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)."

Husband and wife live and love for a long time, then things descend into divorce.  All of a sudden, money gifts  from the in-laws turn into loans, and the husband is asked to repay her parents.  He’s aghast, and fights back.  Eventually wife agrees that these were not loans at all.  Does the husband have a Judiciary Law 487 claim against her attorneys for putting this argument forward?

Not in Shaffer v Gilberg  2015 NY Slip Op 00865  Decided on February 4, 2015  Appellate Division, Second Department.  While the Court does not give much guidance, it seems to us that the attorneys got dismissal on the theory that they relied upon the affidavits of the parents, and did not independently try to deceive the court.  Anyway, the Court writes:

The plaintiff, who was a party to a highly contentious matrimonial action, contested the authenticity of 30 separate promissory notes and loans submitted by the wife in that action and reflected as liabilities in her net worth statement. The notes indicated that the wife owed her father, Gerald N. Gilberg, her mother, Frances Gilberg, and her mother and father’s corporations, The Gilberg Organization, Inc., and TGA of Palm Beach, Inc. (hereinafter collectively the Gilberg defendants), in excess of $446,000 which, with added interest, amounted to more than $669,000. The plaintiff maintained that each of the 30 loans had actually been a gift from his in-laws to him and his wife and their family during the course of a 12-year period. The plaintiff theorized that the wife and her parents were improperly attempting to reduce the marital estate in order to also reduce the plaintiff’s share of the marital estate.

In the matrimonial action, the plaintiff submitted documents which cast into doubt the authenticity of the notes. Shortly after the plaintiff submitted these documents, the wife’s attorney, James J. Nolletti, a partner with Collier, Halpern, Newberg, Nolletti & Bock, LLP (hereinafter together the Collier defendants), withdrew the attorney certification to the wife’s net worth statement.

Eventually, the plaintiff and his wife were able to reach a settlement agreement. As part of the agreement, the wife took responsibility for any debts in her name or guaranteed by her and the plaintiff was awarded a distributive award from the marital estate.

The plaintiff thereafter commenced this action against the Gilberg defendants and the Collier defendants, inter alia, to recover damages for fraud. In his complaint, the plaintiff did not allege that the marital estate was improperly diminished due to these allegedly fabricated notes and loans but, rather, alleged that he relied on the Gilberg defendants’ representations that the payments were gifts at the time that they were made. The plaintiff alleged that, as a result, he incurred debt and lived a lifestyle that he could not have otherwise afforded, and expended legal fees and suffered business losses determining whether the notes and loans were authentic. The Gilberg defendants moved to dismiss the complaint insofar as asserted against them, and the Collier defendants separately moved to dismiss the complaint insofar as asserted against them. The Supreme Court granted both motions and dismissed the complaint in its entirety. We affirm.

The Supreme Court properly directed the dismissal of the sixth cause of action, asserted against the Collier defendants, which alleged a violation of Judiciary Law § 487, which "requires, among other things, an act of deceit by an attorney, with intent to deceive the court or any party" (Curry v Dollard, 52 AD3d 642, 644). The plaintiff’s allegations regarding an act of deceit or intent to deceive are conclusory and factually insufficient. In any event, the evidentiary material the Collier defendants submitted in support of their motion disproved the plaintiff’s allegations (see Siskin v Cassar, 122 AD3d at 717; Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P.C., 82 AD3d 652, 652; Curry v Dollard, 52 AD3d at 644; Lazich v Vittoria & Parker, 189 AD2d 753, 754)."

Settlement brings the end of a litigation, and sometimes bliss.  Other times settlement brings remorse.  Parties must sometimes be pushed into settlements, and an inherent conflict between the attorney and the client might surface when their interests diverge at settlement. 

In Salazar v Sacco & Fillas, LLP  2014 NY Slip Op 00980 [114 AD3d 745]  February 13, 2014
Appellate Division, Second Department  the client puts forth a credible account of being bullied into settlement with false claims that he owed fees to the attorney and could be personally liable if he did not settle.

"The plaintiff retained the defendants Sacco and Fillas, LLP (hereinafter the law firm), and attorneys Tonino Sacco and Elias Nikolaos Fillas, who allegedly were partners in the law firm, to represent him as a plaintiff in a personal injury action and to represent two corporate entities that he controlled, Always First, Inc., and Always Fast, Inc. (hereinafter together the Always companies), in connection with certain commercial litigation.

The law firm settled the personal injury action on behalf of the plaintiff, and received certain settlement proceeds on the plaintiff’s behalf. Thereafter, the plaintiff and the Always companies, as "the client," and the law firm entered into an agreement (hereinafter the settlement agreement). The settlement agreement provided that, in exchange for the law firm’s agreement to "discount outstanding balances" due the law firm from the Always companies, "the client" agreed to give up all rights to certain sums due "the client" from three enumerated litigations.

The plaintiff thereafter commenced the instant action, seeking to recover damages he allegedly sustained as a result of the defendants’ legal malpractice, breach of contract, and fraud. The plaintiff alleges, inter alia, that the defendants breached the retainer agreement relating to the personal injury action in that they intentionally failed to pay him the settlement funds from that [*2]action. The plaintiff also alleges that he was fraudulently induced into signing the settlement agreement. The defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7). The Supreme Court, upon concluding that the complaint alleged intentional acts only, granted the defendants’ motion only insofar as it sought to dismiss the first cause of action, sounding in legal malpractice. The defendants appeal.

When assessing a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action, "the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Minovici v Belkin BV, 109 AD3d 520, 521 [2013]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Treeline 990 Stewart Partners, LLC v RAIT Atria, LLC, 107 AD3d 788, 791 [2013]).

The complaint adequately states a cause of action against the defendants sounding in breach of contract.

To state a cause of action sounding in fraud, a plaintiff must allege that "(1) the defendant made a representation or a material omission of fact which was false and which the defendant knew to be false, (2) the misrepresentation was made for the purpose of inducing the plaintiff to rely upon it, (3) there was justifiable reliance on the misrepresentation or material omission, and (4) injury" (Selechnik v Law Off. of Howard R. Birnbach, 82 AD3d 1077, 1078 [2011]; see McDonnell v Bradley, 109 AD3d 592, 592-593 [2013]). In the instant matter, the complaint alleged that Fillas, one of the attorneys representing the plaintiff and the Always companies, made certain false statements, including, inter alia, misrepresenting the amount of past-due attorney’s fees owed by the Always companies, and falsely stating, in effect, that he could sue the plaintiff personally for the sums allegedly owed by the Always companies. The complaint further alleged that these statements were known by Fillas to be false at the time they were made, and were intended to deceive, coerce, and induce the plaintiff into entering into the settlement agreement, and that the plaintiff relied on these statements to his detriment. Accordingly, these allegations were sufficient to state a cause of action alleging fraud against Fillas and the law firm (see Partnership Law §§ 24, 25, 26 [e]; Rabos v R&R Bagels & Bakery, Inc., 100 AD3d 849 [2012])."

The basic rules of summary judgment, well understood and well settled must be followed.  Whether its the need for a person with knowledge to give an affidavit, or that you need to provide prima facie entitlement to get the court to look at your papers, the basics must be followed. 

Cullin v Spiess  2014 NY Slip Op 07975 [122 AD3d 792]  November 19, 2014  Appellate Division, Second Department is one example.   "The plaintiff commenced this action against the defendant, her former attorney, alleging, inter alia, that he committed legal malpractice, made negligent misrepresentations, and violated Judiciary Law § 487, in connection with the settlement of a contested probate proceeding in which the defendant represented the plaintiff. The plaintiff moved for summary judgment on the complaint and the defendant cross-moved for summary judgment dismissing the fourth, sixth, eighth, and twelfth causes of action, all of which alleged violations of Judiciary Law § 487 (1). The Supreme Court denied the plaintiff’s motion and granted the defendant’s cross motion.

The plaintiff failed to demonstrate her prima facie entitlement to judgment as a matter of law on the complaint. The plaintiff failed to submit, with her moving papers, an affidavit by a person with knowledge of the facts (see CPLR 3212 [b]; Currie v Wilhouski, 93 AD3d 816, 817 [2012]; Menzel v Plotnick, 202 AD2d 558, 559 [1994]). The affirmation of the plaintiff’s attorney, who did not have personal knowledge of the facts, was without probative value, and the remaining exhibits were insufficient to support the motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]; Rivers v Birnbaum, 102 AD3d 26 [2012]; 1911 Richmond Ave. Assoc., LLC v G.L.G. Capital, LLC, 60 AD3d 1021, 1022 [2009]; Menzel v Plotnick, 202 AD2d at 559).

In contrast, the defendant demonstrated his prima facie entitlement to judgment as a matter of law dismissing the fourth, sixth, eighth, and twelfth causes of action alleging that he violated Judiciary Law § 487, by establishing that there was no evidence of his alleged intent to deceive the plaintiff in connection with the settlement (see Dupree v Voorhees, 102 AD3d 912 [2013]; [*2]Boglia v Greenberg, 63 AD3d 973, 975 [2009]; Pui Sang Lai v Shuk Yim Lau, 50 AD3d 758 [2008]; Knecht v Tusa, 15 AD3d 626, 627 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint and properly granted the defendant’s cross motion for summary judgment dismissing the fourth, sixth, eighth, and twelfth causes of action. Skelos, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur."

One of the recent limitations on legal malpractice cases has been a strict adherence to the need for pecuniary loss.  The Court of Appeals held that even incarceration by itself was insufficient. Dombrowski v Bulson 2012 NY Slip Op 04203 [19 NY3d 347

]Here in Fountain v Ferrara  2014 NY Slip Op 03947 [118 AD3d 416]  June 3, 2014 Appellate Division, First Department we see that an arrest and the loss of a job is good enough.

"Plaintiff’s deposition testimony that he was employed by a nursing home in 1998 when he was arrested, together with his bill of particulars, were sufficient to raise a triable issue of fact as to whether he sustained pecuniary losses resulting from the alleged legal malpractice (see D’Agrosa v Newsday, Inc., 158 AD2d 229, 238 [2d Dept 1990]).

Defendants failed to preserve their argument that plaintiff may not rely upon his deposition testimony since such deposition was taken in an action in which they were not parties and were not represented (see Matter of Brodsky v New York City Campaign Fin. Bd., 107 AD3d 544, 545 [1st Dept 2013]). In any event, the argument is unavailing, since defendants’ absence at the time of the deposition merely renders the deposition transcript hearsay as to them (see Rugova v Davis, 112 AD3d 404 [1st Dept 2013]), and "hearsay evidence may be considered to defeat a motion for summary judgment as long as it is not the only evidence submitted in opposition" (O’Halloran v City of New York, 78 AD3d 536, 537 [1st Dept 2010]). Here, plaintiff also submitted his bill of particulars, and "factual allegations contained in a verified bill of particulars . . . may be considered in opposition to a motion for summary judgment" (Johnson v Peconic Diner, 31 AD3d 387, 388 [2d Dept 2006]). Concur—Tom, J.P., Renwick, Andrias and Freedman, JJ."

An account stated claim for fees is one in which the attorney says:  "I’ve billed you, and sent invoices on a regular basis.  You did not object.  Since you did not object, you have agreed that the bills are fair.  Now, pay them."  Courts very often enforce this principal in favor of the attorney.

So it is in Schlenker v Cascino  2015 NY Slip Op 00666  Decided on January 29, 2015  Appellate Division, Third Department. 

"Plaintiff’s legal representation later expanded to include other related matters and, in January 2010, defendants became delinquent in

their payment of counsel fees. Plaintiff withdrew from representation in 2011 and commenced this action seeking, among other things, to recover on an account stated. Defendants joined issue and counterclaimed for legal malpractice. Supreme Court (Teresi, J.) granted plaintiff’s motion for summary judgment on his account stated cause of action. Supreme Court (Platkin, J.) subsequently dismissed the legal malpractice counterclaim at trial and thereafter entered a judgment awarding plaintiff $52,480.94 in counsel fees plus $8,126.64 in prejudgment interest, as well as $14,762.37 in costs and disbursements. This appeal by defendants ensued.

Defendants do not contest the dismissal of their legal malpractice counterclaim. Rather, they argue only that summary judgment was improperly awarded on the account stated cause of [*2]action. We cannot agree. Plaintiff submitted proof that he provided defendants with invoices for services rendered and that he received no objection to the bills. Plaintiff also supplied the emails and letters to and from Cascino reflecting plaintiff’s continuing work for defendants, his repeated requests for payment, and the lack of any objection by defendants to the work performed or the amounts billed. This evidence was sufficient to carry plaintiff’s initial burden on his motion (see Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163 [2013]; Levine v Harriton & Furrer, LLP, 92 AD3d 1176, 1178-1179 [2012]; J.B.H., Inc. v Godinez, 34 AD3d 873, 875 [2006]), and Cascino’s "self-serving, bald allegations of oral protests were insufficient to raise a triable issue of fact as to the existence of an account stated" (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; see Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d at 1163-1164; Antokol & Coffin v Myers, 86 AD3d 876, 877 [2011])"

Plaintiff brings a legal malpractice case against attorney and alleges that the attorney did not timely file a notice of appeal, that the underlying case was dismissed on discovery grounds ant that the mistake was by the attorney, and that the attorney failed to convey a settlement offer.  Supreme Court considers the motion and finds questions of fact.  Defendant does not use an expert.

The Appellate Division, with no reasoning presented, turns the decision on its head, and grants summary judgment.  Why?

Pedote v Kelly  2015 NY Slip Op 00737  Decided on January 28, 2015  is one in a series of cases the  Appellate Division, Second Department has summarily reversed and dismissed.  There is rarely any real explanation.    "The defendant attorney represented the plaintiffs in an action against the owner of a manufactured home park and in eviction proceedings. The plaintiffs commenced this action to recover damages for legal malpractice, alleging, inter alia, that the defendant failed to file a timely notice of appeal from an order adverse to them, failed to comply with discovery, and failed to communicate to them a settlement offer. The defendant moved for summary judgment dismissing the complaint and for the imposition of sanctions pursuant to 22 NYCRR 130-1.1(a), and the plaintiffs cross-moved to amend the complaint. The Supreme Court denied the defendant’s motion and granted the plaintiffs’ cross motion.

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the breach of such duty was the proximate cause of the plaintiff’s damages" (Portilla v Law Offs. of Arcia & Flanagan, 112 AD3d 901, 901; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Soliman v O’Connor, McGuinness, Conte, Doyle & Oleson, 118 AD3d 866, 867). "To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice" (Scartozzi v Potruch, 72 AD3d 787, 789-790; see Biberaj v Acocella, 120 AD3d 1285, 1286).

Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not fail to exercise the skill and knowledge commonly possessed by a member of the legal profession. In that respect, the defendant demonstrated that he filed a timely notice of appeal from an order adverse to the plaintiffs, that the failure to comply with discovery was the result of the plaintiffs’ decision to retain a different attorney and concomitant failure to cooperate with him, and that no settlement offer was ever communicated to him. In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint (see Guerrera v Zysk, 119 AD3d 647, 648; Soliman v O’Connor, McGuinness, Conte, Doyle & Oleson, 118 AD3d 866)."

OK, so you own a home in the NY Metropolitan area, and have some land.  Houses around here have a half-acre, or an acre or even 2-3 acres.  That’s a lot of land around here.  Now imagine you have so much land that you and the golf course next door are arguing over a mere 5 acres between you that the surveyors cannot agree upon.  Is it yours or theirs, and is it legal malpractice not to raise an adverse possession defense?

This is the situation in Owens v Andruschat  2015 NY Slip Op 30087(U)  January 26, 2015  Supreme Court, Wyoming County  Docket Number: 39094  Judge: Michael M. Mohun.  "In 2003, Thomas Brahaney, an adjoining landowner, sued the plaintiffs in an action to quiet title to his property [the underlying action]. At the time, the plaintiffs owned a parcel of land of a little less than 50 acres in Arcade, New York, on which they had been operating a public golf course. Brahaney’s similarly sized parcel lay immediately to the east. In the underlying action, the line that Brahaney claimed for his western boundary [the plaintiffs’ eastern boundary] was some 70 feet west from the place where the plaintiffs believed it to be. Significantly, Brahaney’s line encroached upon areas used by the plaintiffs for their golf course. Brahaney asked the Court to declare that he owned the disputed strip along the boundary line, and also that it award him damages for the plaintiff’s timber
cutting and other actions in the strip.

Both parties claimed to own the strip in the underlying action, the plaintiffs having interposed a counterclaim seeking a declaration in their favor. Notably, the deed descriptions of both parcels were entirely consistent with each other. It appears that the discrepancy in the placement of the boundary line was traceable to a large extent to a difference of opinion among the surveyors. This is shown clearly on the Map and Survey of James L. Brown, dated February 27, 2003, which the plaintiffs have attached as an exhibit to their complaint in this action. Notations in Brown’s map show both a "Deeded Division Line," and a "Division Line Between Owens and Brahaney per Gillen [a previous surveyor]." The "Deeded Division Line" on the map coincides with Brahaney’s claim in the underlying action, and the line "per Gillen" coincides with the plaintiffs’ claim. Brown’s map also includes reference to the remnants of an old barbed wire fence running along part of the "per Gillen" line. The plaintiffs’ surveyor, John Gillen, stated in his trial testimony that he viewed this fence as an important indicator of a longstanding line of occupation used by the property owners, and on this basis he concluded that the eastern boundary of the plaintiffs’ property should be placed on the line near where the remnants of the fence were found. 

The defendants, Thomas E. Andruschat, Esq., and his former law firm, represented the plaintiffs in the underlying action. After a non-jury trial, the Court found in favor of Brahaney, declaring him the owner of the disputed strip and awarding him damages. In their complaint, the plaintiffs allege that Mr. Andruschat committed malpractice by failing to raise the defense of adverse possession at the trial. The defendants deny that malpractice occurred and assert that adverse possession was not viable as a defense in the underlying action. 

The defendants contend that Mr. Andruschat skillfully handled the trial of the underlying action, and that he correctly determined that an adverse possession defense lacked merit and would not succeed. They argue that Andruschat’s decision to base the trial defense on the doctrine of
practical location of a boundary line, rather than on the doctrine of adverse possession, was a reasonable strategic choice under the circumstances. They further argue that due to the fact that the plaintiffs later lost ownership of their entire parcel through foreclosure, they are unable to prove that they sustained actual ascertainable damages as a result of the alleged malpractice.

Thus, the plaintiffs would not have been able to show actual possession of the strip after 1989, either. Moreover, at no time, either before or after 1989, did the plaintiffs activities within the strip fulfill the added requirement of former RPAPL §522 that the property in question must be either "usually cultivated or improved," or "protected by a substantial inclosure." Lastly, the fact that the plaintiffs offered the buy Brahaney’s entire parcel in May of 1996 presented an insurmountable obstacle to any attempt to raise at trial an adverse possession defense premised on the plaintiffs use of the strip after 1989. The purchase offer made within the limitations period constituted an "overt acknowledgment of title in another" which negated the element of hostility required to establish adverse possession (Walling, supra; Larsen v. Hanson, 58 A.D.3d 1003, 1004 [3rd
Dept., 2009]). "