.

In Schrowang the result is unusual. The legal malpractice is not dismissed.  “Plaintiff retained defendant to represent her in a divorce action. On July 25, 2012, the day the trial was scheduled to begin, plaintiff and her husband signed a settlement agreement wherein, among other things, plaintiff agreed to vacate the marital residence and list the property for sale within 90 days. In September 2013, plaintiff commenced this legal malpractice action alleging that defendant failed to take steps to enforce a temporary order of protection and automatic orders pursuant to Domestic Relations Law § 236, did not prepare for trial, and that he instead “browbeat[]” plaintiff into signing the agreement.

Following joinder of issue, defendant moved for dismissal of the legal malpractice action pursuant to CPLR 3212, alleging that plaintiff failed to state a cause of action pursuant to CPLR 3211 (a) (1) (7). Plaintiff moved for partial summary judgment on liability. Supreme Court denied both motions, prompting this appeal by defendant.

A viable cause of action for legal malpractice exists where a plaintiff demonstrates “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 [the] plaintiff to sustain actual and ascertainable damages” (Arnold v Devane, 123 AD3d 1202, 1203-1204 [2014] [internal quotation marks and citation omitted]; see Hyman v Schwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930 [2014]). Here, plaintiff alleged that during [*2]the pendency of the divorce action, she informed defendant that her husband had removed her name from their joint checking account, took more than $100,000 from his retirement account, removed marital assets worth approximately $75,000 from the marital residence,[FN1] transferred title of their vehicle to his name only and engaged in certain conduct in violation of a temporary order of protection. Further, according to plaintiff, defendant told her that he planned to have three people testify at the trial, but she learned the day before the scheduled trial date that defendant had not served trial subpoenas on these individuals. Plaintiff further alleged that, because he was not prepared on the day of trial, defendant negotiated a separation agreement with her husband’s counsel without explaining it to her and without her consent. As defendant concedes, plaintiff told defendant in advance of the trial that her priority was to remain in the marital residence, where she lived with her teenaged daughter and her elderly, infirm mother. Nonetheless, on the day of trial defendant told plaintiff that if she did not sign the agreement, the trial court would force her to vacate the marital residence within 10 days. Plaintiff acknowledges that she signed the agreement, then left the courthouse because defendant told her that it was closing for lunch and, when she returned, she was advised that her case had been called and the separation agreement had been placed on the record in her absence.”

“Here, as defendant has not submitted any expert evidence with regard to whether the services before us provided to plaintiff met the applicable standard of care, “the issue distills to whether defendant met his threshold burden as to the element of either proximate cause or damages” (Arnold v Devane, 123 AD3d at 1204 [2014]). We disagree with defendant’s argument that plaintiff cannot establish either of these elements because she settled the underlying divorce action. Where, as here, the underlying claim is resolved by agreement, this element may be established by evidence that the “settlement . . . was effectively compelled by the mistakes of counsel” (Marchell v Littman, 107 AD3d 1082, 1083 [2013], lv denied 22 NY3d 856 [2013] [internal quotation marks and citations omitted]; see Lattimore v Bergman, 224 AD2d 497 [1996]). While defendant insisted that he negotiated the “best terms” possible, he fails to explain whether or to what extent defendant was familiar with the value of the marital property, whether he investigated plaintiff’s complaints that the husband had taken substantial marital assets in violation of Domestic Relations Law § 236, or whether he was prepared to present any evidence at trial with respect to the marital property on his client’s behalf. Rather, defendant cites the trial judge’s schedule and observations with regard to the marital residence and plaintiff’s “hyster[ia]” as the reason why he encouraged his client to settle the action on the terms that he negotiated.”

At least in the Second Department, the principal that  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 mistakes of counsel.  In the First Department, a line of cases has arisen which undercuts that principal.  The Second Department recently re-affirmed the holding of  Tortura v. Sullivan Papain Block, McGrath & Cannavo PC  in Schiff v Sallah Law Firm, P.C.  2015 NY Slip Op 03820  Decided on May 6, 2015  Appellate Division, Second Department.

“”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, quoting McCoy v Feinman, 99 NY2d 295, 301-302; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756). “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; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 757; Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d 403).

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; Luniewksi v Zeitlin, 188 AD2d 642). Further, the Sallah defendants established, prima facie, that the defendant Francine J. Zecca could not be held liable for professional malpractice because she was not an attorney.

The plaintiff, in opposition, failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the Supreme Court’s determination was not premature. Although the plaintiff opposed summary judgment based, in part, on the defendant’s failure to produce certain discovery, that discovery was requested or ordered after the filing of the defendants’ motion for summary judgment, which imposed an automatic stay of discovery (see CPLR 3214[b]). Furthermore, the plaintiff failed to demonstrate that further discovery may have led to relevant evidence, or that facts essential to oppose summary judgment were exclusively within the defendants’ knowledge and control (see South Shore Neurologic Assoc., P.C. v Mobile Health Mgt. Servs., Inc., 121 AD3d 881; Buchinger v Jazz Leasing Corp., 95 AD3d 1053, 1053-1054).”

Attorney-client communications are privileged, and not open to discovery in general.  In a legal malpractice case, the rules are somewhat relaxed.  If the attorney client communications are “at issue” they are discoverable.  To the extent that Plaintiff relied upon these communications to make decisions about the underlying case for which he is suing the attorneys, it might be called a “shield.”  To the extent that he has decided to sue the attorneys and if he wishes to use the communications as a reason to sue, it might be called a “sword.”

If the communications are used either as a shield or a sword, they are discoverable and no longer privileged.  That’s the “at use” principal.  Gormakh v Khenkin & Sauchik, P.C. 2015 NY Slip Op 30700(U) April 28, 2015 Supreme Court, New York County Docket Number: 155923/2013 Judge: Manuel J. Mendez is an example.

“Plaintiff filed this action to recover from the defendants for legal malpractice and negligence as a result of the negotiating, drafting and signing of a commercial lease agreement for a proposed daycare. The Complaint seeks $300,000 in damages as a result of defendants’ malpractice and negligence. The Complaint also asserts a cause of action for attorneys’ fees and seeks in excess of $100,000 in special damages for “costs and expenditures in pursuit of this matter” (see Complaint, PP 46-47; Bill of Particulars, Response No. 7).

CPLR § 3101 (a) allows for the “full disclosure of all evidence material and necessary in the prosecution or defense of an action regardless of the burden of proof.” CPLR § 31 24 grants the court the power to compel a party to provide discovery demanded. CPLR § 3126 grants the court the power to sanction a party that fails to comply with a court’s discovery order. The striking of a pleading is a drastic remedy and is only warranted where a clear showing has been made that the noncompliance with an order was willful, contumacious or due to bad faith (Mateo v. City of New York, 274 A.O. 2d 337, 711N.Y.S.2d 396 [1st. Dept. 2000]). “The words ‘material and necessary’ as used in section 3101 must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Kapon v. Koch, 23 N.Y.3d 32, 38, 11 N.E.3d 709, 988 N.Y.S.2d 559 [2014) citing to, Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 452, 235 N.E.2d 430, 432 [1968)). The documents sought by defendants are material and necessary to the defendants’ ability to defend against plaintiff’s claims. “[A]ny communications between plaintiff and its attorneys in the [prior action] that evaluated defendant’s prior advice … are certainly relevant to the issue of defendant’s alleged malpractice” (Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 62 A.D.3d 581, 582, 880 N.Y.S.2d 617, 618 [1st Dept., 2009)). The documents sought by defendants (see Aff. In Opposition to Cross-Motion, PP. 3[a-h]) were put at issue by plaintiff’s claim for legal fees and special damages, and plaintiff has not disavowed any intention to use privileged materials to help establish his claim for special damages (Assured Guar. Mun. Corp. v. DB Structured Prods., Inc., 111 A.D.3d 478, 974 N.Y .S.2d 455 [1st Dept., 2013); IDT Corp. v. Morgan Stanley Dean Witter & Co., 107 A.D.3d 451, 967 N.Y.S.2d 51, [1st Dept. 2013)). Defendants are entitled to the documents sought as to the claims for special damages. “

After years of circuitous meandering the Raghavendra action against Columbia University, its attorney and his own attorney has ended with a First Department decision in  Raghavendra v Brill,  2015 NY Slip Op 03774   Decided on May 5, 2015.   The take away from this case is that an attorney fee dispute/resolution will often moot the parallel legal malpractice case, that it’s almost impossible successfully to sue your opponent’s attorney and that, in general, it makes more sense to try to collect from the original wrongdoer than from the attorneys afterwards.

“Plaintiff’s claims against Stober relating to alleged wrongdoing in connection with the negotiation and execution of the July 2009 global settlement agreement of three related federal actions sound in legal malpractice, and are barred by the doctrine of res judicata. The District Court expressly held, in a final order entered upon plaintiff’s challenge to a fee award to Stober, that “the retainer agreement was valid and enforceable” and that Stober was entitled to a fee equal to “one-third of the settlement amount, less $10,000.00 for the up-front” retainer fee paid by plaintiff (Raghavendra v Trustees of Columbia Univ., 2012 WL 3778823, *5, *7, 2012 US Dist LEXIS 124598, *16, *21 [SD NY 2012]). Thus, the District Court necessarily concluded that there was no legal malpractice, and plaintiff is barred from relitigating the malpractice claims (Summit Solomon & Feldesman v Matalon, 216 AD2d 91 [1st Dept 1995], lv denied 86 NY2d 711 [1995]).

Plaintiff’s claims against Stober for breach of the settlement agreement and tortious interference therewith were correctly dismissed because Stober is not a party to the settlement agreement, and plaintiff cannot establish that Columbia (the counterparty to the settlement agreement) breached the agreement, a necessary element of the tortious interference claim. The District Court ruled that Columbia is not yet under an obligation to pay the settlement amount,[*2]because, among other things, plaintiff has refused to render his own performance by executing a general release, as ordered by the District Court. The Second Circuit affirmed the District Court’s finding that the settlement agreement was valid and enforceable (see Raghavendra v Trustees of Columbia Univ., 434 Fed Appx 31 [2d Cir 2011]). Accordingly, the causes of action against Stober for breach of and tortious interference with the settlement agreement are barred by the doctrine of res judicata (Englert v Schaffer, 61 AD3d 1362 [4th Dept 2009]).

Because he cannot establish that there has been any breach, plaintiff’s claims against Columbia for breach of or tortious interference with the settlement agreement were correctly dismissed. The doctrines of res judicata and collateral estoppel preclude plaintiff from asserting his claims of fraud and abuse of process and aiding and abetting fraud and abuse of process. The Second Circuit’s express holding that the settlement agreement is valid and enforceable disposes of plaintiff’s claims that it was reached through oppressive means or is otherwise unenforceable.

Plaintiff’s claims against Proskauer overlap with or are derivative of his claims against Columbia, and were correctly dismissed for the same reasons. Plaintiff did not have an attorney-client relationship with Proskauer (see United States Fire Ins. Co. v Raia, 94 AD3d 749 [2d Dept 2012]). Nor can he establish any “fraud, collusion, malicious acts, or other special circumstances” necessary to impose liability upon an attorney for harm suffered by parties not in privity with the attorney (see Raia, 94 AD3d at 751).”