A legal malpractice case which arises from a medical malpractice case gone wrong is (we believe) just about the most complicated case to litigate.  Plaintiff must first prove that there were departures from good legal representation, and then afterwards, must prove that there were departures from medical treatment which proximately caused damage.  Both legal and physician experts are needed, and one must prove the value of the hypothetical medical malpractice award.

Gajek v Schwartzapfel, Novick, Truowski & Marcus, P.C.   2014 NY Slip Op 32418(U)   September 8, 2014  Supreme Court, Suffolk County  Docket Number: 12-2375  Judge: Ralph T. Gazzillo is an example of this type of case.  there are several lessons to be derived from this decision and order.

"This action was commenced to recover damages sustained by the plaintiffs due to the alleged
legal malpractice of the defendants. It is undisputed that the plaintiffs retained the defendant
Shwartzapfel Partners, P.C., allegedly wrongfully sued herein as Shwartzapfel, Novick, Truowsky &
Marcus, P.C., (Schwartzapfel) to prosecute an underlying action against Southampton Hospital, among others. The plaintiff Jerzy Gajek (Gajek) was admitted to Southampton Hospital on April 26, 2003. While in the hospital, Gajek developed pressure ulcers, commonly known as "bed sores." In the underlying action, the plaintiffs allege, among other things, that the hospital failed to properly assess  Gajek ‘s risk of developing bed sores, and that the hospital failed to properly treat said condition. It is also undisputed that, after it was commenced in October 2005, the underlying action (or  medical malpractice action) was handled by an associate at Schwartzapfel, the defendant Jason J. Platt  (Platt), that Schwartzapfel entered into an agreement with the law firm of Duffy, Duffy & Burdo to handle the matter as trial counsel (Trial Counsel) in September 2007, and that Trial Counsel entered into a stipulation marking the underlying action off of the trial calendar on December 5, 2007 for the  purposes of completing outstanding discovery. In late March or April 2008, Platt left his employment with Schwartzapfel. Thereafter, Trial Counsel indicated that it was no longer interested in handling the medical malpractice action and Schwartzapfel entered into an agreement with the defendants Law Office of John W. DeBlasio and John W. DeBlasio (DeBlasio) to handle the matter. In early 2009, the defendants in the medical malpractice action moved to dismiss the action pursuant to CPLR 3404 on the grounds that the plaintiffs had failed to restore the case to the calendar within one year. "

The Successor Attorney Problem

"Here, Platt has established his prima facie entitlement to summary judgment on the ground that
his actions or inactions are not the proximate cause of the plaintiffs alleged injuries. It is well settled that, an attorney’s alleged legal malpractice is not a proximate cause of a plaintiff’s damages where "subsequent counsel had a sufficient opportunity to protect the plaintiffs’ rights by pursuing any remedies it deemed appropriate on their behalf’ (Katz v Herifeld & Rubin, P.C., 48 AD3d 640, 853 NYS2d 104 [2d Dept 2008]; see also Alden v Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz ("The People’s Lawyer"), 91 AD3d 1311, 937 NYS2d 784 [4th Dept 2012]; Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 843 NYS2d 577 [1st Dept 2007]; Ramcharan v Panser, 20 AD3d 556, 799 NYS2d 564 [2d Dept 2005]; Perks v Lauto & Garabedian, 306 AD2d 261, 760 NYS2d 231 [2d Dept 2003]; Albin v Pearson, 289 AD2d 272, 734 NYS2d 564 [2d Dept 2001]). That is, an attorney cannot be held liable for legal malpractice where he or she was not representing the plaintiff at the time some period for performance of an action expired and "successor counsel had sufficient time" to complete the action (see Ramcharan v Panser, 20 AD3d at 557, 799 NYS2d at 566). It is undisputed that Schwartzapfel and DeBlasio had approximately eight months after Platt was no longer involved in the plaintiffs’ medical malpractice action to move to restore the action to the trial calendar. "

Motor Vehicle injuries are often a question of whether plaintiff suffered a "serious injury" within the meaning of the insurance Law.  A serious injury is defined as "death, dismbmberment, loss of an organ…"  Many a hurtful non-fracture does not qualify as a "serious injury" even though it is life-changing.  What does this mean for legal malpractice litigation afterwards?

Verdon v Duffy  2014 NY Slip Op 06199  Decided on September 17, 2014  Appellate Division, Second Department is an example of the "but for" bar to legal malpractice.  In a nutshell, even if one can show a departure from good and accepted practice, one must still show that if the departure had not been made there would have been a better/more favorable outcome.

"The plaintiff retained the defendants to commence an action to recover damages for, inter alia, personal injuries that she allegedly sustained in an automobile accident. The defendant in the underlying personal injury action moved for summary judgment dismissing the complaint, on the ground that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. While that motion was pending, the plaintiff accepted a certain sum of money to settle the action.

The plaintiff subsequently commenced this action against her attorneys to recover damages for legal malpractice. The plaintiff alleges that the defendants were negligent in their representation of her in the underlying personal injury action, in that they caused her to settle that action for far less than the fair value of her case. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion.

Here, in support of their motion for summary judgment dismissing the complaint, the defendants established, prima facie, that the plaintiff would not have succeeded on the merits of the underlying personal injury action, as there was insufficient evidence to establish that she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the automobile accident. Consequently, the defendants also established that they did not "fail[ ] to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community" (Porello v Longworth, 21 AD3d 541, 541) when they advised her to accept a settlement offer in the sum that she ultimately accepted. In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint."

In today’s New York Law Journal   Christine Simmons has a truly shocking article about a law firm discovering that one of its attorneys was sending false bills to the client.  OK, this by itself is not so shocking, but the complaint also claims that the attorney created fake orders, forged the signature of a US District Judge, and fabricated expenses.  That’s shocking.  More so, the attorney is a Nassau County legislator and is running for the  NY State.

"Davidoff Hutcher & Citron is suing one of its former attorneys, Nassau County Legislator David Denenberg, claiming he sent hundreds of fake invoices to a client and stole hundreds of thousands of dollars from the firm (See Complaint). Denenberg, a Democrat, had been running for a seat in the state Senate, using the campaign slogan, "Nobody Works Harder." After news of the suit broke Tuesday, Denenberg withdrew from the race. Denenberg led Davidoff Hutcher’s intellectual property practice in the firm’s Long Island office. Davidoff Hutcher claimed its client, Systemax, a retailer of electronics products, paid more than $2 million to satisfy the false bills. The law firm said it discovered the scheme and informed Systemax. After conducting an investigation, the firm agreed to "make full restitution" to Systemax, according to the lawsuit filed Tuesday in Manhattan Supreme Court, Davidoff Hutcher Citron v. Denenberg, 159304-2014."

"Davidoff Hutcher said it was unaware of the conduct and believed the bills represented legitimate charges. Denenberg also improperly billed and collected funds for false business expenses, the firm claims. Specifically, the suit said, Davidoff Hutcher paid him for "numerous false vouchers"  seeking reimbursement of expenses he claimed were incurred on behalf of clients. "By this conduct, defendant Denenberg stole hundreds of thousands of additional dollars directly from DHC based on his false representations that these were client expenses for which he was entitled to reimbursement," the lawsuit said. The firm claims it offered Denenberg an opportunity to explain his actions, but he refused. According to the suit, Denenberg was advised that the firm had  discovered two files for the client involving misconduct and asked if there were any others.
"Denenberg, admitting his guilt, replied ‘No.’ Unfortunately, this too was a lie, as there were many more than two files involved," according to the lawsuit, which lists six Systemax matters that involved fake invoices. The firm claims Denenberg showed no remorse, and when told he would be fired, replied "You’re going to make me go? For this?" The firm said Denenberg went to "great lengths to perpetuate the fraud," by preparing a fake order from federal court that purported to dismiss claims against the client, then signing the order in the name of a federal judge. In another case, according to the suit, Denenberg created a fake stipulated order of dismissal with prejudice of claims between a plaintiff and the client, and the order indicated it had been signed by a different district court judge.

So, why is this not a case of deceit under Judiciary Law 487?

Courts have found many ways to award attorney fees and force litigants to pay them.  Sometimes it is on the merits and sometimes litigants are the losers on technical issues.  One of the more interesting wrinkles in legal malpractice  is the question of attorney fee awards and collateral estoppel of the subsequent legal malpractice case. 

Urias v Daniel P. Buttafuoco & Assoc., PLLC,  2014 NY Slip Op 06198 Decided on September 17, 2014  Appellate Division, Second Department is a recent example.

‘The plaintiff, Delfina Urias, individually and as guardian of her husband, Manuel Urias, commenced a medical malpractice action against the healthcare professionals and providers responsible for treating him. The defendant Daniel P. Buttafuoco & Associates, PLLC (hereinafter the Buttafuoco Firm), represented the plaintiff in the underlying medical malpractice action. On April 2, 2009, shortly before the trial was to begin, the medical malpractice action was settled in open court for the sum of $3,700,000, and the liability was allocated among the various defendants in that action. On July 20, 2009, counsel for the parties to the medical malpractice action appeared before the Supreme Court, Suffolk County, in connection with a proposed change to the terms of the settlement. At that conference, the court, inter alia, approved the award of an attorney’s fee to the Buttafuoco Firm in the sum of $864,552. To calculate the attorney’s fee, the Buttafuoco Firm applied the "sliding scale" set forth in the retainer agreement and in Judiciary Law § 474-a(2) to each individual medical malpractice defendant’s settlement amount, rather than the total settlement amount, which resulted in a larger attorney’s fee for the Buttafuoco Firm. The Buttafuoco Firm later reduced its attorney’s fee to $710,000.

Meanwhile, the plaintiff retained the defendant John Newman to represent her in a proceeding in the Supreme Court, Nassau County, to appoint a guardian on behalf of Manuel Urias and to obtain approval of the settlement in the medical malpractice action. The plaintiff complained to Newman about the manner in which the Buttafuoco Firm calculated its fee. Subsequently, Newman moved for approval of the medical malpractice settlement in the guardianship proceeding. In an order dated October 27, 2009, the Supreme Court, Nassau County, among other things, denied approval of the settlement and the attorney’s fee, without prejudice to reconsideration, and directed that the issue of the Buttafuoco Firm’s attorney’s fee be revisited by the Supreme Court, Suffolk County. Newman then moved in the Supreme Court, Suffolk County, to confirm the amount of the attorney’s fee awarded to the Buttafuoco Firm. In an order dated March 24, 2010, the Supreme Court, Suffolk County, formally approved the attorney’s fee as previously calculated. Thereafter, in an order dated June 7, 2010, the Supreme Court, Nassau County, in the context of the guardianship proceeding before it, approved the settlement agreement and the attorney’s fee awarded in the malpractice action.

In 2011, the plaintiff commenced the instant action against Newman, as well as the Buttafuoco Firm, the related law firm of Daniel P. Buttafuoco, LLC, and the Buttafuoco Firm’s principal attorney, Daniel P. Buttafuoco (hereinafter collectively the Buttafuoco defendants), inter alia, to recover damages for legal malpractice. The Buttafuoco defendants and Newman separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.

Moreover, the Buttafuoco defendants were not entitled to dismissal pursuant to CPLR 3211(a)(5) on the ground of collateral estoppel. Generally, the award of an attorney’s fee to an attorney necessarily establishes that there was no legal malpractice (see Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534, 537; Siegel v Werner & Zaroff, 270 AD2d 119, 120). The Buttafuoco Firm established, prima facie (see Plain v Vassar Bros. Hosp., 115 AD3d 922, 923), that the issue of whether it committed legal malpractice was necessarily decided in its favor when it was awarded a fee in connection with its representation of the plaintiff in the underlying medical malpractice action (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Montoya v JL Astoria Sound, Inc., 92 AD3d 736, 738). However, in opposition, the plaintiff raised a question of fact as to whether she was deprived of a full and fair opportunity to litigate the issue. Inasmuch as Newman moved, on behalf of the plaintiff, to confirm the amount of the attorney’s fee awarded to the Buttafuoco Firm, and that relief was granted, had the plaintiff attempted to appeal from that order, her appeal would have been dismissed for lack of aggrievement (see CLPR 5511; Village of Croton-on-Hudson v Northeast Interchange Ry., LLC, 46 AD3d 546, 548). Under these particular circumstances, where the plaintiff could not appeal, an issue of fact was raised as to whether she had a full and fair opportunity to litigate the issue of the alleged malpractice committed by the Buttafuoco Firm and, thus, whether she was collaterally estopped from asserting that the Buttafuoco defendants committed legal malpractice in obtaining judicial approval of the fee award (see Davidov v Searles, 84 AD3d 859, 860)."

Fees in medical malpractice were lowered many years ago in hopes of curbing the "medical malpractice plague."  Our view is that the AMA has found that there are an incredible number of medical malpractice mistakes, and that litigation is the only way for a damaged patient to obtain reasonable compensation.

Whether you agree with that position or not, it’s clear that the artificially depressed fee structure has engendered some problems for attorneys who practice in this field.  Urias v Daniel P. Buttafuoco & Assoc., PLLC  2014 NY Slip Op 06198  Decided on September 17, 2014  Appellate Division, Second Department is one example.  Matter of Harley, 298 AD2d 49 (2002) and Matter of Cousins, 2010 NY Slip Op 07413 [80 AD3d 99] are others.

In  Urias, "The plaintiff, Delfina Urias, individually and as guardian of her husband, Manuel Urias, commenced a medical malpractice action against the healthcare professionals and providers responsible for treating him. The defendant Daniel P. Buttafuoco & Associates, PLLC (hereinafter the Buttafuoco Firm), represented the plaintiff in the underlying medical malpractice action. On April 2, 2009, shortly before the trial was to begin, the medical malpractice action was settled in open court for the sum of $3,700,000, and the liability was allocated among the various defendants in that action. On July 20, 2009, counsel for the parties to the medical malpractice action appeared before the Supreme Court, Suffolk County, in connection with a proposed change to the terms of the settlement. At that conference, the court, inter alia, approved the award of an attorney’s fee to the Buttafuoco Firm in the sum of $864,552. To calculate the attorney’s fee, the Buttafuoco Firm applied the "sliding scale" set forth in the retainer agreement and in Judiciary Law § 474-a(2) to each individual medical malpractice defendant’s settlement amount, rather than the total settlement amount, which resulted in a larger attorney’s fee for the Buttafuoco Firm. The Buttafuoco Firm later reduced its attorney’s fee to $710,000.

Meanwhile, the plaintiff retained the defendant John Newman to represent her in a proceeding in the Supreme Court, Nassau County, to appoint a guardian on behalf of Manuel Urias and to obtain approval of the settlement in the medical malpractice action. The plaintiff complained to Newman about the manner in which the Buttafuoco Firm calculated its fee. Subsequently, Newman moved for approval of the medical malpractice settlement in the guardianship proceeding. In an order dated October 27, 2009, the Supreme Court, Nassau County, among other things, denied approval of the settlement and the attorney’s fee, without prejudice to reconsideration, and directed that the issue of the Buttafuoco Firm’s attorney’s fee be revisited by the Supreme Court, Suffolk County. Newman then moved in the Supreme Court, Suffolk County, to confirm the amount of the attorney’s fee awarded to the Buttafuoco Firm. In an order dated March 24, 2010, the Supreme Court, Suffolk County, formally approved the attorney’s fee as previously calculated. Thereafter, in an order dated June 7, 2010, the Supreme Court, Nassau County, in the context of the guardianship proceeding before it, approved the settlement agreement and the attorney’s fee awarded in the malpractice action.

In 2011, the plaintiff commenced the instant action against Newman, as well as the Buttafuoco Firm, the related law firm of Daniel P. Buttafuoco, LLC, and the Buttafuoco Firm’s principal attorney, Daniel P. Buttafuoco (hereinafter collectively the Buttafuoco defendants), inter alia, to recover damages for legal malpractice. The Buttafuoco defendants and Newman separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them."

"Here, construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, as we are required to do, the plaintiff stated a cause of action to recover damages for legal malpractice against Newman and the Buttafuoco defendants (see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589; Palmieri v Biggiani, 108 AD3d 604, 608). Newman’s contention, in effect, that his failure to object to the attorney’s fee awarded to the Buttafuoco Firm was not a proximate cause of the plaintiff’s damages, and that he did not depart from the accepted standard of care, concern disputed factual issues that are not properly resolved on a motion to dismiss the complaint pursuant to CPLR 3211(a)(7)."

Plaintiff alleges that defendant "caused an action to be commenced against the plaintiff and a preclusion order to be entered against him in that action, and that they failed to assert the defenses of laches and statute of limitations in the underlying action."  Unfortunately for plaintiff, the Appellate Division determined that he was unable to show that the case would have come out better had the attorney adopted some other tactic. 

In Leiner v Hauser  2014 NY Slip Op 06180  Decided on September 17, 2014  Appellate Division, Second Department it was alleged that the attorney "caused" a case to be started against plaintiff, and then failed to plead certain defenses.  The Appellate Division dismissed. 

"Here, the Supreme Court should have granted that branch of the motion of the defendants Estate of Noel Hauser and Noel Hauser & Associates (hereinafter together the appellants) which was pursuant to CPLR 3211(a) to dismiss so much of the complaint insofar as asserted against them as was premised upon allegations that they caused a preclusion order to be entered against the plaintiff in an underlying action. Viewing the complaint in the light most favorable to the plaintiff, it fails to plead specific factual allegations showing that, but for the appellants’ alleged negligence in causing the preclusion order to be entered, the plaintiff would have obtained a more favorable outcome in the underlying action (see CPLR 3211[a][7]; Benishai v Epstein, 116 AD3d 726, 728; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083).

Furthermore, the Supreme Court should have granted that branch of the appellants’ motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint insofar as asserted against them as was premised upon allegations that they caused an action to be commenced against the plaintiff, and that they failed to assert the defenses of laches and statute of limitations in that action. With respect to these allegations, viewing the complaint in the light most favorable to the plaintiff, it fails to set forth facts sufficient to allege that the appellants’ alleged failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff actual and ascertainable damages (see CPLR 3211[a][7]; Held v Seidenberg, 87 AD3d at 617)."

Everyone in this case came out badly.  Attorney represented client, became friends with client, gave financial advice to client, invested with client, lost money in a Ponzi scheme with client.  Now, client survives a summary judgment decision against his former friend/attorney/investment partner.

Biberaj v Acocella  2014 NY Slip Op 06165  Decided on September 17, 2014  Appellate Division, Second Department  is the underlying decision for this story.  "The plaintiff and the defendant, an attorney licensed in New York, met in or about 2001, when the plaintiff sought the defendant’s legal representation. The parties established a business relationship, which later evolved into a friendship. In 2007, upon the defendant’s recommendation, the plaintiff made an investment of $260,000 in an enterprise known as Agape World (hereinafter Agape), which purportedly used investor money to provide bridge loans to businesses, and paid interest to the investors. The defendant allegedly also invested large sums of his own money in Agape. In 2008, it was revealed that Agape was, in fact, a Ponzi scheme, in which new investors’ funds were used to pay earlier investors’ returns. The plaintiff and the defendant allegedly lost their investments in Agape."

"Here, in support of that branch of his motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice, the defendant met his prima facie burden of establishing that he had no attorney-client relationship with the plaintiff referable to the plaintiff’s investment in Agape (see Volpe v Canfield, 237 AD2d 282, 283). In opposition, however, the plaintiff raised a triable issue of fact as to the existence of an attorney-client relationship in that context. Moreover, with regard to this cause of action, the defendant failed to show, prima facie, that he exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in allegedly advising the plaintiff regarding Agape, or that the alleged breach of this duty did not proximately cause the plaintiff to sustain damages. Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice.

The Supreme Court should have granted those branches of the motion which were for summary judgment dismissing the causes of action to recover damages for fraud and breach of contract as duplicative of the cause of action to recover damages for legal malpractice, because they arose from the same facts as the legal malpractice cause of action, and do not allege distinct damages

"

We often muse that absolute rules depress creative thinking.  As an example, the well recognized rule is that legal malpractice cases always require an expert for plaintiff.  However, is this true?

Board of Mgrs. of Bridge Tower Place Condominium v Starr Assoc. LLP  2013 NY Slip Op 07684 [111 AD3d 526]    November 19, 2013  Appellate Division, First Department  tells us, "not always."

"This Court previously held that the stipulation drafted by defendants unambiguously stripped plaintiff of its right to amend its bylaws to attain a specific result in connection with the underlying action (see Luzzi v Bridge Tower Place Condominium, 52 AD3d 290 [1st Dept 2008]). Under those circumstances, no expert testimony was necessary to establish that defendants’ conduct fell below the standards of the profession generally (see S & D Petroleum Co. v Tamsett, 144 AD2d 849, 850 [3d Dept 1988]). Because the alternative to the stipulation was not, as defendants contend, to litigate the underlying action, but for plaintiff to exercise its right to amend the bylaws immediately, the motion court did not err in finding "but for causation" as a matter of law (cf. Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]).

Furthermore, although plaintiff’s president is an attorney, and did see drafts of the stipulation, the record does not raise a triable issue as to whether he arrogated to himself the role of drafting the stipulation, or micro-managed the negotiation. Rather, the record shows that plaintiff relied on counsel to effect the strategy of preserving in the stipulation the right to amend the bylaws. Accordingly, the defenses of comparative fault were properly dismissed (see Mandel, Resnik & Kaiser, P.C. v E.I. Elecs., Inc., 41 AD3d 386 [1st Dept 2007]). Concur—Andrias, J.P., Friedman, Richter, Manzanet-Daniels and Feinman, JJ."This Court previously held that the stipulation drafted by defendants unambiguously stripped plaintiff of its right to amend its bylaws to attain a specific result in connection with the underlying action (see Luzzi v Bridge Tower Place Condominium, 52 AD3d 290 [1st Dept 2008]). Under those circumstances, no expert testimony was necessary to establish that defendants’ conduct fell below the standards of the profession generally (see S & D Petroleum Co. v Tamsett, 144 AD2d 849, 850 [3d Dept 1988]). Because the alternative to the stipulation was not, as defendants contend, to litigate the underlying action, but for plaintiff to exercise its right to amend the bylaws immediately, the motion court did not err in finding "but for causation" as a matter of law (cf. Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]).

Furthermore, although plaintiff’s president is an attorney, and did see drafts of the stipulation, the record does not raise a triable issue as to whether he arrogated to himself the role of drafting the stipulation, or micro-managed the negotiation. Rather, the record shows that plaintiff relied on counsel to effect the strategy of preserving in the stipulation the right to amend the bylaws. Accordingly, the defenses of comparative fault were properly dismissed (see Mandel, Resnik & Kaiser, P.C. v E.I. Elecs., Inc., 41 AD3d 386 [1st Dept 2007]). Concur—Andrias, J.P., Friedman, Richter, Manzanet-Daniels and Feinman, JJ.