Norwich, NY:  It is ironic when a legal malpractice complaint is dismissed for technical reasons, and worse when it makes claims that are never compensible.  Nevertheless, in Kreamer v Town of Oxford   2012 NY Slip Op 04445 [96 AD3d 1128]   June 7, 2012  Appellate Division, Third Department  that’s exactly what happened.

"Defendant Roger Monaco (hereinafter defendant) was the attorney who represented plaintiffs at the closing when they purchased that property. Defendant moved to dismiss the complaint against him.[FN*] Plaintiffs [*2]cross-moved to find defendant in default and for summary judgment based on that default. Supreme Court granted defendant’s motion and denied the cross motion. Plaintiffs appeal.

Plaintiffs failed to state a cause of action against defendant. The complaint does not list legal malpractice as a separate cause of action (see CLPR 3014), and all of the allegations concerning defendant are contained in the "statement of facts" portion of the complaint rather than under a specified cause of action. Even accepting the allegations as true and liberally construing the complaint to be alleging legal malpractice against defendant, the allegations are insufficient to make out a prima facie case. An action for legal malpractice requires proof that the attorney failed to exercise the reasonable skill and knowledge ordinarily possessed by a member of the legal profession, that this negligence was the proximate cause of the client’s loss or injury, and that the client sustained actual damages (see M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1208-1209 [2011]). Plaintiffs allege that defendant knew or should have known of the Town’s zoning ordinances that could affect plaintiffs’ rights as landowners, but failed to advise them of those rights. They further allege that defendant’s actions inflicted emotional distress and caused them to expend money to save their house. These allegations do not set out the standard of skill required of an attorney or state that defendant’s actions fell below that skill level (see Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied 552 US 1257 [2008]; compare Canavan v Steenburg, 170 AD2d 858, 859 [1991]; see also Kolev and Collins, The Importance of Due Diligence: Real Estate Transactions in a Complex Land Use World, 84 NY St BJ 24 [Mar./Apr. 2012]). Thus, defendant was entitled to have the complaint against him dismissed."

Attorney represents real estate corporation, and represents it, makes loans to it, and in intimately involved for a number of years.  Attorney dies.  Litigation ensues.

Cohen v Gateway Bldrs. Realty, Inc.   2014 NY Slip Op 50832(U)  Decided on May 27, 2014
Supreme Court, Kings County  Demarest, J. is at base, a very sad story. 

"It is undisputed that prior to his death in September 2009, Malcolm Cohen ("Cohen") acted as attorney for Gateway Builders Realty, Inc. ("Gateway"). According to defendants, Gateway retained Cohen on August 16, 2005 to provide legal services in connection with the purchase and financing of property located at 142 22nd Street, Brooklyn, New York (the "Property"). Over the next four years, Cohen represented Gateway in further refinancing transactions involving the Property, whereby Gateway would obtain a loan from a new lender and pay off its existing loan. It appears that Gateway obtained financing from at least four commercial lenders. During the course of his representation, Cohen also made a number of loans to Gateway.

On or about September 1, 2009, the loans from Cohen to Gateway were amended, restated, and consolidated into one debt totaling $325,000, pursuant to a new note and agreement (the "Consolidation Note" and the "Consolidation Agreement", respectively). In support of her motion, plaintiff submits the Consolidation Note, which reflects the consolidation of two prior notes given by Gateway to Cohen, dated November 8, 2006, and October 1, 2008, each for $100,000, with an additional loan of $125,000 from Cohen to Gateway. The Consolidated Note is secured by a mortgage on the Property and is guaranteed by defendant Yildirim, who is Gateway’s principal.

The Lawyer’s Code of Professional Responsibility, DR5-104(A),[FN2] in effect at the time, prohibited an attorney from entering into a business transaction with a client without making certain disclosures and obtaining written consent from that client, as Cohen is accused of doing. While a violation of the Code of Professional Responsibility does not alone give rise to a private cause of action (see DeStaso v Condon Resnick, LLP, 90 AD3d 809, 814 [2d Dept 2011]), defendants allege that Cohen’s self-dealing gives rise to a breach of fiduciary duty claim. "In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant’s misconduct" (Daly v Kochanowicz, 67 AD3d 78 [2d Dept 2009];(quoting Kurtzman v [*3]Berstol, 40 AD3d 588, 590 [2d Dept 2007]). It is well established that an attorney owes his client a fiduciary duty (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9 [1st Dept 2008]). Defendants complain that Cohen’s inclusion of the prepayment penalties and high interest rates, and his inappropriately charging legal fees for services "below the standard of care" from 2005 through 2009, constituted self-interest in lending money to Gateway. Plaintiff argues that defendants’ third counterclaim for breach of fiduciary duty should be dismissed as duplicative of the two legal malpractice counterclaims, which are also redundant of each other. As defendants’ third counterclaim contains the same allegations of fact and seeks the same relief as its first two counterclaims, it is dismissed as redundant (see Nevelson v Carro, 290 AD2d 399, 400 [1st Dept 2002]; see also Murray Hill Investments v Parker Chapin Flattau & Klimpl, LLP, 305 AD2d 228, 229 [1st Dept 2003]).

Plaintiff argues that the first two counterclaims are indeed time barred because they rest upon allegations about transactions that are separate and distinct from the debt involved in the instant action. Defendants’ counterclaims allege malpractice relating to a loan made by Silver Hill Financial ("Silver Hill") to Gateway on February 27, 2008, where defendants’ claim that Cohen caused Gateway to enter into a loan agreement with a large prepayment penalty contrary to defendants’ express wishes. Plaintiff asserts that Cohen’s representation of Gateway regarding the loan from Silver Hill is a separate transaction, unrelated to the Consolidation Agreement, which was entered into on September 1, 2009, eighteen months after the Silver Hill transaction. Defendants’ position is that their counterclaims involve Cohen’s continuous legal representation of Gateway and Yildirim.

The court agrees with plaintiff that the Silver Hill transaction is a separate transaction and occurrence from the debt upon which plaintiff is suing. Therefore, defendants’ counterclaims alleging malpractice in Cohen’s representation of Gateway in the February 27, 2008 loan from Silver Hill to Gateway are time-barred. Moreover, it is noted that, based upon the documentary evidence of the loan documents, defendants’ claims appear to be without merit in that all of the mortgages signed by Gateway prior to the Silver Hill transaction did include prepayment penalties. The remaining allegations contained in defendants’ first counterclaim also ambiguously refer to separate transactions which apparently all occurred prior to the 2008 Silver Hill loan and are, in any event, entirely speculative. The first counterclaim is therefore dismissed."

UTICA:    The battle in legal malpractice cases almost always centers on the question of "but for", that hypothetical comparison of the actual outcome to the ideal outcome, had there been no malpractice. Dischiavi v Calli  2013 NY Slip Op 07289 [111 AD3d 1258]  November 8, 2013
Appellate Division, Fourth Department  is a prime example.  Sure, the attorneys told the client that an expert physician was examining the client, when it was really an attorney, and sure the attorneys told the client that a well experienced physician was reviewing the records when it was really a veterinarian, but so what?  Could he have won if they did a good job is the real question.

"Memorandum: Plaintiffs commenced this action seeking damages for, inter alia, breach of contract, legal malpractice and fraud, alleging, among other things, that defendants failed to commence timely legal actions to recover damages arising from injuries sustained by Gary M. Dischiavi (plaintiff). Plaintiffs allege in their complaint that plaintiff was injured as the result of an accident that occurred while he was on duty as a City of Utica police officer in 1991, and that he was further injured as a result of his ensuing medical treatment. Although plaintiffs retained defendant law firm of Calli, Kowalczyk, Tolles, Deery and Soja (CKTDS) to represent them with respect to possible claims arising from those injuries, no action was ever instituted. Plaintiffs further allege that defendants purported to have plaintiff examined by an expert physician but had a lawyer examine him instead, purported to have other expert physicians review plaintiff’s medical records but had a veterinarian perform that review, misrepresented that they had commenced a personal injury action on plaintiffs’ behalf, and created a fake settlement agreement for that "action." This case was previously before us on appeal, and we determined, inter alia, that Supreme Court erred in granting the motions and cross motion of various defendants for summary judgment dismissing the complaint in its entirety against them (Dischiavi v Calli [appeal No. 2], 68 AD3d 1691, 1692-1694 [2009]).

Defendants Andrew S. Kowalczyk, Joseph Stephen Deery, Jr., and CKTDS (collectively, CKTDS defendants), along with defendant William S. Calli, Jr. (Calli, Jr.), as administrator C.T.A. of the estate of former defendant William S. Calli, Sr., contend that the court erred in denying their motions insofar as they concern the underlying medical malpractice claim. Specifically, the CKTDS defendants and Calli, Jr., contend that the underlying medical malpractice claim lacks merit, and thus that plaintiffs could not recover damages based on the failure of those defendants to commence a timely action based on that claim. We conclude, however, that the court properly denied the motions to that extent inasmuch as the CKTDS defendants and Calli, Jr. failed to meet their initial burden of establishing that plaintiffs’ medical malpractice claim lacks merit (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Welch v State of New York, 105 AD3d 1450, 1451 [2013]). In any event, plaintiffs raised a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

A criticism that arises regularly, and which seems embedded in the judiciary’s imagination is that the majority of legal malpractice cases are "sour grapes", "Monday morning quarterbacking" and "reflexive counterclaims."  While we hotly dispute these terms, some cases do prove the generalization true.  Liddle & Robinson, LLP v Byrne  2014 NY Slip Op 31328(U)  May 21, 2014
Supreme Court, New York County  Docket Number: 157825/2013  Judge: Eileen A. Rakower is one such example. 

"This is an action for unpaid legal fees incurred by Plaintiff, Liddle & Robinson, LLP ("L&R") in representing Defendant, Brendan P. Byrne ("Byrne").  The Complaint alleges that Byrne breached the parties’ Retainer Agreement by failing to pay L&R the outstanding amounts due for legal fees and disbursement  expenses. The Complaint also asserts claims for quantum meruit and account stated.

Presently before the Court is a motion by L&R, Batson, and Feldstein to dismiss Byrne’s Counterclaims and Cross Claims asserted against them, pursuant  to CPLR § 321 l(a)(l) and (a)(7). Plaintiff submits the attorney affirmation of  David I. Greenberger, a Partner at L&R. Annexed to Greenberger’s affirmation,  among other exhibits, is a copy of the parties’ Retainer Agreement, L&R’s invoices, and an Order granting L&R’s motion to withdraw entered on March 4,
2013.     Byrne does not oppose.

Byrne’s first Counterclaim against L&R and first Cross-Claim against Batson and Feldstein are for fraud, based on the following identical allegations: 

6. BYRNE was explicit that he was not in a financial position and that he was not capable nor could he agree to pay for fees in excess of his retainer with the firm.
7. JAMES BATSON explained to BYRNE that it would be a difficult process for attorneys to withdraw from a case, hence the large upfront retainer when taking on the case. Therefore, Batson advised that the firm continue to represent the BYRNE. BATSON continued to make representations that if defendants are unable to pay the firm would not pursue defendants as judges generally frown upon lawyers and firms suing their clients and assured BYRNE that the firm "has bigger fish
to fry" than to chase small clients. It is evident in this action that these representations were fraudulent and misleading and subsequent invoices were fraudulent as well.

9. The Statements made by James Batson, with David Feldstein in regards to he [sic] and the firm does not pursue clients for billing hours over retainer which they are not capable of paying.
10. L&R has fraudulently misrepresented facts to induce Defendant to
continue with the action, which the firm was originally retained.

Here, Byrne’s second Counterclaim and second Cross-claim fail to make out a claim for legal malpractice against L&R or Batson and Feldstein. These claims fail to allege any allegations concerning how L&R, Batson, and Feldstein were specifically negligent, and how that alleged negligence was the proximate cause of the loss allegedly sustained.

Wherefore, it is hereby,
ORDERED that the motion is granted without opposition, and the counterclaims asserted by Defendant, Brendan P. Byrne, against plaintiff, Liddle & Robinson, LLP, and the cross-claims asserted by Defendant, Brendan P. Byrne, against James A. Batson and David H. Feldstein are dismissed in their entirety"

Client is involved in a fraudulent transaction, or even in an investment gone sour, and seeks to get the investment money back.  Client looks to see who might be responsible, and attorneys are always a good target.  This sometimes leads to dismissals of legal malpractice cases on standing, privity and statute of limitations. 

Goldin v Tag Virgin Is. Inc.  2014 NY Slip Op 31308(U)  May 20, 2014  Supreme Court, New York County  Docket Number: 651021/2013  Judge: Eileen Bransten is such an example.  "In this action, Plaintiffs Steven Goldin and Rochelle Goldin bring claims on behalf  two accounts managed by Defendant TAG Virgin Islands, Inc. ("TAG")-the Bernice  Goldin IRA and the Paul Goldin Marital Trust B ("Trust") (collectively, the "accounts").  Relevant to the instant motion, Plaintiffs assert a variety of tort and contract claims  related to the accounts against Defendant TAG, an investment advisory group, and its two owners, Defendants James S. Tagliaferri and Patricia Cornell. In addition, Plaintiffs  bring claims against TAG’s legal counsel, Barry Feiner.

Defendant Feiner was TAG1s legal counsel, and according to Plaintiffs, "mostly drafted" certain of the convertible note instruments through which Plaintiffs’ funds were transferred to TAG-related companies. In addition, Plaintiffs contend that Feiner was responsible for wiring Plaintiffs’ funds to the TAG-affiliated companies, including the IEAH Defendants. These allegations are all pleaded "on information and belief." See Compl. para. 81. Based on these allegations, Plaintiffs assert four claims against Feiner – legal malpractice, aiding and abetting breach of fiduciary duty, unjust enrichment, and fraud. Feiner now seeks dismissal of each of these claims pursuant to CPLR 3211 l(a)(5) and (a)(7). In addition, Feiner contends that Plaintiffs’ aiding and abetting and fraud claims are not pleaded with the requisite specificity under CPLR 3016(b). Each of Feiner
arguments will be examined in turn below.

Defendant Feiner first objects to Plaintiffs’ legal malpractice claim, contending that is time-barred. "In moving to dismiss a cause of action pursuant to CPLR 321 l(a)(S) as barred by the applicable statute of limitations, a defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the action has expired." City of Yonkers v. 58A JVD Indus., Ltd., 115 A.D.3d 635, 635 (2d Dept 2014)  "The burden then shifts to the plaintiff to raise an issue of fact as to whether the statute of limitations was tolled or was otherwise inapplicable, or whether it actually commenced the action within the applicable limitations period." Id.

Plaintiffs do not dispute that the legal malpractice cause of action accrued as late as June 2008. Instead, they contend that the statute of limitations should be tolled under the continuous representation doctrine, which provides for tolling "while representation on the same matter in which the malpractice is alleged is ongoing." Waggoner, 68 A.D.3d at 7. Even assuming, arguendo, that Feiner represented Plaintiffs in the first place when the notes were drafted, Plaintiffs provide no support for the proposition that he continued to represent them in the same matter, i.e. during the pendency of the notes through maturation. "The [continuous representation] doctrine is rooted in recognition that a client cannot be expected to jeopardize a pending case or relationship with an attorney during the period that the attorney continues to handle the case." Id. Here, however, there is no allegation that Feiner continued handling the notes through maturation. Accordingly, the continuous representation doctrine does not apply under the facts as pleaded by Plaintiffs in their Complaint, and the legal malpractice claim is dismissed as untimely"

Even if timely brought, Plaintiffs’ legal malpractice claim nonetheless would be dismissed for failure to state a cause of action. ‘A cause for legal malpractice cannot be stated in the absence of an attorney-client relationship." Waggoner, 68 A.D.3d at 5. However, Plaintiffs here fail to plead that they had such a relationship with Defendant Feiner. As discussed above, Plaintiffs’ legal malpractice claim stems from Feiner’s representation of TAG in drafting the convertible notes. Since Feiner did not represent Plaintiffs and was performing services only on behalf of TAG, no attorney-client relationship has been stated. See Federal Ins. Co. v. North American Specialty Ins. Co., 47 A.D.3d 52, 59 (1st Dep’t 2007) ("New York courts impose a strict privity requirement
to claims of legal malpractice; an attorney is not liable to a third party for negligence in performing services on behalf of his client.").

A legal malpractice case is brought, and swiftly dismissed.  In Cie Sharp v Krishman Chittur  2014 NY Slip Op 31303(U)  May 13, 2014  Supreme Court, New York County  Docket Number: 155098/13  Judge: Joan A. Madden the reason is that the attorney was awarded a fee for the same work.  The two cannot co-exist.

"In this action for legal malpractice, plaintiffs prose seek $6,000,000 in compensatory, punitive, consequential and treble damages. In lieu of answering, defendants prose move to dismiss the complaint on various grounds. Plaintiff Cie Sharp opposes the motion and crossmoves for a default judgment or summary judgment against defendants. Defendants motion to dismiss is granted, as plaintiffs’ legal n:malpractice claims are barred by the order rendered in the underlying action permitting defendants .to withdraw and recognizing their claim to a charging lien on account of their services in that action. See Molinaro v. Bedke, 281 AD2d 242 ( 1st Dept 2001 ).

It has long been the law in New York that a judicial determination fixing the value of a professionals services necessarily decides there was no malpractice. See Blair v. Bartlett, 75 NY 150 (1878). Thus, a plaintiffs claim for legal malpractice is barred by the attorney’s successful prosecution of a lien proceeding to recover fees for the same legal services that plaintiff alleges were negligently performed. See Lusk v. Weinstein, 85 AD3d 445 (1st Dept), Iv app den 17 NY3d 709 (2011); Kinberg V. Garr, 28 AD3d 245 (I st Dept 2006); Coburn V. Robson & Miller, LLP, 13 AD3d 323 (I st Dept 2004); Smira v. Roper, Barandes & Fertel, LLP, 302 AD2d 305 (1st Dept 2003); Molinaro v. Bedke, 281AD2d242 (1st Dept 2001); Chalpin v. Caro, 265 AD2d 155 (1st Dept 1999); Koppelman v. Liddle, O’Connor, Finkelstein & Robinson, 246 AD2d 365, 366 (1st  Dept 1998); Summit Solomon & Feldesman v. Matalon, 216 AD2d 91 (1st Dept), Iv app den, 86 NY2d 711 (1995); John Grace & Co., Inc. v. Tunstead, Schechter & Torre, 186 AD2d 15, 19 (1st Dept 1992). Even if plaintiff did not raise any issue of malpractice in the proceeding to determine the attorney’s lien, the cases cited above uniformly hold that a court’s determination fixing the value of an attorney’s professional services, necessarily decides there was no malpractice, even though the issue was not specifically raised. See Blair v. Bartlett, supra; Coburn v. Robson & Miller, LLP, supra; Chalpin v. Caro, supra; Koppelman v. Liddle, O’Connor, Finkelstein & Robinson, supra; Summit Solomon & Feldesman & Matalon, supra; John Grace & Co, Inc. v. Tunstead, Schechter & Torre, supra.."

Troy:   Just like Jack Hall Plumbing & Heating, Inc. v Duffy, 100 AD3d 1082, 1084 [2012]) defendant moved for summary judgment without an expert.  Just like Jack Hall, the motion fails.Land Man Realty, Inc. v Faraone   2012 NY Slip Op 08218 [100 AD3d 1336]  November 29, 2012
Appellate Division, Third Department. 

"Thereafter, plaintiff commenced this action against defendants, claiming that it was the procuring cause of the sale of the property and is entitled to a 10% commission pursuant to an alleged agreement with defendants. As is relevant herein, defendants, in turn, commenced a third-party action against third-party defendant, Robert W. Pulsifer, an attorney who represented defendants in the real estate transaction. Defendants claim that Pulsifer (1) failed to respond or take any action regarding plaintiff’s letters asserting a claim for a commission, and (2) negotiated the contract for the sale of property to CDP in a manner that did not sufficiently protect defendants against plaintiff’s commission claim. Defendants moved for summary judgment dismissing the complaint and Pulsifer moved for summary judgment dismissing the amended third-party complaint. Supreme Court denied both motions. Pulsifer now appeals.

We affirm. A legal malpractice action requires a showing that an attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession [and] the attorney’s breach of this professional duty caused the plaintiff’s actual damages" (McCoy v Feinman, 99 NY2d 295, 301-302 [2002] [internal quotation marks and citations omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1208-1209 [2011]). Here, although Pulsifer himself avers that based upon his legal experience he was not negligent in the advice and representation he provided to defendants, he failed to submit adequate proof establishing the applicable standard of care and whether he breached that standard. As Pulsifer failed to meet his initial legal burden of establishing his entitlement to summary judgment as a matter of law (see Jack Hall Plumbing & Heating, Inc. v Duffy, 100 AD3d 1082, 1084 [2012]), his summary judgment motion was properly denied."

When parties represent themselves, a skewing of the normal motion practice is often seen.  In general, motions over service of process, and whether a party may practice law in New York are rarely seen.  Here, in Reem Contr. v Altschul & Altschul  2014 NY Slip Op 03638  Decided on May 20, 2014  Appellate Division, First Department we see squabbles over whether plaintiff’s attorney may practice law, and whether defendants were served with the summons.

"Contrary to defendants’ contention, plaintiffs’ counsel, a New Jersey firm, need not obtain authorization to do business in New York pursuant to § 1301(a), § 1528 or other provisions of the Business Corporation Law to commence an action in New York courts. While any purported noncompliance with those provisions might have other consequences, it does not affect the ability of the firm’s attorneys to practice in New York and thus to commence these proceedings representatively. Similarly, we reject defendant’s contention that plaintiffs’ counsel, in seeking attorneys’ fees, impermissibly maintained the action on its own behalf, rather than in a representative capacity (see Business Corporation Law § 1312). The action was brought in plaintiffs’ name only, and any award of attorneys’ fees depends on the resolution of the underlying legal malpractice cause of action brought in plaintiffs’ name.

Plaintiffs’ affidavits of service on all defendants constitute prima facie evidence of proper service (Chinese Consol. Benevolent Assn. v Tsang, 254 AD2d 222, 223 [1st Dept 1998]). Defendant Mark Altschul’s conclusory denial that he was served as alleged in the affidavit of service does not suffice to raise an issue of fact to be resolved at a traverse hearing (see e.g. id.; Public Adm’r of County of N.Y. v Markowitz, 163 AD2d 100 [1st Dept 1990]).

To the extent defendants argue that service was incomplete due to the belated filing of proof of service, the argument is unavailing, since failure to file proof of service within the 20-day time period for answering the complaint is not a jurisdictional defect, but a "mere irregularity," and, as plaintiffs acknowledge, service is deemed complete only 10 days after the [*2]late filing (see Weininger v Sassower, 204 AD2d 715, 716 [2d Dept 1994]; see also Nardi v Hirsh, 245 AD2d 205 [1st Dept 1997]). Any purported defects in the form of the affidavit of service, including the sufficiency of the signature, are mere irregularities, not jurisdictional defects that would warrant dismissal of the complaint (see Bell v Bell, Kalnick, Klee & Green, 246 AD2d 442, 443 [1st Dept 1998]).

"