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. "

In automobile accident cases, injured parties are due no-fault coverage and payments.  Insurance companies have the right to refuse to pay for medical treatment which is unrelated to the accident, and often refuse to pay.  Sometimes, the insurance company is correct,and sometimes it is incorrect.  The injured party’s remedy is a no-fault arbitration.  A no-fault arbitration has a hidden trap of collateral estoppel.  If the arbitration of a wrongful no-fault denial is lost, the entire personal injury case can be lost too.  Often, practitioners wait, resolve the personal injury case, and then arbitrate.

In Levy v Fischman  2014 NY Slip Op 51749(U)  decided on December 15, 2014  Appellate Term, First Department and Levy v Fischman  2014 NY Slip Op 51750(U)  Decided on December 15,   2014  Appellate Term, First Department we see the result.

"This legal malpractice action arises from defendants’ representation of plaintiffs in connection with personal injury and insurance claims relating to an automobile accident. Insofar as relevant to this appeal, plaintiffs allege that defendants, a law firm and its principal, agreed to "handle all medical bills and payments, including No-fault insurance and personal health insurance claims that related" to the underlying accident.

Defendants demonstrated entitlement to partial summary judgment dismissing so much of plaintiffs’ legal malpractice claim as alleged a failure by defendants to pursue arbitration of the denial of plaintiff Susan Levy’s claim for first-party no-fault benefits. Defendants demonstrated that their decision to forgo arbitration represented a reasonable litigation strategy (see Rodriguez v. Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551 [2011]), explaining that had the arbitration been pursued, any negative finding made therein as to Susan’s injury and/or condition could have negatively affected plaintiffs’ then-pending personal injury action (see Clemens v Apple, 65 NY2d 746 [1985]). "Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby exposing themselves to liability for malpractice" (Iocovello v Weingrad v Weingrad, 4 AD3d 208 [2004]).

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Christine Simmons in the New York Law Journal reports today on Stock v Schnader Harrison Segal & Lewis LLP  2014 NY Slip Op 33171(U)  December 5, 2014  Supreme Court, New York County  Docket Number: 651250/13  Judge: Melvin L. Schweitzer.  The case raises a "novel" question of intra-law office attorney privilege, and whether the client is able to pierce communications which become "at issue."  The answer from Supreme Court is "Yes."

"The Court has reviewed letters from counsel for the parties regarding defendants’ withholding of 24 documents listed on defendants’ privilege log as attorney-client communications, and as to one document, attorney work product. Plaintiff argues that the documents are not privileged as to him because defendants were representing him at the time, the subject of the communications was that very representation, the participants did not consider the communications to be confidential as to plaintiff, and they were aware that the continued representation would be conflicted. Defendants oppose, arguing that the communications are protected by the in-house attorney-client privilege. The court finds that the attorney-client and work product privileges do not protect any of the documents. Stock is suing law firm Schnader Harrison Segal & Lewis LLP. (Schnader), and partner Christine Carty (Carty) for malpractice and breach of fiduciary duty. The lawsuit arises from
defendants’ representation of Stock in connection with his departure from employment with
MasterCard International Incorporated (MasterCard) in 2008. Stock alleges that defendants
failed to advise him that his departure would accelerate the expiration date for his stock options
worth $5 Million from ten years to between ninety and one hundred and twenty days. "

"According to Stock, after his options expired, defendants advised him to assert claims against MasterCard and its options plan administrator Morgan Stanley Smith Barney (MSSB). during the ensuing arbitration, at which Schnader attorneys other than Carty represented Stock, MSSB’s counsel notified Schnader that it planned to call Carty as a fact witness concerning whether Schnader’s failures in its representation of Stock contributed to the monetary losses he was seeking from MSSB. Carty consulted with Schnader partner and General Counsel Wilbur Kipnes regarding her anticipated testimony, and possible ethical issues. She was prepared for the arbitration by Schnader attorney Cynthia Murray (Murray). Murray and Schnader attorney
Thomas Hecht (Hecht) were assigned to simultaneously represent Stock in the arbitration.
The deposition transcript excerpts, attorney notes, and additional exhibits submitted by
plaintiff show that when Carty, Kipnes, Hecht and Murray were communicating about Carty’s
upcoming testimony, they did not expect their communications to be confidential as to their
current client, Stock. Carty testified at her deposition that: she understood that anything she
stated to Murray would be disclosed to Stock; and she had no expectation one way or the other
that Hecht would keep her forwarded e-mail with Kipnes confidential as to Stock."

"Finally, the documents fall under the "at issue" waiver, and defendants cannot selectively disclose self-serving documents regarding the same subject matter. The "at issue" waiver of the privilege occurs where a party affirmatively places the subject matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of a claim or defense of the party asserting the privilege, and application of the privilege 3 [* 3]would deprive the adversary of vital information. Credit Suisse First Boston v Utrecht-America Fin. Co., 27 AD3d 253, 254 (1st Dept 2006). "

This case illustrates the potential mess a law firm can get itself into when it allows employees and their families to do business with them.  This particular case, Rodolico v Rubin & Licatesi, P.C.
2014 NY Slip Op 01308 [114 AD3d 923]  February 26, 2014  Appellate Division, Second Department led to legal malpractice litigation, commercial litigation, and most likely, a change of employees at the law firm.

"The plaintiff’s sister worked for the defendant law firm, in which the individual defendants are partners. During his sister’s employment, the plaintiff came to learn of an investment opportunity being organized by the defendants, which involved providing high interest, short-term loans for the development of real estate. The plaintiff and his wife decided to participate. Two bank checks, one of which was purchased by the plaintiff’s wife and bore only her name, were forwarded to the defendants for the purpose of making two loans. When these two loans were not repaid in full, the plaintiff commenced this action seeking to recover from the defendants the money that he was owed, claiming that the defendants effectively borrowed the money from him (first and second causes of action). In the alternative, the plaintiff sought damages for legal malpractice (third cause of action). "

"The Supreme Court also properly denied that branch of the defendants’ cross motion which was to dismiss the complaint pursuant to CPLR 3211 (a) (1). A motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Parkoff v Stavsky, 109 AD3d 646 [2013]; Benson v Deutsche Bank Natl. Trust, Inc., 109 AD3d 495 [2013]). Further, the evidence submitted in support of a motion pursuant to CPLR 3211 (a) (1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "must be documentary or the motion must be denied" (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2012], quoting Fontanetta v John Doe 1, 73 AD3d 78, 84 [2010] [internal quotation marks omitted]; see Rodolico v Rubin & Licatesi, P.C., 112 AD3d at 610). " ‘[N]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211 (a) (1)’ " (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714, quoting Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997 [2010]; see Rodolico v Rubin & Licatesi, P.C., 112 AD3d at 610; Suchmacher v Manana Grocery, 73 AD3d 1017 [2010]; Fontanetta v John Doe 1, 73 AD3d at 86)."

Many Judiciary Law 487 claims are challenged by motion before an answer is filed.  A high percentage of the motions are granted.  Mazel 315 W. 35th LLC v 315 W. 35th Assoc. LLC
2014 NY Slip Op 06252 [120 AD3d 1106]  September 23, 2014  Appellate Division, First   Department is one case in which the motion was denied.

"Defendant failed to demonstrate that the Judiciary Law § 487 cause of action has no merit. Plaintiff’s evidence showing that defendant presented false assignment documents for recordation in the City Register and sent a letter to the justice stating falsely that his client was the true owner of the notes and mortgages establishes an egregious act of intentional deceit of the court sufficient to support the cause of action (see Kurman v Schnapp, 73 AD3d 435, 435 [1st Dept 2010]). Defendant denies that he was involved in the recordation of the false documents and asserts that he did not intend to deceive the court. These assertions are insufficient to warrant judgment as a matter of law in defendant’s favor; they merely raise issues of fact. Moreover, the parties dispute many of the underlying facts of this matter, and no discovery has been conducted. Since defendant has not established that he had no intent to deceive, his contention that he is immune from liability because he was merely engaged in zealous advocacy is unavailing (see Lazich v Vittoria & Parker, 189 AD2d 753 [2d Dept 1993], appeal dismissed [*2]81 NY2d 1006 [1993]; Alliance Network, LLC v Sidley Austin LLP, 43 Misc 3d 848, 859-860 [Sup Ct, NY County 2014])."

In a textbook example of the reason for social policy. Tenore v Kantrowitz, Goldhamer & Graifman, P.C.  2014 NYSlipOp 06811 October 8, 2014 Appellate Division, Second Department shows why privity is an essential part of the legal malpractice world.  Were litigants able to sue their opponent’s attorney, there would be a legal malpractice case after every regular case.

Courts are very conservative with Judiciary Law 487 claims for the same reason.  Were a 487 claim to depend merely upon a bad outcome, and a claim that the opponent’s attorney was deceitful, there would be a separate docket of JL 487 cases in every county.  Hence, the short decision.

"The plaintiff commenced this action against the defendant law firm, which represented his former wife in a matrimonial action against him, alleging a violation of Judiciary Law § 487, fraud, and abuse of process. The plaintiff alleged, inter alia, that the defendant included in the underlying matrimonial action a cause of action to recover damages for assault that was without any factual basis, in an attempt to extract additional money from him in the course of that litigation. The defendant moved for summary judgment dismissing the complaint in the instant action, and the plaintiff cross-moved for leave to amend that complaint to add causes of action to recover damages for a violation of General Business Law § 349, prima facie tort, and malicious prosecution. The Supreme Court granted the defendant’s motion and denied the plaintiff’s cross motion.

The Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law § 487. The defendant demonstrated its prima facie entitlement to judgment as a matter of law by establishing its lack of intent to deceive (see Dupree v Voorhees, 102 AD3d 912, 913 [2013]). In opposition, the plaintiff failed to raise a triable issue of fact."

There is now a formal split between the First and Second Departments on the appropriate statute of limitations for Judiciary Law 487.  The second department recently determined that if the JL 487 claim is made in a case with a legal malpractice claim, then the statute of limitaitons is 3 years pursuant to CPLR 214(6).  The First Department, citing Melcher v. Greenberg Traurig LLP, holds that it is 6 years, as did the Court of Appeals.  In McDonald v Edelman & Edelman, P.C.  2014 NY Slip Op 04560 [118 AD3d 562]  June 19, 2014  Appellate Division, First Department it wrote:

"The fourth cause of action, which alleges a violation of Judiciary Law § 487, is timely because it was asserted within six years of plaintiff’s receipt of defendants’ June 2008 letter (see CPLR 214 [2]; Melcher v Greenberg Traurig, LLP, 102 AD3d 497 [1st Dept 2013]). However, the complaint nevertheless fails to state a cause of action under the statute, since it does not allege that plaintiff suffered any injury proximately caused by any deceit or collusion on counsel’s part, and no such injury can reasonably be inferred from the allegations (see Bohn v 176 W. 87th St. Owners Corp., 106 AD3d 598, 600 [1st Dept 2013], lv dismissed in part, denied in part 22 NY3d 909 [2013])."

So, which is it?

Police officer is out sick.  Police Department rule is that you must stay in your home, and they go to great lengths to check up on those officers.  In Pannone v Silberstein  2014 NY Slip Op 03944 [118 AD3d 413]  June 3, 2014  Appellate Division, First Department  the officer was subject to a disciplinary hearing and he was fired.  His remedy was an Article 78 challenging whether the decision was arbitrary and capricious.  That article 78 was lost because the attorney did not timely perfect.  Legal malpractice?  Violation of Judiciary Law 487?

No to both.  "To recover damages for legal malpractice, a [*2]plaintiff must demonstrate that the attorney defendant " ’failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (id.). The court below granted defendants’ motions for summary judgment, finding the "but for" element lacking because plaintiff would not have prevailed in the underlying article 78 proceeding. We agree.

The giving of false statements in the course of an official investigation has been upheld as a ground for dismissal from municipal employment (see Matter of Duncan v Kelly, 9 Misc 3d 1115[A], 2005 NY Slip Op 51558[U] [Sup Ct, NY County 2005] [also involved a GO-15 interview], affd 43 AD3d 297 [1st Dept 2007], affd 9 NY3d 1024 [2008]; see also Matter of Loscuito v Scoppetta, 50 AD3d 905 [2d Dept 2008], lv denied 13 NY3d 716 [2010]). There is no merit to plaintiff’s argument that the state of the law in 2000, when the article 78 proceeding was brought, would have dictated a different result (see e.g. Matter of Swinton v Safir, 93 NY2d 758, 763 [1999] [dishonest statements to police department investigators constituted an independent basis for dismissal]).

The cause of action based on Judiciary Law § 487 was properly dismissed inasmuch as the record does not establish a "chronic and extreme pattern of legal delinquency" (Kinberg v Opinsky, 51 AD3d 548, 549 [1st Dept 2008] [internal quotation marks omitted]). The breach of contract cause of action, which is based on defendants’ alleged failure to represent plaintiff in a professional manner, was also properly dismissed. A breach of contract claim premised on an attorney’s failure to exercise due care or to abide by general professional standards is nothing more than a malpractice claim (Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38-39 [1st Dept 1998]).

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