Judiciary Law 487 does not have special pleading requirements as does Fraud.  It has not in the past been subject to CPLR 3016.  It is not a species of Fraud…it is the common law.  However, courts are general not friendly to JL 487 and find a plethora of ways to dismiss.  Betz v Blatt
2014 NY Slip Op 02554 [116 AD3d 813]  April 16, 2014  Appellate Division, Second Department is one such example. 

It’s an estate matter in which the first executor looted the estate and suffered a surcharge of more than $1 million.  When executor 2 comes into play, a legal malpractice case is started against the attorney for executor 1.  It falters.  The JL 487 claim is dismissed on pleading grounds.  Its the 15th cause of action.

"The Supreme Court properly dismissed the second and seventh causes of action, which alleged breach of fiduciary duty, the third, eighth, and thirteenth causes of action, which alleged fraud and breach of trust, and the fourth and ninth causes of action, which sought disgorgement and restitution of attorneys’ fees, which were all based on the same facts as the causes of action to recover damages for legal malpractice, and did not allege distinct causes of action (see Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120 [2011] Weiss v Manfredi, 83 NY2d 974, 977 [1994] Financial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1021 [2010] Mahler v Campagna, 60 AD3d 1009, 1012 [2009]). Likewise, the court properly dismissed the third, fifth, eighth, tenth, thirteenth, and fifteenth causes of action, since they were not pleaded with the requisite degree of particularity (see CPLR 3016 [b] Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009] Parekh v Cain, 96 AD3d 812, 816-817 [2012] Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d at 1120)."

Defendants took a very aggressive approach to a legal malpractice case, and in a turnaround, the Court awarded summary judgment to plaintiff.  One wonders what would have happened if no motion was made in the first place.

Walker v Kramer   2014 NY Slip Op 33372(U)  December 22, 2014  Supreme Court, Suffolk  County  Docket Number: 5219/07  Judge: Paul J. Baisley is a discussion of the ";law of the case," how Appellate Division decisions affect Supreme Court decision making, and what the "but for" principal of legal malpractice means.

"Plaintiff commenced this action to recover damages she allegedly suffered as a result of
defendants’ legal malpractice. By an order of this Court dated December 1 1,2007, the complaint was dismissed in its entirety as against defendants Debra L. Rubin, Esq., Gayle Rosenblum, Esq.,
Rubin and Rosenblum, PLLC, and Kramer & Rubin, PLLC (Walker v Kramer, Sup Ct, Suffolk
County, December 1 1,2007, Baisley, J., Index No. 52 19/07). Although the order dismissed the
claims against Lynne Adair Kramer, Esq. and Kramer & Rabinowitz, LLC, pursuant to CPLR
R. 321 1 (a)( 1) and (7), the Appellate Division modified the order, reinstating the legal malpractice
claims against them (Walker v Kramer, 63 AD3d 723,880 NYS2d 677 [2d Dept 20091). In its
December 1 1,2007 decision, this Court denied plaintiffs application for summary judgment,
indicating that it was premature as no answers had been filed. Discovery having been completed,
and a note of issue having been filed, defendants now move for summary judgment dismissing the
complaint. They maintain that plaintiff has not sustained any damages, thus she cannot prove her
claim for legal malpractice. Plaintiff opposes their motions and interposes a cross-motion, asking
the Court to grant leave to renew her prior summary judgment motion and upon such renewal
grant summary judgment in her favor. She claims that the Appellate Division decision (id.)
constitutes the “law of the case” as it refers to liability by reason of defendants’ legal malpractice.
On May 14,2003, by written agreement, plaintiff retained the law firm of Wachtel &
Rabinowitz to represent her in a divorce action she commenced against her former husband.
Some eleven days thereafter, Gregory Rabinowitz, Esq. merged his law practice with that of
Lynne Kramer, Esq. and formed Kramer & Rabinowitz, LLC which represented plaintiff until
March 24,2006. On April 4,2004 plaintiff entered into a stipulation settling her matrimonial
action, which was incorporated but not merged into a judgment of divorce dated November 18,
2004 and filed with the County Clerk on December 7,2004. Pertinent portions of the stipulation
of settlement stated:

Within ten (10) days from the execution of the within Stipulation, the
plaintiffs attorney shall prepare all of the necessary documents for the
defendant, to transfer his right, title and interest in and to the premises to
the Plaintiff and Defendant as “joint tenants in common” by Bargain and
Sale Deed With Covenants Against Grantors Acts, which deed and
transfer papers shall be immediately filed at the defendant’s sole cost and
expense. Plaintiffs attorney shall also prepare a Bargain and Sale Deed
With Covenants Against Grantors Acts and any additionally required
transfer documents necessary to transfer the residence from the parties as
joint tenants in common to the defendant alone, which will be executed by
the parties and held by Plaintiffs attorneys in escrow subject to the further
terms and provisions hereinafter set forth. Within 5 days from execution of
this Stipulation Defendant shall pay Plaintiffs attorneys $500 to prepare
the above deeds and shall thereafter pay the filing fees within 7 days of
presentment of the title bill [ .] "

"The parties do not dispute that plaintiffs former husband paid defendant Kramer & Rabinowitz,
LLC the $500.00 legal fee required of him for the preparation of the deeds for the marital residence as mandated by the stipulation. However, also undisputed is the fact that no deed was ever  prepared or filed by defendant Kramer & Rabinowitz, LLC in connection therewith. It appears that plaintiff’s former husband refinanced the marital premises shortly after the parties were divorced, using the proceeds to satisfy an existing mortgage and retaining approximately $800,000.00 for his own devices. Plaintiff alleges that she never received her $300,000.00 tax free equitable distribution payment from her husband and that the failure of the defendants to secure her payment by preparing and recording a deed in to her as stated in the stipulation of settlement amounted to legal malpractice for which she should be compensated."

"Although plaintiff may have received more than was originally anticipated by way of maintenance and carrying charges, there is no question but that she did not receive the equitable share of marital property to which she was entitled. Defendants’ arguments that plaintiff suffered no  damages because she was paid a “windfall” of maintenance and carrying charges is unpersuasive. Moreover, such an argument is specious and speculative. Inasmuch as plaintiff was entitled to receive a “lump sum” payment of equitable distribution, the parties could just as easily speculate that she would have invested that money and made “millions” in a business or other investment. Defendants’ failure to secure that payment cannot be set aside by their claims of “offset.” The fact that the stipulation provided for longer duration maintenance and for the payment of carrying charges by plaintiffs former husband in the event he failed to pay the “lump sum” equitable distribution award was not in lieu of the equitable distribution, but was an inducement for him to make the payment in a timely fashion. Thus, defendants failed to prove their claim that plaintiff did not sustain any damages as a result of their failure to secure the equitable distribution payment by preparing the deed as provided by the stipulation of settlement, and summary judgment dismissing the complaint is denied. "

"The Appellate Division found that there was insufficient documentary evidence submitted by defendants in support of their earlier motion to dismiss, and that the facts in the complaint stated a cause of action for legal malpractice. The Appellate Division did not, however, determine the merits of the legal malpractice claim. Thus, the doctrine of res judicata is inapplicable and does not bind this Court (see Wilson v New York City Hous. Auth., supra). However, inasmuch as plaintiff has proven through her submissions that “but for” defendants’ failure to prepare and record a deed securing her equitable distribution award, she would have been able to receive. her award through a sale of the premises prior to her former husband’s encumbering the marital residence with mortgages in excess of its value, she is entitled to summary judgment in her favor and her motion is granted. "

Legal malpractice law is quite protective of attorneys.  One institutional reason is that is is self-created and self-regulated by attorneys.  An example of the protection is the "privity" rule, which states that one may not sue an attorney for legal malpractice, with very limited exceptions, unless there is a contractual relationship between plaintiff and attorney. There must be privity of contract.

Risk Control Assoc. Ins. Group v Maloof, Lebowitz, Connahan & Oleske, P.C.  2014 NY Slip Op 00419 [113 AD3d 522]  January 23, 2014  Appellate Division, First Department is an example.

"Plaintiff, a claims administrator for an insurer, commenced this action alleging legal malpractice against defendants, who were retained to represent the insurer in a personal injury action. Acknowledging that it is not in privity with defendants, plaintiff contends that it may bring the cause of action by virtue of its relationship of near privity with them (see Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59, 60-61 [1st Dept 2007]). However, plaintiff does not allege that it had a contractual obligation to pay for the loss in the personal injury action (compare Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172 [1st Dept 2004] [excess insurer alleged relationship of near privity with counsel hired by primary carrier to represent defendant in underlying action]). Nor does it allege that it sustained actual damages because of this obligation (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Similarly, plaintiff’s factual allegations do not suffice to state an equitable subrogation cause of action against defendants (see Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581 [1995]). "

A Happy New Year to all.

Napoli Kaiser Bern is a well known class action law firm that is currently said to be breaking apart with melodramatic reports of sexual escapades, lack of fidelity and general ennui.  Whether the partners will make up, or part ways, they all face some problems in the Fen-Phen litigation, as many of the clients allege that they misstated expenses, and referring attorneys claim fraud. 

In Appel-Hole v Wyeth-Ayerst Labs.  2014 NY Slip Op 33170(U)  November 21, 2014  Supreme Court, New York County  Docket Number: 105122/09  Judge: Charles E. Ramos discusses some of the pleading issues and the Judiciary Law 487 applications.

"This action arises out of the settlement of mass tort litigation known as New York Diet Drug  itigation. In the original action (Original Action) , 1 plaintiffs asserted claims of personal injury due to the ingestion of ~fen-phen" diet drugs. In November 2001, the Original Action was settled, and the settlement approved by a predecessor court, by Justice Helen Freedman. At or around this time, the concern was raised that the settlement and disbursements obtained had been  manipulated.

Shortly after approval of the settlement, P&W commenced an action against NKB alleging  misrepresentations in connection with that settlement, entitled P&W v Napoli, and bearing the index number 605388/01 (P&W Action) . This Court largely dismissed the action on the ground that P&W lacked standing to assert claims of breach of contract between the referred clients and NKB, and because it constituted a collateral attack on the settlement, which was affirmed (Parker & Waichman, 29 AD3d 396 [1st Dept 2006]). A claim for an accounting remains in the pending P&W
Action.  and misallocated by settling counsel, defendants herein, Napoli Bern & Kaiser, LLP (NKB), to clients other then those referred to by Parker & Waichman, LLP (P&W). At the time that P&W referred clients, NKB agreed to represent them and to share attorneys’ fees with P&W.

P&W alleges that NKB committed fraud to deprive it of its contractual share of attorneys’ fees, by deliberately allocating more settlement funds to its own direct clients then to comparable referred cases in order to minimize fee-splitting with P&W, and assessed bogus disbursements and expenses to the referred clients, which decreased the net settlement amount used to calculate P&W’s fees. 

The Court has reviewed the allegations contained in Exhibit A annexed to the third amended  Intervenor complaint that the intervenor defendants maintain do not meet the heightened pleading standards of CPLR 3016 (b). For instance, the third amended intervenor complaint alleges
that John Bagglio repeatedly expressed dissatisfaction with the settlement amount being offered via NKB, and requested that NKB renegotiate a better settlement offer. Nonetheless, in a series
of communications with John Bagglio, NKB misrepresented that he "had no case," that his case faced "serious consequences" if he did not return the release form and accept the settlement amount being offered, and that he would "get nothing" if his case went to court. NKB also allegedly misled him concerning the settlement procedure, how the settlement offer was arrived at, and falsely put him in fear of losing any potential recovery if he did not accept a lower settlement amount, which the complainant relied upon in accepting a low settlement amount. The allegations of the remaining intervenor plaintiffs which defendants maintain are insufficient contain either a greater or lesser level of detail, describing the manner in which the defendants misrepresented how each individual settlement was arrived at, and how plaintiffs were pressured into settling the
case based on terms which were false. Taking the allegations in the light most favorable to the
plaintiffs, the Court concludes that, under the circumstances,  sufficient facts are alleged to permit a fact-finder to infer that the intervenor defendants falsely represented how each settlement was arrived at and the settlement process itself. True, with respect to many of the complainants, intervenor plaintiffs have not alleged specific details of each individual intervenor defendants’ conduct. Nonetheless, the third amended intervenor complaint alleges the basic facts to establish the elements of fraud, and adequately informs the defendants of the complained-of incidents (see Eurycleia Partners, L.P., Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). "

Plaintiff hires an attorney to handle a NJ accounting proceeding.  The case is dismissed on failure to engage in discovery.  The other side is granted costs and attorney fees if the case is brought once again.  Client hires attorney 2 to bring the action again.  Attorney 2 warns client of penalties which might accrue on second case.  Client goes ahead nevertheless. 

Client then sues both attorney 1 and 2.  Here are the results in  Bivona v Danna & Assoc., P.C.
2014 NY Slip Op 08948  Decided on December 24, 2014 Appellate Division, Second Department  along with    Bivona v Danna & Assoc., P.C.   2014 NY Slip Op 08947  Decided on December 24, 2014  Appellate Division, Second Department,

Legal Malpractice part of the case?  "Here, the defendants did not establish, prima facie, that the plaintiffs will be unable to prove at least one of the elements of legal malpractice (see Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716, 717; Bey v Flushing Hosp. Med. Ctr., 95 AD3d 1152, 1153). The defendants could not sustain their burden merely by pointing out gaps in the plaintiffs’ proof (see Kempf v Magida, 116 AD3d 736, 736; Alizio v Feldman, 82 AD3d 804, 805). Accordingly, contrary to the defendants’ contention, the Supreme Court properly denied their motion for summary judgment dismissing the complaint."

As to the Contribution and Indemnity:  ""In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Alva v Gaines, Gruner, Ponzini & Novick, LLP, 121 AD3d 724, 724 [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88). "A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only if documentary evidence utterly refutes [the] plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law’" (Indymac Venture, LLC v Nagessar, 121 AD3d 945, 945, quoting Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63).

The Supreme Court erred in denying that branch of the motion of the third-party defendant Minchew & Santner, LLP (hereinafter M & S), which was pursuant to CPLR 3211(a)(7) to dismiss the contractual indemnification cause of action in the third-party complaint insofar as asserted against it. The defendants third-party plaintiffs Danna & Associates, P.C., and Anthony S. Danna (hereinafter together the Danna defendants) did not allege the existence of such a contractual relationship, and it is undisputed that no contractual relationship existed between the Danna [*2]defendants and M & S (see Galvin Bros., Inc. v Town of Babylon, N.Y., 91 AD3d 715, 716; see also Reimold v Walden Terrace, Inc., 85 AD3d 1144, 1146). Accordingly, the Supreme Court should have granted that branch of M & S’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the contractual indemnification cause of action in the third-party complaint insofar as asserted against it.

The Supreme Court also erred in denying that branch of M & S’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action for common-law indemnification in the third-party complaint insofar as asserted against it. "The principle of common law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" (Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792, 796, quoting Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d 1073, 1077). "Common-law indemnification is warranted where a defendant’s role in causing the plaintiff’s injury is solely passive, and thus its liability is purely vicarious" (Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d at 796, quoting Balladares v Southgate Owners Corp., 40 AD3d 667, 671). "Thus, a party which has actually participated in the wrongdoing is not entitled to indemnification" (Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d at 796; see 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80). Here, the plaintiffs’ claims against the Danna defendants in the instant legal malpractice action are based upon the Danna defendants’ representation of the plaintiffs in an accounting proceeding they commenced in the Superior Court of New Jersey (hereinafter the New Jersey proceeding). In support of that branch of its motion which was pursuant to CPLR 3211(a)(1) to dismiss the Danna defendants’ cause of action for common-law indemnification in the third-party complaint insofar as asserted against it, M & S submitted copies of orders issued by the court in the New Jersey proceeding, which revealed that several claims asserted by the plaintiffs were dismissed because of the Danna defendants’ failure to conduct discovery. Those orders gave the defendants in the New Jersey proceeding the right to seek an award of costs and an attorney’s fee in the event that any of the plaintiffs commenced a new action against any of them for the same or similar relief. M & S also submitted a copy of its retainer agreement with the plaintiffs, in which M & S expressly advised the plaintiffs that the defendants in the New Jersey proceeding had the right to seek an award of costs and fees in the event a new action was commenced against them. The plaintiffs expressly acknowledged in the retainer agreement that they were nonetheless willing to retain M & S to recommence an action or proceeding against one or more of the defendants in the New Jersey proceeding. Thus, the documentary evidence submitted by M & S in support of its motion conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious. Accordingly, the Supreme Court should have granted that branch of M & S’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action for common-law indemnification in the third-party complaint insofar as asserted against it.

As to the contribution cause of action, " [i]n determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff’s damages’" (Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d 765, 766, quoting Rosner v Paley, 65 NY2d 736, 738; see Raquet v Braun, 90 NY2d 177, 183). " [T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors’" (Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d at 766, quoting Raquet v Braun, 90 NY2d at 183). "A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney’s negligence may have contributed to or aggravated the plaintiff’s injuries" (Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d at 766; see Schauer v Joyce, 54 NY2d 1, 3-6; Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 66 AD3d 993, 995; cf. Northrop v Thorsen, 46 AD3d 780, 783). Contrary to M & S’s contentions, the Supreme Court properly denied those branches of its motion which were pursuant to CPLR 3211(a) to dismiss the contribution cause of action in the third-party complaint insofar as asserted against it, since the defendants third-party plaintiffs properly stated a cause of action alleging that M & S’s legal malpractice contributed to the plaintiff’s damages, and documentary evidence did not conclusively establish a complete defense to that cause of action.

Borges v Placeres  2014 NY Slip Op 08910  Decided on December 23, 2014  Appellate Division, First Department is a compendium of mistakes in a legal malpractice.  This case was tried in Civil Court, was appealed to the Appellate Term, and from there to the Appellate Division.  Plaintiff lost in all spheres. 

Mistakes:  Failure to raise statute of limitations defense ;  bringing a motion for summary judgment too late, failure to enunciate a winning theory of liability, and failure to raise the issue of pecuniary damages at the trial. 

From the decision:  "Defendant’s motions to amend his answer to assert a statute of limitations defense and for summary judgment dismissing the complaint, made on the eve of trial eight years after the answer was served, were properly denied for lack of any excuse for the delay (see Van Damme v Gelber, 111 AD3d 408, 409-410 [1st Dept 2013], lv denied 23 NY3d 904 [2014]). The motion for summary judgment did not seek relief against a party whose timely motion for summary judgment was returnable the same day, and therefore did not fall within the exception permitting a court to entertain an untimely summary judgment motion (see Kershaw v Hospital for Special Surgery, 114 AD3d 75, 87-89 [1st Dept 2013]; Genger v Genger, 120 AD3d 1102 [1st Dept 2014]).

The charge and verdict sheet appropriately required that defendant’s negligence in this attorney malpractice action be a substantial factor in causing plaintiff’s harm (see Barnett v Schwartz, 47 AD3d 197, 204-205 [2d Dept 2007]). Contrary to defendant’s contention, the gravamen of plaintiff’s claim is not that defendant’s departures caused plaintiff to be denied an adjusted immigration status, tantamount to losing a case, but that those departures resulted in a deportation order and the failure to vacate it due to bad advice. Defendant’s argument that the damages awarded for the harm resulting from plaintiff’s 14 months in detention constitute non-pecuniary damages that are not recoverable in a legal malpractice action is unpreserved."

Just as in Legal Malpractice, the principal of continuing representation tolls the three year statute of limitations in accounting malpractice.  The rules of burden shift from defendant to plaintiff are similar too.

Schwartz v Leaf, Salzman, Manganelli, Pfiel, & Tendler, LLP    2014 NY Slip Op 08823  Decided on December 17, 2014  Appellate Division, Second Department discusses the rule.

"In an action, inter alia, to recover damages for negligence, accounting malpractice, fraud, breach of fiduciary duty, and unjust enrichment, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated May 13, 2013, as denied those branches of their motion which were pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the second cause of action, and the plaintiff Madeleine E. Schwartz cross-appeals, as limited by her brief, from so much of the same order as granted those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the first, third, fourth, fifth, sixth, seventh, eighth, and ninth causes of action.

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is time-barred, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see Bill Kolb, Jr., Subaru, Inc. v LJ Rabinowitz, CPA, 117 AD3d 978; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or was otherwise

inapplicable or whether the action was actually commenced within the applicable limitations period (see Ritty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674; Beizer v Hirsch, 116 AD3d 725; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358, 1359). Here, the defendants established their prima facie entitlement to dismissal of the complaint based on the expiration of the three-year statute of limitations applicable to the cause of action, inter alia, to recover damages for accounting malpractice (see CPLR 214[6]; Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d 603). In opposition, however, the plaintiffs raised a question of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation (see Howish v Perrotta, 84 AD3d 1312; Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 196; Rehberger v Garguilo & Orzechowski, LLP, 50 AD3d 760)."

Litigation, and legal malpractice litigation in particular is subject a vast number of technical rules, any of which can upset an otherwise meritorious case.  Attorneys make mistakes in these technical rules, hence legal malpractice.  Pro-se litigants make even more mistakes.  Hyman v Schwartz  2014 NY Slip Op 33274(U)  December 17, 2014  Supreme Court, New York County
Docket Number: 2014-1193 Judge: Eugene D. Faughnan is an example.

"The instant action was commenced by the filing of a Verified Complaint on March 10,2014. The complaint was filed against the three attorney defendants and their law firm (Schwartz, Licthen and Bright, PC or "SLB")). The firm has subsequently dissolved, and defendants Licthen and Bright have formed their own firm and defendant Arthur Schwartz (hereinafter "Schwartz") has his own practice. Defendant Schwartz filed a motion on April 4, 2014 seeking to dismiss the Complaint on res judicata grounds. Oral argument was heard on that motion on May 9, 2014. The Court granted the motion and dismissed the Complaint as against Schwartz and SLB. Defendants Licthen and Bright now also seek to dismiss the complaint as against them. They claim that Plaintiffs complaint is based on the same fact as another complaint she filed in 2012, bearing Index 2012-1186, which was dismissed for failure to state a cause of action. Accordingly, and similar to Schwartz and SLB, Licthen and Bright argue it should be dismissed as against them. Plaintiff contends that she should be allowed to amend her complaint to cure any defects in the sentences characterizing her claim. She also argues in her memorandum of law that the Court’s May 9, 2014 decision should be reversed in the interest of justice. However, that matter was not raised in the motion, and cannot be considered at this juncture. She also argues that Defendants Licthen and Bright should be found in default.
The Plaintiff commenced an action in March, 2012 against Schwartz, his two law partners, Licthen and Bright, and SLB. That case is Index No: 2012-1186. That complaint contained four causes of action: 1) a fee dispute, 2) negligent infliction of emotional distress, 3) intentional infliction of emotional distress, and 4) legal malpractice. In a Decision and Order filed December 20, 2012, this Court (Hon. Donald Cerio) concluded, with respect to Schwartz and the firm, that the motion to dismiss the fee dispute was denied, the claims for Negligent Infliction of Emotional Distress and Intentional Infliction of Emotional Distress were dismissed, and the claim for malpractice would not be dismissed. The Third Department, in a Memorandum and Order dated February 27, 2014, affirmed dismissal of the 2 causes of action and also granted dismissal of the fourth cause of action for legal malpractice. Hyman v. Schwartz et al. 114 AD3d 1110 (3rd Dept. 2014 ). Plaintiff thereafter made a motion to the Third Department, for reargument, or in the alternative, leave to amend the complaint, or permission to appeal to the Court of Appeals. The motion was denied by the Third Department on May 1, 2014. Plaintiff thereafter filed a motion with the Court of Appeals for leave to appeal, which was denied. Hyman v. Schwartz et al., 24 NY3d 930 (September 4, 2014).
Plaintiff filed another complaint (Index 2014-1059) on January 22, 2014 against Schwartz only for intentional infliction of emotional distress. That case was dismissed by this Court in a Decision and Order filed on September 3, 2014. The Court found that 2014-1059 arose out of the same facts and circumstances as the 2012 case, and was therefore barred by res judicata. The Court also denied Plaintiffs motion to re-plead in that case. 

After the Third Department’s decision of February 27, 2014, the Plaintiff filed another action against Schwartz, his two law partners and their firm. That is this case, Index No.: 2014- 1193, and was filed on March 10, 2014. There are two causes of action alleged in the March, 2014 suit, for legal malpractice and breach of contract. This Court determined that the claims against Schwartz and SLB in 2014-1193 arose from the same set of facts and circumstances as 2012-1186, and that since the 2012 case had been brought to conclusion, any other claims arising from the same transaction or series of transaction are barred, even if based upon a different theory. The allegations of the current complaint deal with the same set of facts as the 2012 case ,and recount a chronology of events from 2008 up to February, 2014. Thus, the complaint encompasses all the actions from the time from the inception of representation up to the filing of 2014-1193, in March 2014. This Court previously determined that 2014-1193 was barred by res judicata as against Schwartz and SLB, concluding that since the earlier claim in 2012 had been brought to a conclusion, all other claims arising from the same transaction or series of transactions are barred, even if based on a different theory. See, O’Brien v. City of Syracuse, 54 NY2d 353 (1981); Tovar v. Tesoros Prop. Mgt, LLC, 2014 NY Slip Op 5233 (3rd Dept. July 10, 2014).
The Court again concludes that this case, Index 2014-1193 is barred by the doctrine of res judicata, in that it contains the same core set of facts as those contained in Index 2012-1186.
That is true regardless of the theory advanced, be it legal malpractice or breach of contract.
Therefore, the motion of Defendants Lichten and Bright will be granted. "