We’ve noted that more legal malpractice cases seem to be dismissed on CPLR 3211 grounds than those in other fields of the law.  Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo  2014 NY Slip Op 00087 [113 AD3d 587]  January 8, 2014  Appellate Division, Second Department looks like on of them. 

In this straightforward claim, plaintiffs retained attorneys to manage a 1031 Like-Kind exchange of real property, which would defer capital gain taxes.  One must arrange for an uninvolved 3d party to receive the sale proceeds and withhold them until a purchase of new property.  This did not happen.  Instead, Plaintiffs were drawn into an unrelated bankruptcy and lost significant amounts of money.

"The plaintiff commenced this action to recover damages allegedly sustained as a result of the defendants’ legal malpractice. As alleged in the complaint, the plaintiff retained the defendants to represent it in connection with the sale of certain real property and a related exchange of "like-kind property" pursuant to the Internal Revenue Code (see 26 USC § 1031). According to the allegations in the complaint, the plaintiff, based upon the defendants’ advice, selected LandAmerica 1031 Exchange Services, Inc. (hereinafter LandAmerica), as the qualified intermediary to hold a portion of the sale proceeds, totaling $5.5 million, for the exchange of like-kind property pursuant to 26 USC § 1031. The complaint alleged, inter alia, that the defendants negligently represented the plaintiff inasmuch as they reviewed, and advised the plaintiff to execute, an agreement with LandAmerica, under which the exchange funds were to be held in a commingled [*2]account and not a qualified escrow account or trust. Soon after the sale proceeds were transferred to LandAmerica, its parent corporation, LandAmerica Financial Group, Inc., declared bankruptcy. According to the complaint, the plaintiff’s funds were frozen for several years during the bankruptcy proceedings, and the plaintiff lost a portion of the funds because they were not held in a qualified escrow account or trust. The complaint further alleged that the plaintiff could not defer the taxes on the capital gains from the initial sale, as it did not have access to its funds to purchase a replacement property within the required 180-day period.

Prior to answering, the defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) based on documentary evidence, and pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. The Supreme Court granted the defendants’ motion to dismiss the complaint on both grounds.

The Supreme Court improperly granted the defendants’ motion to dismiss the complaint based on documentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint, "conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). Here, the retainer agreement submitted by the defendants did not conclusively establish a defense as a matter of law (see Harris v Barbera, 96 AD3d 904, 905-906 [2012]; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 811 [2011]; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38-39 [2006])."

We’ve said that legal malpractice issues are ubiquitous, and omnipresent.  That’s just another way of saying that where there are lawyers, and where they practice their human crafts, there will be mistakes and shortcomings.  This was true before the Magna Carta and is true today. 

One example of the evolving nature of legal malpractice issues is the Internet. Predictable only in science fiction, the Internet has come to color every part of our lives.  Use of the Internet in the age-old practice of trial law has set new standards.  So reports Anthony E. Davis in the New York Law Journal.  While he discusses the ethical issue of how one might correctly research jurors now sitting at a trial, he raises the point that failure to investigate may be legal malpractice.

"Duty to Investigate
The first question to be addressed is whether lawyers are under any duty to conduct any investigation of jurors. City Bar 2012-2 looked at this in the second segment of the opinion, including the following observation:
Lawyers have even been chastised for not conducting such research on potential jurors. For example, in a recent Missouri case, a juror failed to disclose her prior litigation history in response to a voir dire question. After a verdict was rendered, plaintiff’s counsel investigated the juror’s civil litigation history using Missouri’s automated case record service and found that the juror had failed to disclose that she was previously a defendant in several debt collection cases and a personal injury action. (Footnote omitted). Although the court upheld plaintiff’s request for a new trial based on juror nondisclosure, the court noted that "in light of advances in technology allowing greater access to information that can inform a trial court about the past litigation history of venire members, it is appropriate to place a greater burden on the parties to bring such matters to the court’s attention at an earlier stage." Johnson v. McCullough, 306 S.W.3d 551, 558-59 (Mo. 2010). The court also stated that "litigants should endeavour to prevent retrials by completing an early investigation." Id. at 559.
Earlier, in the introduction to the opinion, the city bar went even further, stating that: "Indeed, standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case."
Notably, ABA 466 is in agreement with this proposition. In footnote 3, ABA 466 cites to this statement in City Bar 2012-2 and to other sources, including Comment [8] to Model Rule 1.1, to the Johnson v. McCullough decision (supra), and to N. H. Bar Ass’n, Op. 2012-13/05, which, in common with Comment 8 to Model Rule 1.1, addresses attorneys’ obligation "to be aware of social media as a source of potentially useful information in litigation, to be competent to obtain that information directly or through an agent, and to know how to make effective use of that information in litigation."

Doctor is sued for medical malpractice, along with fellow doctor.  MLMIC, the largest insurer in the field settles the case for $ 3.2 Million.  Doctor’s liability is covered by the Carrier.  She sues the carrier and its attorney, Carter Conboy in Kaufman v Medical Liab. Mut. Ins. Co. 2014 NY Slip Op 07398  Decided on October 30, 2014  Appellate Division, Third Department.

Doctor sues because of a "united front" defense, in which one law firm defends all the doctors, and minimizes any "finger-pointing."  Doctor loses the legal malpractice case.

"Elements that plaintiff must prove in a legal malpractice action include that her attorney was negligent, she would have succeeded on the merits "but for" her attorney’s negligence and she sustained actual and ascertainable damages (see Dombrowski v Bulson, 19 NY3d 347, 350 [2012]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]; Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391 [2010]). On a motion for summary judgment, defendant has the initial burden of presenting evidence "establishing that plaintiff is unable to prove at least one of these elements" (Geraci v Munnelly, 85 AD3d 1361, 1362 [2011] [internal quotation marks and citation omitted]; see Guiles v Simser, 35 AD3d 1054, 1055 [2006]). "[I]f the movant is successful the opposing party must then submit proof in admissible form sufficient to create a question of fact requiring a trial" (Parmisani v Grasso, 218 AD2d 870, 871 [1995] [internal quotation marks and citation omitted]; see Country Club Partners, LLC v Goldman, 79 AD3d at 1391-1392). Supreme Court determined that defendant met its burden as to each of the elements of negligence, proximate cause and damages, and that plaintiff failed to submit sufficient proof to raise a triable issue as to all those elements.

Considering first the element of damages, the undisputed proof established that plaintiff did not have to pay any part of the verdict, which was covered in full by the insurer and hospital. Plaintiff’s contention that she sustained non-pecuniary damages, such as a taint on her reputation resulting from media and other coverage of the Norton verdict, is unavailing since "the established rule limit[s] recovery in legal malpractice actions to pecuniary damages" (Dombrowski v Bulson, 19 NY3d at 352; see Guiles v Simser, 35 AD3d at 1056; Wilson v City of New York, 294 AD2d 290, 292 [2002]). Plaintiff continued working at the hospital after the Norton verdict and, as her contract was coming to an end about a year later, plaintiff was offered a new contract. Indeed, Nguyen, who had been assigned more culpability than plaintiff, had her contract renewed. Although plaintiff did not like some of the changes in the terms of the new contract, those same terms were also made mandatory for other physicians and plaintiff was not singled out in such regard because of the Norton verdict. Defendant produced proof that plaintiff took the position during contract negotiations that she desired to significantly scale back or eliminate the obstetrics part of her practice at the hospital, a move that was opposed by the hospital’s other physicians. Plaintiff eventually elected to resign from the hospital rather than renew her contract. Her arguments that her difficulty in obtaining employment with comparable compensation and that subsequent potential increases in her malpractice premiums resulted directly from the Norton verdict are speculative and unsupported in this record (see generally Brodeur v Hayes, 18 AD3d 979, 981 [2005], lv dismissed and denied 5 NY3d 871 [2005]).

Defendant met its burden of establishing the absence of actual and ascertainable damages, and plaintiff failed to raise a triable issue on such element. Therefore, the legal malpractice claim was properly dismissed. It is not necessary to discuss the other elements of the legal malpractice claim found lacking by Supreme Court.

"

The statute of limitations is an extraordinarily powerful concept.  After a specific period of time, it’s just too late to sue, even though the defendant was totally and wholly wrong.  It’s just too late!  Its a completely arbitrary period of time, too.

So, courts have ameliorated the hardship from time to time.  One way of mitigating the harsh rule is that of "continuous representation" in legal malpractice.  It basically says that the S/L does not start to run until the attorney has completed the work for the client.  Of course there are many intricacies, too. 

This week, Matter of Lawrence  2014 NY Slip Op 07291   was decided on October 28, 2014
by the New York Court of Appeals, with a decision by Read, J.  It is very, very important for the contingent fee world, and has much to say about continuous representation.

"There is a difference between an attorney’s alleged malfeasance in the provision of professional services on his client’s behalf, and a dispute between an attorney and his client over a financial transaction, such as legal fees or, in this case, a gift. Simply put, when an attorney engages in a financial transaction with a client, by charging a fee or, as in this case, accepting a gift, the attorney is not representing the client in that transaction at all, much less representing [*11]the client continuously with respect to "the particular problems (conditions) that gave rise to plaintiff’s malpractice claims" against the attorney (id. at 11). The attorney and client are engaging in a transaction that is separate and distinct from the attorney’s rendition of professional services on the client’s behalf (see e.g. Woyciesjes, 151 AD2d at 1014-1015 [rejecting applicability of the continuous representation doctrine to the plaintiff’s claim that his former attorney improperly charged him a fee of 50% rather than one-third]).

We have never endorsed continuous representation tolling for disputes between professionals and their clients over fees and the like, as opposed to claims of deficient performance where the professional continues to render services to the client with respect to the objected-to matter or transaction. Nor do the rationales underlying continuous representation tolling support its extension beyond current limits.

Two rationales inform the rule. First, a lay person "realistically cannot be expected to question and assess the techniques employed or the manner in which [professional] services are rendered"; specifically, a client cannot "be expected, in the normal course, to oversee or supervise the attorney’s handling of the matter" (Greene v Greene, 56 NY2d 86, 94 [1982]). Thus, the client should not be burdened with the obligation to identify the professional’s errors in the midst of the representation as "[t]he client is hardly in a position to know the intricacies of the practice or whether the necessary steps in the action have been taken" (Siegel v Kranis, 29 AD2d 477, 480 [2d Dept 1968]). Relatedly, a client cannot be "expected to jeopardize his pending case or his relationship with the attorney handling that case during the period that the attorney continues to represent the person" as to the matter giving rise to the malpractice claim (Glamm, 57 NY2d at 94). Second, a client who becomes aware of an error should not be required to sue immediately since that would only "interrupt corrective efforts" (Borgia v City of New York, 12 NY2d 151, 156 [1962] [establishing the continuous treatment rule for medical malpractice]).

When a client pays a lawyer or gives the lawyer a gift, the lawyer is not — in that transaction — "perform[ing] legal services on the [client’s] behalf" (Greene, 56 NY2d at 95). As a result, requiring the client to dispute the payment or seek return of the gift within the ordinary limitations period does not force a lay person to undertake actions that he is ill-equipped to carry out; i.e., to "question and assess the techniques employed" by the professional, or evaluate "the manner in which the services are rendered" or "oversee or supervise the attorney’s handling of the matter" (id. at 94). Notably, clients are obligated to review attorney’s invoices on a timely basis, rather than wait until the representation ends before raising objections (see Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163 [2013] [an attorney or law firm may recover on a cause of action for an account stated "with proof that a bill, even if unitemized, was issued to a client and held by the client without objection for an unreasonable period of time(, and) need not establish the reasonableness of the fee since the client’s act of holding the statement without [*12]objection will be construed as acquiescence as to its correctness"] [internal quotation marks omitted])."

Client hires attorney and, let’s say, the relationship sours.  Client moves on to attorney 2 and there is a bad outcome to the litigation.  Who is responsible (if anyone)?  Is it attorney 1 or attorney 2 or both?

Tooma v Grossbarth   2014 NY Slip Op 07347  Decided on October 29, 2014  Appellate Division, Second Department is the exploration of this question, from the opposite persepctive.  Can attorney 1 successfully dismiss the case on the theory that Attorney 2 should/could have fixed the problem, but didn’t.  In this case attorney 1 fails, but others have succeeded.

"The defendants are an attorney and his law firm who represented the plaintiff in an underlying medical malpractice action that was commenced in December 2006. In the underlying action, the plaintiff alleged that he was injured as a result of medical malpractice arising from certain spinal surgery that he underwent on May 21, 2004, and the continuous "care and treatment" that he received until "at least June 18, 2004." In January 2012, while the underlying action was pending, it was brought to the attention of the Supreme Court in that action that the defendant Joel A. Grossbarth, the only practicing attorney associated with the defendant law firm Tognino & Grossbarth, LLP, was suspended from the practice of law. The Supreme Court stayed the underlying action until March 30, 2012, so that the plaintiff could retain new counsel. Thereafter, upon the motion of the defendants in the underlying action, the Supreme Court, in an order dated August 20, 2012, directed the dismissal of the complaint in the underlying action, based on the plaintiff’s failure to proceed to trial."

"The plaintiff contends that the defendants failed to timely join proper parties in the underlying action. Accordingly, the fact that the Supreme Court dismissed the complaint in the underlying action, which was asserted solely against parties that were allegedly not culpable to the plaintiff for improper medical treatment, and was based solely on the failure to proceed to trial, does not dispose of the plaintiff’s claim sounding in legal malpractice, since the order directing the dismissal of the complaint in the underlying action did not address the merits of the underlying action or the causes of action that the plaintiff may have had against the persons who were not joined as defendants in that action. Thus, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint in this action."

"The defendants argue that, had the plaintiff retained successor counsel in the underlying action, that counsel could have remedied any alleged negligence that the defendants might have committed in their capacity as initial counsel, thus breaking any causal link between the negligence of initial counsel and the plaintiff’s damages. We reject the defendants’ contention. Unlike the instant action, the cases upon which the defendants rely arise from matters where the relief sought by a party was an absolute right, or where control of the outcome of litigation was wholly in the hands of successor counsel (see DiGiacomo v Levine, 76 AD3d 946; Volpe v Canfield, 237 AD2d 282; see also Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; Ramcharan v Pariser, 20 AD3d 556, 557; Perks v Lauto & Garabedian, 306 AD2d 261; Albin v Pearson, 289 AD2d 272; Kozmol v Law Firm of Allen L. Rothenberg, 241 AD2d 484). In order to remedy the negligence allegedly committed by the defendants in their capacity as the plaintiff’s initial counsel in the underlying action, any subsequent counsel in that action would have needed far more than a [*3]reasonably sufficient period of time in which to litigate the issue of the nonjoinder of proper parties (see Grant v LaTrace, 119 AD3d 646). Rather, to remedy that alleged negligence, a substituted counsel, or the plaintiff pro se, would have had to successfully litigate a motion to join allegedly culpable parties as additional defendants in the underlying action approximately five years after the statute of limitations on the medical malpractice cause of action had expired (see CPLR 214-a, 203[b]). The record before us provides no evidence to support the defendants’ contention that such a motion would have been successful (see Stevens v Winthrop S. Nassau Univ. Health Sys., Inc., 89 AD3d 835, 836; Matter of Murphy v Kirkland, 88 AD3d 267; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443, 444)."

Many lawyers are disciplined, and some are disbarred over the conversion of their ward’s funds.  Guardianships are necessary for those who cannot manage their own finances, and for the most part are beneficial to the wards.  Sometimes, however, the existence of money just sitting there can be too much of a temptation.  So it was in United States Fire Ins. Co. v Raia  2014 NY Slip Op 07146  Decided on October 22, 2014  Appellate Division, Second Department. 

"The defendant Camille A. Raia was appointed guardian of the property of Andrea S., an incapacitated person (hereinafter the IP). Raia obtained a guardianship bond through the plaintiff, United States Fire Insurance Company (hereinafter US Fire), as surety. Subsequently, Raia’s law partner, the defendant Steven T. Rondos, began to handle the guardianship. During the course of the guardianship, Cavalcante & Company (hereinafter C & C), an accounting firm, was retained to prepare annual tax returns on behalf of the IP. Ultimately, Raia was removed as the guardian of the IP’s property as a result of a criminal investigation into the wrongful conversion of funds by Rondos. The court accepted an account stated as Raia’s final account for the period she acted as guardian of the IP’s property, and surcharged her in a certain amount. US Fire and the IP, through a successor guardian, entered into a stipulation by which the IP released US Fire from further liability under the bond and assigned all rights and causes of action to it in exchange for a payment in the amount of $1,100,000.

US Fire, on its own behalf and as the IP’s subrogee/assignee, commenced this action against, among others, Raia, Raia & Rondos, P.C., Rondos, and C & C. US Fire alleged, with respect to C & C, that it committed professional malpractice by failing to detect unlawful withdrawals made from the IP’s investment account and to report the accounting regularities. In its answer, C & C asserted cross claims against Raia, Rondos, and Raia & Rondos, P.C., seeking contribution and common-law indemnification. US Fire settled with Raia, Rondos, and Raia & Rondos, P.C., and thereupon executed a release in favor of Raia, and a separate release in favor of Rondos and Raia & Rondos, P.C.

Raia moved, inter alia, for summary judgment dismissing C & C’s cross claims insofar as asserted against her and pursuant to 22 NYCRR 130-1.1 for an award of attorney’s fees. Rondos and Raia & Rondos, P.C., separately moved, inter alia, for summary judgment dismissing C & C’s cross claims insofar as asserted against them. C & C opposed the motions and cross-moved for summary judgment on its cross claims insofar as asserted against Raia, Rondos, and Raia & Rondos, P.C. The Supreme Court, in effect, granted those branches of the motions and denied the cross motion.

Raia, Rondos and Raia & Rondos, P.C., demonstrated their prima facie entitlement to judgment as a matter of law on C & C’s cross claim for contribution insofar as asserted against them. "A release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108(a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules" (General Obligations Law § 15-108[b]). Here, US Fire, upon settling with Raia, Rondos and Raia & Rondos, P.C., executed a release in favor of Raia, and a separate release in favor of Rondos, and Raia & Rondos, P.C., and there is no evidence in the record indicating that the releases were not given in good faith. Thus, Raia, Rondos, and Raia & Rondos, P.C., established, prima facie, that they were released from liability to C & C for contribution (see Balkheimer v Spanton, 103 AD3d 603; Ziviello v Boyle, 90 AD3d 916, 917; Boeke v Our Lady of Pompei School, 73 AD3d 825, 826-827; Kagan v Jacobs, 260 AD2d 442, 442-443; Brown v Singh, 222 AD2d 392). In opposition, C & C failed to raise a triable issue of fact.

"

Deep v Boies  2014 NY Slip Op 07215  Decided on October 23, 2014  Appellate Division, Third Department  is the story of a plaintiff who lost an early start-up web site/application called "Aimster."  His claim is that it was taken from him by his attorney, the very powerful David Boies. 

When Plaintiff sued Boies and the firm, litigation ensued over missing documents, many missing documents.  How is a plaintiff to prove that the law firm was representing him when they no longer have any of the necessary documents?

"As detailed in our prior decision in this matter (53 AD3d 948 [2008]), plaintiff commenced this action in October 2005 alleging that defendant David Boies, defendant Boies, Schiller & Flexner, LLP (hereinafter BSF) and defendant Straus & Boies LLP engaged in certain acts of legal malpractice. Pertinent here, plaintiff alleged that Boies, BSF and Straus & Boies (hereinafter collectively referred to as defendants) misappropriated plaintiff’s file sharing software, known as Aimster, while serving as his counsel with regard to myriad transactions involving the different corporate entities established to develop and market the software. In our prior decision, we affirmed Supreme Court’s rulings that the cause of action for malpractice based on the misappropriation was asserted outside of the applicable three-year statute of limitations (see CPLR 214 [6]), but questions of fact existed with regard to whether the time to commence the action was tolled by the continuous representation doctrine (53 AD3d at 952). We observed that "after appropriate discovery, the trial court [could] elect to order an immediate trial on this issue as it could expeditiously dispose of the entire action" (id. at 952). With the [*2]parties’ consent, Supreme Court oversaw what became protracted discovery before scheduling a trial pursuant to CPLR 3212 (c). Following the trial, the court dismissed plaintiff’s complaint and, thereafter, denied plaintiff’s motions for a new trial and/or to renew or reargue (see CPLR 2221, 4404). This Court denied plaintiff’s motion to vacate our July 2008 decision and for expedited consideration and sanctions. Plaintiff now appeals from the judgment dismissing his complaint, as well as from the order denying plaintiff’s posttrial motions.[FN1]

Although we previously denied defendants’ request for summary judgment because the scope of the legal relationship between the parties was unclear, there is no dispute that BSF represented plaintiff in the copyright litigation and that their legal relationship in that litigation had terminated by November 4, 2002. According to plaintiff, defendants misappropriated software, at the latest, on June 25, 2002 (53 AD3d at 950). Since this action was not commenced until October 28, 2005, outside of the three-year statute of limitations (see CPLR 214 [6]), plaintiff’s burden of proof at trial was to establish that the copyright litigation was part of a "continuing, interconnected representation" (53 AD3d at 952) by defendants. If so, the statute would have been tolled through November 4, 2002 and the action would have been commenced on a timely basis.

"The continuous representation doctrine tolls the statute of limitations . . . where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (McCoy v Feinman, 99 NY2d 295, 306 [2002]). It requires more than a continuing, general, professional relationship; it "tolls the [s]tatute of [l]imitations only where the continuous representation pertains specifically to the matter in which the attorney committed the alleged malpractice" (Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). Plaintiff concedes that there was no retainer agreement or letter of engagement detailing the scope of the relationship between plaintiff and defendants. Rather, his claim of continuous representation stems from unsigned correspondence dated November 8, 2000, wherein an entity known as Datamine LLC, purportedly controlled by Boies and/or members of his family, outlined the advisory services it would provide to Buddy USA Inc., an entity controlled by plaintiff and created to market and develop the Aimster service, and correspondence dated November 15, 2000 from Boies addressed to plaintiff as chief executive officer of Buddy USA, wherein Boies stated that his son had agreed to serve on Buddy USA’s board of directors to represent Datamine’s 15% equity interest in the company. According to plaintiff, the November 15, 2000 letter confirmed an oral agreement reached between Boies, plaintiff and defendant William Duker during a meeting that they had in October 2000."

‘We recognize that, although plaintiff claims that certain documents should exist, defendants produced more than 5,000 pages of documents during disclosure and have consistently maintained and affirmed that they do not possess any more documents responsive to plaintiff’s demands. In this regard, plaintiff cannot show a clear abuse of discretion because Supreme Court could not compel defendants to produce documents that do not exist (see Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032 [2012]). On this record, we find that Supreme Court properly exercised its discretion by accepting defendants’ affirmation that they had produced all records related to their representation of plaintiff (see Matter of Scaccia, 66 AD3d 1247, 1249-1250 [2009]).

We also perceive no error by Supreme Court with regard to defendants’ "lost" emails. When plaintiff first raised the issue, defendants affirmed that, even if the files could be restored, it would be at great expense. In March 2011, Supreme Court directed defendants to cooperate with an expert retained by plaintiff to investigate whether emails generated during 2000 and 2001 could be restored and produced. The court emphasized, without objection from plaintiff, that such investigation was to be done at plaintiff’s expense. After plaintiff failed to conduct the permitted investigation, Supreme Court issued a letter order in June 2011 confirming that the parties would endeavor to find a computer forensics expert to examine the computer, again at plaintiff’s expense [FN7]. Plaintiff chose not to avail himself of this opportunity, and we cannot conclude that Supreme Court abused its discretion by conducting the hearing without the "lost" emails.

We also reject plaintiff’s claim that Supreme Court erred by conducting the hearing pursuant to CPLR 3212 (c) and that it should have conducted a trial on the merits of his misappropriation claim. Supreme Court could not decide the merits of plaintiff’s claim until it resolved the statute of limitations issue (53 AD3d at 950). The record confirms that plaintiff repeatedly acknowledged this, and urged the court to conduct the immediate trial."

In a case with complex legal issues, are attorneys given an extended range in which to make "decisions" rather than "departures"?  It seems so.  What might be a "mistake" in another setting is a "judgment call" here.

M & R Ginsburg, LLC v Segel, Goldman, Mazzotta & Siegel, P.C.  2014 NY Slip Op 07227  Decided on October 23, 2014  Appellate Division, Third Department holds that a judgment call by third-party attorneys is not subject to legal malpractice.

"Third-party defendants moved to dismiss the third-party complaint, which was treated by the parties and Supreme Court as a motion for summary judgment (see Gregware v Key Bank of N.Y., 218 AD2d 859, 861 [1995], lv denied 87 NY2d 803 [1995])[FN1]. Supreme Court granted third-party defendants’ motion and defendants appeal.

We affirm. Third-party defendants established with regard to the complex legal issue facing plaintiff that the legal course they recommended — after consulting with plaintiff and defendants — was "one among several reasonable courses of action [and did] not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 [1985]; see Bixby v Somerville, 62 AD3d 1137, 1139 [2009]). Although defendants speculate that a different strategy might have ultimately led to a more beneficial result for plaintiff, such speculation as to other possible legal avenues is insufficient to implicate malpractice (see Rosner v Paley, 65 NY2d at 738). Defendants’ allegations and proof regarding third-party defendants’ representation of plaintiff did not raise a triable issue when measured by the applicable standard in a legal malpractice action (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63, 69 [2002]; Bassim v Halliday, 234 AD2d 628, 630 [1996], appeal dismissed 89 NY2d 1001 [1997]; Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1990])."