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."

We believe that a higher percentage of legal malpractice cases suffer dismissal, either at the answer or at summary judgment than do other forms of litigation in negligence.  Admittedly, we have but anecdotal evidence.  Nevertheless, Facie Libre Assoc. I, L.L.C. v Littman Krooks, L.L.P.
2015 NY Slip Op 01389  Decided on February 17, 2015  Appellate Division, First Department is a prime example of an institutional bias towards the attorney over the client in dismissals.

"Order, Supreme Court, New York County (Joan M. Kenney, J.), entered September 11, 2013, which granted defendant’s motion to dismiss the complaint, unanimously modified, on the law, to deny the motion as to the legal malpractice cause of action, and otherwise affirmed, without costs.

The legal malpractice cause of action should not be dismissed because it cannot be concluded as a matter of law from the allegations in the complaint that defendant had no duty to monitor the transaction at issue for plaintiffs, including requesting copies of and ascertaining the status of documents required by the issuer for the stock sale to go forward (see Katz v Paul, Hastings, Janofsky & Walker LLP, 19 Misc 3d 1121(A), 2008 NY Slip Op 50796[U] [Sup Ct, NY County 2008]). In particular, plaintiffs allege that there were indications that the legal opinion necessary for the transaction had not been sent to the issuer and that those indications should have triggered an inquiry by defendant (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 115 AD3d 228, 240-241 [1st Dept 2014]). The complaint adequately alleges that but for defendant’s failure to make inquiry as to the status of the legal opinion, the opinion would have been delivered by the seller (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Plaintiffs’ claim for lost profits is not barred by the settlement with the seller for the return of the purchase price since no election of remedies against defendant is involved (see Rennie v Pierce Cards, 65 AD2d 527, 528 [1st Dept 1978])."

Clients get the benefit of an extended statute of limitations under the principal of continuous representation.  It arose out of "continuing treatment" in the medical malpractice world.  In legal malpractice, there must be some evidence of a "continuing relationship of trust and confidence" between client and attorney.  Absent that, the statute begins on the day the mistake is made.  That’s what happened in Priola v Fallon  2014 NY Slip Op 03130 [117 AD3d 1489]  May 2, 2014
Appellate Division, Fourth Department. 

"Memorandum: In this legal malpractice action, plaintiff appeals from an order granting defendants’ motion for summary judgment dismissing the amended complaint on the ground that, inter alia, the action was time-barred. Plaintiff contends that Supreme Court erred in granting the motion because the statute of limitations was tolled by the continuous representation doctrine. We reject that contention. "A cause of action for legal malpractice accrues when the malpractice is committed" (Elstein v Phillips Lytle, LLP, 108 AD3d 1073, 1073 [2013] [internal quotation marks omitted]). Here, defendants established that any malpractice occurred, at the latest, in 2003 and thus made a prima facie showing that the action was time-barred (see International Electron Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1512 [2010]). "The burden then shifted to plaintiff[ ] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine" (id.; see Macaluso v Del Col, 95 AD3d 959, 960 [2012]), and plaintiff failed to meet that burden inasmuch as he failed to present the requisite " ’clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney’ " to toll the statute of limitations (Kanter v Pieri, 11 AD3d 912, 913 [2004]; see Guerra Press, Inc. v Campbell & Parlato, LLP, 17 AD3d 1031, 1032-1033 [2005]). In light of our determination, we do not address plaintiff’s remaining contentions. Present—Smith, J.P., Peradotto, Sconiers and Valentino, JJ."

It’s a well known meme that real estate is close to the heart of New Yorkers.   "Location, location, location" is a phrase bandied about even by schoolchildren.  So, it’s no surprise that real estate transactions may figure in a legal malpractice setting.  Here, in Rojas v Paine  2015 NY Slip Op 01258  Decided on February 11, 2015  Appellate Division, Second Department we see what happens when the attorney does not compare the description of a property in a deed with that of the property purported to be sold.

"In April 2005, the plaintiffs entered into a contract to purchase a one-family house in the Town of Greenburgh from the defendants Andrew Paine and Karen Paine (hereinafter together the Paines). The house was situated on property designated as Lot No. 8 on a subdivision map filed in the Westchester County Clerk’s office. The plaintiffs were represented in the transaction by the defendants Paul Herrick and Rabin, Panero & Herrick, LLP (hereinafter together the Herrick defendants). The Herrick defendants ordered a title report from the defendant Statewide Abstract Corp. (hereinafter Statewide). The title report was issued by Statewide as agent for the defendant Stewart Title Insurance Company (hereinafter Stewart Title), which issued a policy of title insurance.

At the closing on June 6, 2005, the Paines delivered to the plaintiffs a bargain and sale deed reciting that the subject property was "the same property" as had been transferred to the Paines by two separate deeds, both recorded in the Westchester County Clerk’s office on March 4, 2005. However, the description of the property contained in Schedule A of the deed delivered on June 6, 2005, which had also been annexed to the contract of sale, contained only the description of the [*2]portion of Lot No. 8 set forth in one of the two deeds previously recorded on March 4, 2005.

In the fall of 2007, when the plaintiffs sought to sell the property to a relocation company, a title search revealed that the plaintiffs owned only a portion of Lot No. 8. As a result, the relocation company refused to take title to the property. Thereafter, the plaintiffs commenced this action against several parties. With respect to the Herrick defendants, the plaintiffs alleged that they were negligent in failing to discover that the property had been illegally subdivided, permitting the delivery of the deed to only a portion of the parcel, and failing to discover the existence of the remaining parcel. In an order entered September 30, 2011, the Supreme Court, inter alia, denied the cross motion of the Herrick defendants for summary judgment dismissing the complaint insofar as asserted against them, and the case proceeded to trial. Following the trial, a judgment dated June 12, 2013, was entered in favor of the plaintiffs and against the Herrick defendants in the total sum of $349,247.47."

"ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the plaintiffs."

Where Plaintiff may sue the attorney is the question of venue.  Generally speaking, it is in the county where the plaintiff resides, or where the defendant resides.  PCs "reside" in the county where their principal place of business is.  However, the location of the attorney’s office need not be the county where the principal place of business is.  That county is designated by the corporate documents filed for the PC.

In Brion v Moreira   2015 NY Slip Op 30160(U)  February 3, 2015  Supreme Court, New York  County Docket Number: 155815/14  Judge: Donna M. Mills  we see Supreme Court analyze there the law firm may be sued.
 

Thereafter, it is defendant’s burden to establish that given the type of action, the venue chosen was improper. Id. Plaintiff must demonstrate that the venue chosen was proper. Id. A plaintiff forfeits the right to select the venue in an action if said plaintiff chooses an improper venue in the first instance. Kelson v. Nedicks Stores, Inc., 104 A.D.2d 315, 478 N.Y.S.2d 648 (1st Dept.1984).
Here, plaintiffs rely on defendant Moreira PLLC’s Articles of Organization that were filed with the New York Secretary of State on August 23, 2005 which designated New York County as is principal office. Additionally, a computer printout, dated May 21, 2014 from the New York State Department of State’s website also confirms that Moreira’s principal place of business is New York County. The law is clear that the sole residence of a limited liability company for venue purposes is the county where its principal office is located as designated in its articles of organization (see CPLR 503 (c); Limited Liability Company Law§§ 102 (s]; 203 [e) [2]; Graziuso v 2060 Hylan Blvd. Rest. Corp., 300 AD2d 627, 628 (2002); see also Mi/om v Marble Hall Apts., Inc., 37 AD3d 672 [2007]; Hamilton v Corona Ready Mix, Inc., 21 AD3d 448, 449 (2005)). Such office need not be a place where business activities are conducted by the limited liability company (see Limited Liability Company Law§ 102 [s)). Since the defendants failed to establish that the county designated by the plaintiffs in the first instance was improper, its motion to change the venue of the action from New York County to Queens County shall be denied.

Attorney 1 handles a case for a period of time, and then the case is turned over to Attorney 2.  At the time of transfer the case is active nor is under imminent threat of dismissal.  Later, while Attorney 2 is handling the case, something goes wrong, and a legal malpractice case is started against Attorney 1 and Attorney 2.  Attorney 1 says that since Attorney 2 took over, and the case was in good health, why blame me?

The Fourth Department recently considered this very situation in New Kayak Pool Corp. v Kavinoky Cook LLP  2015 NY Slip Op 01066  Decided on February 6, 2015  Appellate Division, Fourth Department. 

"Memorandum: Plaintiffs commenced this legal malpractice action against defendants, Kavinoky Cook LLP (Kavinoky) and Hodgson Russ, LLP (Hodgson), each having represented plaintiff The New Kayak Pool Corporation, now known as Kayak Pool Corporation (Kayak Pool) in a federal trademark infringement action. Seven months after Hodgson was substituted for Kavinoky as legal counsel for Kayak Pool, the federal action settled, and Kayak Pool received, inter alia, injunctive relief and $150,000 in full settlement of all its claims in that action. The settlement check was issued by an insurance company, and plaintiffs now allege that Kavinoky and Hodgson committed malpractice by failing to inquire as to the federal defendants’ insurance coverage. Plaintiffs further allege that, had Kayak Pool been aware that the federal defendants had insurance coverage, Kayak Pool would not have settled for only $150,000.

Following discovery in this action, plaintiffs moved for partial summary judgment on liability, and each of the defendants moved for summary judgment dismissing the amended complaint and all cross claims asserted against them. We conclude that Supreme Court properly granted defendants’ motions."

"Contrary to plaintiffs’ contention with respect to Kavinoky, the court properly determined that Kavinoky’s failure to determine the existence of the federal defendants’ insurance coverage was not a proximate cause of plaintiffs’ alleged damages, which is a necessary element of a cause of action for legal malpractice (see Oot, 275 AD2d at 1023). As noted by the court, "[i]t is undisputed that Kavinoky was discharged as [Kayak Pool’s] counsel, and Hodgson was substituted in as [Kayak Pool’s] counsel, prior to the time that any settlement negotiations began and that Kavinoky had no role whatsoever in those negotiations." Moreover, although plaintiffs substituted Hodgson as their legal counsel only after the attorney who had initially represented plaintiffs left Kavinoky to join Hodgson (see New Kayak Pool Corp., 74 AD3d at 1852-1853), Kavinoky established that a different attorney at Hodgson overtook responsibility for representing plaintiffs once Hodgson was substituted as counsel. Therefore, despite the connection between the two law firms, there was no actual continuity of legal representation. Even if we were to assume, arguendo, that Kavinoky, through the actions of the first attorney, was negligent in failing to investigate the matter of insurance coverage, we note that Hodgson, through the newly assigned attorney, had over seven months in which to conduct its own investigation before settling the federal action on behalf of Kayak Pool. We thus conclude that Kavinoky established as a matter of law "that its actions did not proximately cause the plaintiffs’ alleged damages, and that subsequent counsel had a sufficient opportunity to protect the plaintiffs’ rights by pursuing any remedies it deemed appropriate on their behalf" (Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; see e.g. Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377; Golden v Cascione, Chechanover & Purcigliotti, 286 AD2d 281, 281; cf. Tooma v Grossbarth, 121 AD3d 1093, 1096-1097; Grant v LaTrace, 119 AD3d 646, 647), and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

It’s rare for the AD to start off a decision with a recap of two earlier appeals.  In Dischiavi v Calli
2015 NY Slip Op 01116   Decided on February 6, 2015  Appellate Division, Fourth Department four different defense law firms have been making motions to dismiss, so far, without any success.  On this third try, they sought to preclude the evidence of continuous representation, and accomplish through the back door what they were unable to accomplish at the front door.

"This case has been before us on two prior occasions (Dischiavi v Calli [appeal No. 2], 68 AD3d 1691 [Dischiavi I]; Dischiavi v Calli, 111 AD3d 1258 [Dischiavi II]), both involving, inter alia, the motions of various defendants for summary judgment. In both appeals, at least some defendants sought summary judgment dismissing the legal malpractice cause of action based upon the expiration of the statute of limitations, and we rejected that contention in both prior appeals. Specifically, in Dischiavi I, we concluded that, "[w]ith respect to the legal malpractice cause of action, there is a triable issue of fact whether plaintiffs are entitled to the toll provided by the continuous representation doctrine" (68 AD3d at 1694). Again in Dischiavi II, we affirmed that part of the order on appeal that denied the various defendants’ motions for [*2]summary judgment on the ground "that plaintiffs raised a triable issue of fact whether the doctrine of continuous representation tolled the statute of limitations" (111 AD3d at 1260-1261).

The matter progressed toward trial after this Court issued its decision in Dischiavi II. In the order on appeal, the court granted defendants’ motions to preclude plaintiffs from introducing evidence that any of the defendants represented plaintiffs with respect to any issue other than an issue in the context of a medical malpractice action against a physician. The effect of that order was to limit plaintiffs to introducing evidence that, in 1994, one of the defendants made a statement to Gary M. Dischiavi (plaintiff) indicating that the medical malpractice action was not viable.

We note at the outset that, although the parties do not address the appealability of this order determining a motion in limine, we conclude that plaintiffs may appeal from the order at issue (see Franklin Corp. v Prahler, 91 AD3d 49, 54). "Generally, an order ruling [on a motion in limine], even when made in advance of trial on motion papers constitutes, at best, an advisory opinion which is neither appealable as of right nor by permission" (Innovative Transmission & Engine Co., LLC v Massaro, 63 AD3d 1506, 1507 [internal quotation marks omitted]; see Scalp & Blade v Advest, Inc., 309 AD2d 219, 224). This Court has noted, however, that "there is a distinction between an order that limits the admissibility of evidence,’ which is not appealable . . . , and one that limits the legal theories of liability to be tried’ or the scope of the issues at trial, which is appealable" (Scalp & Blade, 309 AD2d at 224). Here, the order precluded the introduction of the vast majority of the evidence on the issue whether defendants continued to represent plaintiffs so as to toll the statute of limitations, and thus it is appealable because it limits the scope of the issues at trial (see generally O’Donnell v Ferguson, 100 AD3d 1534, 1535-1536; Catanese v Furman, 27 AD3d 1050, 1051).

With respect to the substantive issue, we note that, after our determinations in Dischiavi I and Dischiavi II that there was a triable issue of fact whether the doctrine of continuous representation tolled the statute of limitations, the court granted those parts of defendants’ motions in limine seeking to preclude plaintiffs from offering evidence to establish that there had been such representation. Although the court has broad discretion to determine the admissibility of evidence, we agree with plaintiffs that the court abused that discretion here. Defendants are correct that, "in the context of a legal malpractice action, the continuous representation doctrine tolls the [s]tatute of [l]imitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice" (Shumsky v Eisenstein, 96 NY2d 164, 168). The continuous representation doctrine is derived from the continuous treatment doctrine in medical malpractice cases (see Mercone v Monroe County Deputy Sheriffs’ Assn., Inc., 90 AD3d 1698, 1699; Pollicino v Roemer & Featherstonhaugh, 260 AD2d 52, 54), however, and as the Court of Appeals explained later in Shumsky, "[i]ncluded within the scope of continuous treatment is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment" (id. at 170 [internal quotation marks omitted]). Thus, the statute of limitations in a legal malpractice action is tolled where, as here, a "defendant continuously represented the plaintiffs during [the relevant] period by performing legal services related to the matter out of which the malpractice claim arose" (Kuritzky v Sirlin & Sirlin, 231 AD2d 607, 608).

Furthermore, in both prior appeals we concluded that there was a triable issue of fact whether the statute of limitations was tolled because, in opposition to the various defendants’ motions for summary judgment, plaintiffs raised a triable issue of fact whether one or more of the defendants continued to represent plaintiffs on a related matter (Dischiavi I, 68 AD3d at 1694; Dischiavi II, 111 AD3d at 1260-1261). We reached that conclusion because, in opposition to defendants’ motions for summary judgment, plaintiffs "adduced persuasive evidence establishing that [defendants] performed continuing legal services [throughout the time during which the statute is alleged to have been tolled] to correct [their] alleged failure to effectively" commence an action to recover damages for plaintiff’s injuries (N & S Supply v Simmons, 305 AD2d 648, 650). Here, the evidence that defendants sought to preclude was highly relevant to the issue whether the actions in question involved "an attempt by the attorney to rectify an alleged act of malpractice" that would constitute continuing representation sufficient to toll the statute of limitations (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507; see Weiss v Manfredi, 83 NY2d 974, 977, rearg denied 84 NY2d 848; DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812-813)."