In a fairly normal fashion, without much to indicate why the pleading was good enough, Supreme Court, Kings County has denied a CPLR 3211 motion to dismiss in Farkas v Mascolo
2015 NY Slip Op 01605  Decided on February 25, 2015  Appellate Division, Second Department.

“On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, 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 314, 326; Leon v Martinez, 84 NY2d 83, 87). “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; Tooma v Grossbarth, 121 AD3d 1093, 1095).

Here, construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, as we are required to do, the plaintiff stated a cause of action to recover damages for a violation of Judiciary Law § 487 (see Palmieri v Biggiani, 108 AD3d 604, 609; Dupree v Voorhees, 102 AD3d 912, 913; cf. Schiller v Bender, Burrows and Rosenthal, LLP, 116 AD3d 756, 758-759). Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.”

Armstrong v Blank Rome LLP    2015 NY Slip Op 01755   Decided on March 3, 2015  Appellate Division, First Department is an example of a well-pled 487 claim.  It remains in the case after a motion to dismiss.  Note the small zinger at the end of the decision regarding “appealability.”

“The complaint states a claim for violation of Judiciary Law § 487 with sufficient particularity (see Flycell, Inc. v Schlossberg LLC, __ F Supp 2d __, 2011 WL 5130159, *5, 2011 US Dist LEXIS 126024 [SDNY 2011]; Greene v Greene, 47 NY2d 447, 451 [1979]). Specifically, the complaint alleges that defendants concealed a conflict of interest that stemmed from defendant law firm’s attorney-client relationship with Morgan Stanley while simultaneously representing plaintiff in divorce proceedings against her ex-husband, a senior Morgan Stanley executive, who participated in Morgan Stanley’s decisions to hire outside counsel (see New York Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a]). Contrary to defendants’ argument, applying a liberal construction to the allegations in the complaint (see e.g. Leon v Martinez, 84 NY2d 83, 87-88 [1994]), plaintiff identifies the nature of the conflict as stemming from defendants’ interest in maintaining and encouraging its lucrative relationship with Morgan Stanley and the impact of that interest on defendants’ judgement in its representation of plaintiff in the divorce proceedings (see New York Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a]).

Further, the complaint alleges numerous acts of deceit by defendants, committed in the course of their representation of plaintiff in her matrimonial action. Additionally, the complaint sufficiently alleges that the individual defendants knew of but did not disclose defendant law firm’s representation of Morgan Stanley to plaintiff, and it details the calculations of her damages.

The court did not improvidently deny defendants’ motion to strike allegations in the complaint regarding the conflict of interest, and it correctly found that the allegations complained of are relevant to the legal malpractice claim (see Kaufman & Kaufman v Hoff, 213 AD2d 197, 199 [1st Dept 1995]). Although an order denying a motion to strike scandalous or prejudicial [*2]matter from a pleading is not appealable as of right (see CPLR 5701[b][3]), we nevertheless reach this issue since plaintiff did not raise the issue of appealability (see Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600 [1st Dept 2014]).”

Greenberg v Hertzfeld & Rubin, P.C. 2015 NY Slip Op 30268(U)   February 25, 2015   Supreme Court, New York County Docket Number: 650960/2014   Judge: Debra A. James is a good example of the microscopic nature of Supreme Court’s review of a legal malpractice complaint for standing and retainer contract issues.  The case involves a web of will and estate matters, with several attorney firms getting in the mix.

“This action arises from plaintiff Mark Greenberg’s (Greenberg) retention of Hertzfeld, pursuant to a retainer letter agreement letter dated March 4, 2011, as supplemented by a March 28, 2011 letter, between Hertzfeld and Greenberg. Under the terms of the retainer agreements, Hertzfeld undertook to represent Greenberg in connection with litigation related to the estates of Greenberg’s father-in-law, Harry Yaros, who died in 2006, and Greenberg.’ s wife, Laura Yaros Greenberg (Laura Greenberg), who died in 2009. Both estates are currently being administered in· the Surrogate’s Court, Queens County.

The first retainer letter agreement described the services to be performed, as follows, in pertinent part: legal matters relating to litigation over [Harry Yaros’s] estate and related matters. [Hertzf eld] will undertake a comprehensive review of all current litigations and provide [Greenberg] with recommendations as to how to proceed. Thereafter, [Hertzfeld] will implement those recommendations, provided [Greenberg wishes] us to do so and we agree that it is appropriate for us to do so.

The supplemental retainer agreement notes that Hertzfeld had undertaken its review of pending litigation and states that Greenberg has retained Hertzf eld to represent him in the following matters: 1) seeking to have Greeriberg appointed as administrator of his wife’s estate; 2) representing Greenberg and his wife’s estate as beneficiaries of the estate of Harry Yaros, and in seeking to have a 2004 will admitted to probate in the Harry Yaros estate, or alternatively, representing them in regard to any other will admitted to probate; 3) representing Greenberg and Laura Greenberg’s estate as beneficiaries of a joint account with right of survivorship [the Joint Account] with Harry Yaros, and related controversies; 4) representing Greenberg in connection with any motion for sanctions against Greenberg in the Harry Yaros estate proceeding; and 5) representing Greenberg and his wife’s estate in seeking to have a permanent executor other being administered other than Neal Yaros appointed for the estate of Harry Yaros. The supplemental retainer agreement provides further: [e]xcept as set forth above, we are not at this time undertaking to represent you in connection with any other matters we discussed, including but not limited to claims you may have against other attorneys, tax issues relating to personal income taxes or gift tax returns you may have filed, or claims that you and your wife’s estate may have against third parties such as the guardian for your father-in-law in connection with a final accounting filed by him or otherwise.

The amended verified complaint and Greenberg’s affidavit are vague and imprecise, and are riddled with factual inconsistencies. Thus, it is difficult to ascertain the factual basis of the complaint, even under the lenient standards applicable to a CPLR 3211 motion to dismiss, in order to determine whether Greenberg has any cognizable cause of action. It is hornbook law that the determination on a motion based upon the complaint is limited to a review of the four corners of such pleading, which must be construed liberally, with all reasonable factual allegations accepted as true, and the plaintiff being [* 7]accorded the benefit of every reasonable inference (see Esposito v Noto, 90 AD3d 825 [2d Dept 2011]) . The test is whether the allegations of the complaint provide “‘sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments’ [citations omitted]” (Moore v Johnson, 147 AD2d621, 621 [2d Dept 1989]).

Accordingly it is ORDERED that the motion of defendants Hertzfeld & Rubin, P.C., Edward L. Birnbaum, James S. Kaplan, Ian Ceresney, Bryan Lipsky, and Herbert Rubin, pursuant to CPLR 3211 (a) (1) and (7), and CPLR 3013, to dismiss the amended verified complaint, is granted; and it is further ORDERED that the amended verified complaint is dismissed; 19 [* 19]and it is further ORDERED that the Clerk shall enter judgment accordingly, with costs and disbursements, as taxed by the Clerk of the Court, upon presentment of an appropriate bill of costs.

Attorneys rely upon their legal malpractice insurance for stability and backup.  Clients rely upon the attorney’s legal malpractice insurance for safety and reassurance that when their human attorney makes a mistake, there will be someone who steps in and protects them.  What happens when the insurance company turns rogue?

Suckle Schlesinger PLLC v Ironshore Indem., Inc.   2015 NY Slip Op 30263(U)    February 24, 2015    Supreme Court, New York County    Judge: Cynthia S. Kern is a curious case of an insurer acting unpredictably, and shooting itself in the foot.

“The facts are as follows. Plaintiff was insured pursuant to a Lawy~rs Professional Liability Policy with lronshore. Plaintiff represented its client in a claim for property damage in a Supreme Court action, which action was settled for $600,000. This amount was pl~ced in plaintiffs escrow ·I account and was not released to plaintiffs client. Plaintiffs client then commenced an action for [* 1]legal malpractice against plaintiff. Plaintiff sent notice of the legal malpractice action commenced against it to lronshore. On July 11, 2013, York Pro, acting as defendant fronshore’s claim agent, sent plaintiff a letter, which stated as follows:

As such, we will provide coverage for this claim, subject to the following reservation of rights. Section I .B provides that the Insurer shall have the right and duty to defend any claim. As a result, Ironshore has facilitated the Insured’s retention of Robert Modica, Esq. of Gordon & Rees to provide a defense for the insured. We also direct your attention to Section VII.A of the Policy which 1 provides that the Insured shall not admit liability, offer to settle or agree to any settlement in connection with any Claim without the express prior written consent of the Insurer. As a result, we would ask that you limit discussions regarding this case to only those between you and Mr. Modica and his associates/partners.

After plaintiff received this letter, it alleges and defendants do not dispute, that it did not have any discussions with any persons other than the attorneys designated by the defendant insurance company about the case and the settlement of the case until after the settlement agreement was signed.

In November 2013, Mr. Beckman informed plaintiff that a settlement agreement had been reached in the legal malpractice action for the sum of $230,000.00. On November 21, 2013, Mr. Beckman sent an email to plaintiff in which he attached pdfs of the signed settlement agreement and indicated that he would be sending the originals for signature. On November 2, 2013, Gordon & Rees sent a written letter to plaintiff, which stated that two sets of the settlement agreement were enclosed for signature by plaintiff, which should then be returned to Gordon & 2 [* 2]1\ Rees. Plaintiff then signed the enclosed agreement, returned it to Gordon & Rees along with a check made payable to Ironshore in the amount of $5,000 as and for the policy deductible and a cover letter requesting that the insurance company Ironshore issue a check for $230,000 pursuant to the terms of the settlement agreement. In response to this letter, Gordon & Rees advised plaintiff that their contact person at York Pro was Collette Siesholtz and provided plaintiff with her email. Plaintiff then sent an email to York Pro, dated November 26, 2013, to the attention of Collette Siesholtz, requesting that she issue the settlement check pursuant to the terms of the settlement agreement. On November 27, 2013, Collette Siesholtz of York Pro sent an email to the plaintiff in which she stated that “I have requested the check and have noted the time constraint for payment.” The plaintiff then sent another email to Ms. Siesholtz asking for confirmation that the check was being processed. Ms. Siesholtz responded with another email, dated December 3, stating that “The claim was previously submitted last week with a request to expedite. I will follow up to see if the funding is being processed.” On December 4, the day before the settlement payment of $230,000 was due pursuant to the terms of the settlement agreement, Ms. Siesholtz of York Pro sent an email to plaintiff stating that Ironshore would not be making payment for the settlement as the $230,000.

Plaintiff has established that the settlement of the claim was made’ with the consent of the insurer and the insurer has failed to raise a disputed issue of fact with respect to its consent of the settlement. In the letter from defendants acknowledging that they would provide coverage for the claim, they clearly provided that they were retaining Robert Modica Esq. of Gordon & Rees to provide a defense for plaintiff.

Based on the foregoing, the court need not reach the other arguments raised by plaintiff; plaintiff is granted summary judgment on its claim for breach of contract and the clerk is directed to enter summary judgment in favor of plaintiff and against defendants for the amount of $230,000, plus costs and disbursements, plus interest from December 5, 2013. The foregoing constitutes the decision and order of the court.”

The first set of attorneys obtained dismissal in 2014. Hyman v. Schwartz, 2014 NY Slip Op 01362 [114 AD3d 1110].   “In August 2007, plaintiff—then a Cornell University graduate student—was charged with violating the University’s Campus Code of Conduct by allegedly harassing a professor. Following disciplinary proceedings, the University’s Hearing Board sustained the harassment charge and issued a penalty, which was, apart from a slight modification, affirmed by the University’s Review Board. Plaintiff then retained defendant Arthur Schwartz to represent her in a CPLR article 78 proceeding challenging the University’s determination. In addition, Schwartz represented plaintiff in a Title IX claim (see 20 USC § 1681 et seq.). After both of those matters were unsuccessful (Matter of Hyman v Cornell Univ., 82 AD3d 1309 [2011]; Hyman v Cornell Univ., 834 F Supp 2d 77 [2011]), plaintiff commenced the instant action against Schwartz, defendant Schwartz, Lichten & Bright, PC (hereinafter the law firm)—Schwartz’s former and now dissolved law firm—and defendants Stuart Lichten and Daniel Bright—his former partners—seeking damages for negligent and intentional infliction of emotional distress and legal malpractice. In the same complaint, plaintiff also challenged an arbitration award made in Schwartz’s favor in connection with a fee dispute between Schwartz and plaintiff.”

Now, the second (and last) attorneys have won dismissal. Hyman v Burgess  , 2015 NY Slip Op 01687, Decided on February 26, 2015 Appellate Division, Third Department.

“Plaintiff first asserts that Supreme Court erred in denying her motion to dismiss defendant’s counterclaims. A motion to dismiss for failure to state a cause of action can be granted only where the facts alleged do not “fit within any cognizable legal theory” (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Lewis v DiMaggio, 115 AD3d 1042, 1043 [2014]; Brooks v Key Trust Co. N. A., 26 AD3d 628, 629-630 [2006], lv dismissed 6 NY3d 891 [2006])[FN2]. As to defendant’s breach of contract counterclaim, she alleged that the parties executed enforceable retainer agreements, defendant performed professional services under those agreements and plaintiff failed to perform, thereby causing defendant to sustain damages. Affording defendant’s counterclaims a liberal construction, accepting the allegations as true and giving defendant “the benefit of every possible inference,” we determine that she has stated a viable cause of action against plaintiff for breach of contract (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Torok v Moore’s Flatwork & Founds., LLC, 106 AD3d 1421, 1422 [2013]). However, with regard to defendant’s counterclaim that plaintiff was unjustly enriched by her refusal to remit necessary payments for the legal services and related expenses that defendant provided, the assertions raised in defendant’s breach of contract counterclaim echo this equitable claim and, therefore, it must be dismissed (see Corsello v Verizon N.Y., Inc., 18 NY3d 777, 790-791 [2012]; Samiento v World Yacht Inc., 10 NY3d 70, 81 [2008]).

Defendant’s counterclaim of quantum meruit “requires a showing of ‘a [party]’s performance of services in good faith, acceptance of those services by [the other party], an expectation of compensation and proof of the reasonable value of the services provided'” (Rafferty Sand & Gravel, LLC v Kalvaitis, 116 AD3d 1290, 1291-1292 [2014], quoting DerOhannesian v City of Albany, 110 AD3d 1288, 1292 [2013], lv denied 22 NY3d 862 [2014]). Accepting defendant’s allegations as true, namely that she provided plaintiff with legal services, in good faith and with the understanding that payment would be remitted, and that such services were accepted by plaintiff without the provision of due compensation, we find that defendant stated a cognizable equitable claim for quantum meruit (see Rafferty Sand & Gravel, LLC v Kalvaitis, 116 AD3d at 1291-1292; Venture Silicones, Inc. v General Elec. Co., 14 AD3d 924, 925 [2005]).

Turning our attention to defendant’s cross motion seeking dismissal of the amended complaint, we conclude that Supreme Court properly dismissed plaintiff’s legal malpractice cause of action on the merits. “‘In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action “‘but for'” the attorney’s negligence'” (Leder v Spiegel, 9 NY3d 836, 837 [2007] cert denied sub nom Spiegel v Rowland, 552 US 1257 [2008], quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]; accord Hyman v Schwartz, 114 AD3d at 1112; see [*2]Kaufman v Medical Liab. Mut. Ins. Co., 121 AD3d 1459, 1460 [2014]). Although plaintiff maintains that defendant’s professional competence was deficient and failed to conform with

the requirements of the parties’ retainer agreements, she does not allege, to any degree, that defendant’s purported shortcomings precluded her success in the litigation at issue or caused her to sustain ascertainable damages (see Arnold v Devane, 123 AD3d 1202, 1204 [2014]; MacDonald v Guttman, 72 AD3d 1452, 1455 [2010]; Tabner v Drake, 9 AD3d 606, 610 [2004]). Having failed to plead an essential element of a legal malpractice cause of action, Supreme Court properly granted defendant’s motion to dismiss this claim (see Hyman v Schwartz, 114 AD3d at 1112; compare Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1116-1117 [2014]; Alaimo v McGeorge, 69 AD3d 1032, 1034 [2010]). Likewise, the court’s dismissal of plaintiff’s claims sounding in, among other things, unjust enrichment, breach of contract and breach of fiduciary duty — all of which were encapsulated within and entirely duplicative of plaintiff’s legal malpractice cause of action — was correct (see Adamski vLama, 56 AD3d 1071, 1072-1073 [2008]; Guiles v Simser, 35 AD3d 1054, 1055 [2006]).“

We must say that we’re puzzled over the Appellate Division’s reference to a CPLR 3211(a) motion “to dismiss the complaint insofar as asserted against them, or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against them, or to compel additional discovery.”  Portilla v Law Offs. of Arcia & Flanagan  2015 NY Slip Op 01626
Decided on February 25, 2015  Appellate Division, Second Department, modifys the order of Supreme Court and allows discovery post-note of issue.

“The Supreme Court properly denied, as untimely, that branch of the appellants’ motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) insofar as asserted against them, as it was not made within the time period in which the appellants were required to serve an answer (see CPLR 3211[e]), and no extension of time to make the motion was requested by the appellants or granted by the court (see CPLR 2004; Lema v New York Cent. Mut. Fire Ins. Co., 112 AD3d 891; Clinkscale v Sampson, 74 AD3d 721; Bennett v Hucke, 64 AD3d 529; Bowes v Healy, 40 AD3d 566).

The Supreme Court also properly denied that branch of the appellants’ motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) insofar as asserted against them. “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v Liotti, 86 AD3d 169, 176 [internal quotation marks omitted]; see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812; Held v Seidenberg, 87 AD3d 616, 617). Here, accepting the facts as alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), [*2]the complaint alleged sufficient material facts giving rise to a cognizable cause of action to recover damages for legal malpractice.

Moreover, for a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements (see Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772; Goldberg v Lenihan, 38 AD3d 598). Here, the appellants contend that the alleged breach of duty did not cause the plaintiff damages. However, their submissions failed to eliminate all triable issues of fact with respect to whether the plaintiff sustained damages proximately caused by their alleged malpractice. Accordingly, the Supreme Court properly denied that branch of the appellants’ motion which was for summary judgment dismissing the complaint insofar as asserted against the appellants.

However, the Supreme Court should have granted that branch of the appellants’ motion which was for additional discovery. A court may, in its discretion, grant permission to conduct additional discovery after the filing of a note of issue and certificate of readiness where the moving party demonstrates that “unusual or unanticipated circumstances” developed subsequent to the filing, requiring additional pretrial proceedings to prevent substantial prejudice (22 NYCRR 202.21[d]; see Lopez v Retail Prop. Trust, 84 AD3d 891; Audiovox Corp. v Benyamini, 265 AD2d 135, 140). Here, the appellants demonstrated the existence of unusual or unanticipated circumstances which warranted granting their request for post-note-of-issue discovery. Accordingly, the Supreme Court should have granted that branch of the appellants’ motion.”

USHA SOHA Terrace, LLC v Robinson Brog Leinwand Greene Genovese & Gluck, P.C. 2014 NY Slip Op 31813(U),  July 9, 2014,  Supreme Court, New York County , Judge: Melvin L. Schweitzer is a fairly typical Judiciary Law 487 case.  It is a legal malpractice and Judiciary Law 487 case in which plaintiffs assert direct and derivative claims against legal counsel for the owner and developer in a construction project in which plaintiff LLC was a minority investor.  On a motion to dismiss, the court dismissed.

“The motion to dismiss is granted. First, plaintiff Minority i\:’fember, as a member of a limited liability corporation, lacks standing to sue in its individual capacity for losses derived solely from injury to the limited liability company. See Yudell v Gilbert, 99 AD3d 108, 113-114 (1st Dept 2012]; Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258, 266 (2d Dept 2010); Baker v Andover Assoc. Mgt. Corp., 30 Misc 3d 1218 [A], 2009 NY Slip Op 52788[U], * 16-17 (Sup Ct Westchester County 2009). To determine if a claim is direct or derivative, the court must look at the source of the claim of right. If the harm is from the defendants to the corporation, the harm to the shareholders or investors flows through the corporation, and is derivative. On the other , ~ hand, if the right flows from a breach of a duty owed directly to the shareholder, then the suit is direct. See Weber v King, 110 F Supp 2d 124, 132 (ED NY 2000); Baker v Andover Assoc. Mgt. Corp., 30 Misc 3d 1218 [A], 2009 NY Slip Op 52788 [U], * 16-17., A claim for diminution in ‘ value of the shares is harm to the corporation, the shareholder’s injury flows through the corporation, and the claim is derivative even if the decrease in value derives from a breach of fiduciary duty. See Yudell v Gilbert, 99 AD3d at 113-144; O’Neill v Warburg Pincus & Co., 39 AD3d 281, 281-282 (1st Dept 2007). Here, in the amended complaint, plaintiff asserts losses as any “monies owed to [2280 FDB] and [Developer], which were in tum paid to [RGS Holdings and Futterman] resulted in actual monetary losses to [plaintiff Minority Member], in that [plaintiff Minority Member] retains a fourteen percent ( 14%) inter~st in assets of Developer” (amended complaint,~ 43). This claim for diminution in the value of plaintiff’s shares involves harm to the corporation, and may only be pursued derivatively. In addition, the only other injury alleged is the failure of 2280 FOB to recover any portion of its aw~d against Racanelli, which is a direct injury only to 2280 FDB. ”

“Finally, the third claim in the amended complaint fails to sufficiently plead a claim under Judiciary Law § 487. Under that statute, the plaintiff needs to allege an extreme and chronic pattern of legal delinquency in order to recover. Solow Mgt. Corp. v Seltzer, 18 AD3d 399, 400 (1st Dept 2005]; Pellegrino v File, 291 AD2d at 63). The amended complaint here fails to allege the requisite pattern of wrongdoing or deceit necessary to sustain that claim, and fails to allege that any loss suffered by 2280 FDB was the proximate result of Legal Counsel’s alleged . collusion or deceit. “

Issues that are beyond the "ken" of ordinary jurors require expert testimony says the First Department in Wadsworth Condos, LLC v Dollinger Gonski & Grossman 2014 NY Slip Op 00930 [114 AD3d 487] February 13, 2014 Appellate Division, First Department. 

"Plaintiff’s belatedly asserted grounds for alleging legal malpractice may be entertained since they involve no new factual allegations and no new theories of liability, and there is little or no basis on which defendants could claim surprise or prejudice (see generally Alarcon v UCAN White Plains Hous. Dev. Fund Corp., 100 AD3d 431 [1st Dept 2012]; Valenti v Camins, 95 AD3d 519 [1st Dept 2012]). The new claims raise issues of fact whether defendants were negligent in their legal representation of the tenants-in-common, and whether, but for the alleged negligent representation, the tenants-in-common would have been able to avoid the extensive delays in project construction that resulted in the loss of the construction loan, construction delay expenses, and increased attorneys’ fees. The tenants-in-common retained defendants initially to advise them with respect to a stop work order issued by the Department of Transportation (DOT) that prohibited further demolition until an appropriate permit was secured from DOT or the Department of Buildings. Rather than trying to secure a permit or obtain a definitive statement of the ownership of the retaining wall sought to be demolished, defendants reviewed a survey and deed and accepted DOT’s position that the wall was on city property, and entered into what became protracted negotiations with DOT. In moving for summary judgment, defendants did not submit an expert legal opinion as to the ownership of the wall (which is not clear from the record) or whether the failure to seek a demolition permit rather than engage in negotiations constituted negligence, issues that are beyond the ken of the ordinary person (see Nuzum v Field, [*2]106 AD3d 541 [1st Dept 2013]; Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134, 141 [1st Dept 2013], lv denied 22 NY3d 855 [2013])."

Judiciary Law 487, the attorney-deceit statute, part of the common law, is reserved by the Appellate Division for really really bad conduct.  It is not "lightly given."  While proof does not require "clear and convincing" evidence, in practice it is rarely granted, and overwhelmingly dismissed by the Courts.  So it is in Chowaiki & Co. Fine Art Ltd. v Lacher  2014 NY Slip Op 01992 [115 AD3d 600]
March 25, 2014  Appellate Division, First Department.

"In this action arising from defendant attorney and his law firm’s representation of plaintiffs in an action brought against them by a former employee, plaintiffs allege that they were excessively billed for services rendered, and that they were harassed, threatened and coerced into paying the excessive and overinflated fees. The motion court properly dismissed plaintiffs’ claim for breach of fiduciary duty as duplicative of the breach of contract claim, since the claims are premised upon the same facts and seek identical damages, return of the excessive fees paid (see CMMF, LLC v J.P. Morgan Inv. Mgt. Inc., 78 AD3d 562 [1st Dept 2010]; cf. Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]). Although plaintiffs sufficiently allege an independent duty owed to them, arising from the attorney-client relationship, the fraud claim is similarly redundant of the breach of contract claim, since it also seeks the same damages (see Coppola v Applied Elec. Corp., 288 AD2d 41, 42 [1st Dept 2001]; Makastchian v Oxford Health Plans, 270 AD2d 25, 27 [1st Dept 2000]).

However, we find that, as a dispute exists as to the application of the retainer agreement as to defendant, plaintiffs need not elect their remedies and may pursue a quasi-contractual claim for unjust enrichment, as an alternative claim (see Wilmoth v Sandor, 259 AD2d 252, 254 [1st Dept 1999]).

The cause of action based upon Judiciary Law § 487 was properly dismissed since relief under this statute is not lightly given and the conduct alleged does not establish the existence of a chronic and/or extreme pattern of legal delinquency which caused damages (see Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12 NY3d 715 [2009]; Nason v Fisher, 36 AD3d 486, 487 [1st Dept 2007]). [*2]"

As we discussed yesterday, courts are eager to dismiss legal malpractice cases, early in the case or late, on the question of whether Client can show that "but for" the attorney’s negligence there would have been a better economic outcome for the client. Mackey Reed Elec., Inc. v Morrone & Assoc., P.C.  2015 NY Slip Op 01426  Decided on February 18, 2015  Appellate Division, Second Department  is an example.  Read the decision as closely as you wish, but there is not a scintilla of explanation of why client could not show the "but for" causation.

"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 legal malpractice. 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 at 87-88), it fails to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying proceedings or that the plaintiffs would not have incurred any damages (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; Holschauer v Fisher, 5 AD3d 553). Accordingly, the complaint fails to state a cause of action to recover damages for legal [*2]malpractice.

In addition, the causes of action alleging breach of fiduciary duty and fraud are duplicative of the legal malpractice cause of action, since they arise from the same facts as those underlying the legal malpractice cause of action, and do not allege distinct damages (see Biberaj v Acocella, 120 AD3d 1285, 1287; Palmieri v Biggiani, 108 AD3d 604, 608; Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were to dismiss the causes of action alleging breach of fiduciary duty and fraud."