What are the rules for use of experts, including when they must be revealed, how they must be noticed, and how a CPLR 3101 notice interacts with jury selection dates?  The answer is that no one knows.

Frankel v Vernon & Ginsburg, LLP  2014 NY Slip Op 04136  Decided on June 10, 2014  Appellate Division, First Department  is a prime example.  Plaintiff sends a CPLR 3101 notice that is said to be insufficient.  Supreme Court incorrectly precludes.  The deficiency is cured by a further notice.  This is just before trial

."Supreme Court incorrectly precluded plaintiff’s legal malpractice expert from testifying on the ground that the initial disclosure was insufficiently detailed. Defendants objected to the disclosure’s sufficiency for the first time in their omnibus motion in limine, presented to the court on the day trial was to begin. Any deficiency was cured by plaintiff’s service of a more detailed supplemental disclosure four days later. Moreover, defendants were aware of the substance of the expert’s proposed testimony because plaintiff had previously submitted the expert’s affidavit in opposition to their motion for summary judgment. As Supreme Court found, defendants have not established that they were prejudiced by receipt of the expert disclosures 4 days after the 30-day minimum set by local rule, or that the delay was willful or intentional (see Ramsen A. v New York City Hous. Auth., 112 AD3d 439, 440 [1st Dept 2013])."

"To establish causation in this legal malpractice action, plaintiff must show that his decedent would have prevailed in the underlying action but for the attorney defendants’ negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). In the underlying action, plaintiff’s decedent asserted causes of action for breach of the warranty of habitability against her cooperative apartment building and for private nuisance against her upstairs neighbors. Accordingly, at trial, to demonstrate the merit of the underlying claim of private nuisance, plaintiff should be permitted to prove, among other things, that his decedent’s neighbors intended to cause the nuisance (see Copart Indus. v Consolidated Edison Co. of N.Y., [*2]41 NY2d 564, 570-571 [1977]). The neighbors’ testimony is relevant to the issue of intent. Therefore, the court improperly precluded that testimony."

A condominium deal gone sour is the genesis of this Judiciary Law 487 case.  This case initially traveled outside the boundaries of typical cases, and was initially heard by a beth din arbitration panel.  Later, it returned to state court and was decided by more conventional means.

Laufer v Skillman Estates, LLC  2014 NY Slip Op 31357(U)  May 23, 2014  Sup Ct, Kings County
Docket Number: 503414/2013  Judge: Ann T. Pfau allows dismissal of the JL 487 claims on res judicata proofs. 

‘Defendants Moshe Junger and Moses Rosner were members of defendant Skillman Estates LLC.  Skillman owned real property in the Williamsburg neighborhood of Brooklyn, and was the sponsor of a proposed condominium project on the ‘property.  Plaintiff Moshe C. Laufer (Laufer) alleges that, on August 17, 2004, he entered into an agreement with Skillman to purchase a 1/12 interest in Skillman’s property (Verified Complaint), and simultaneously Skillman entered into a contract to sell plaintiffs an Interest in condominium units in the building (id, 14).  Laufer complained that  Skillman, Rosner and Junger breached the agreements, and commenced a Beth Din arbitration proceeding, which in time resulted in an award in Laufer’s favor in the amount of $1,551,000 and specific performance, which award was confirmed by this court. "

"The fourth cause of action, which is the only claim directed against defendant Seyfarth Shaw, seeks treble damages under Judiciary Law  487 under the theory that the Forbearance
Agreement was intended to shield Skillman’s assets from Laufer, and also was intended to
deceive the court.."

"Here, the claims alleged in the Verified Complaint against the ECG Defendants arise from the Forbearance Agreement, which was known to plaintiffs before ECG moved for judgment of foreclosure and sale. Plaintiffs were a party to the foreclosure action, and Laufer opposed and cross moved against ECG’s motion for a judgment of foreclosure and sale. There are no facts alleged in the Verified Complaint to explain or justify why the claims against the ECG Defendants are raised now, rather than when the parties litigated the significance of the  vendee’s lien and the Forbearance Agreement in the Foreclosure Action. To the extent that plaintiffs did raise these issues, they were litigated to a final conclusion. Indeed, Laufer argued repeatedly, and without success that his vendee’s lien took precedence."

"Even though the legal theory raised in this proceeding is not identical to that set forth in the mortgage proceeding, the claims against the ECG are barred under the doctrine of res judicata. Moreover, the claims against Seyfarth Shaw and the John Doe attorneys, presumably meant to include Seyfarth Shaw attorneys, are barred under the doctrine of collateral estoppel because they are entirely derivative of the attorneys’ representation of ECG m the prior action, and of its role m presenting the Forbearance Agreement to the court."

Anecdotal evidence suggests that the largest category of attorney-client litigation concerns attorney fees.  Cohen v Hack  2014 NY Slip Op 04068  Decided on June 5, 2014  Appellate Division, First Department is a prime example.  The claim is that the law firm pressured client into changing from a contingent to an hourly fee.  Is this legal malpractice?  No.

"Plaintiff does not assert that defendants’ conduct caused the result of his dispute with his disability insurer to be worse than it would have been. Rather, he argues that defendants, in bad faith and without full disclosure, pressured him into changing from an hourly retainer to a contingency retainer. The

only loss he alleges is the additional fees owed to counsel as a result of changing the retainer. This is fatal to his claim for malpractice (see Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013]; see also Sumo Container Sta. v Evans, Orr, Pacelli, Norton & Laffan, 278 AD2d 169, 170-171 [1st Dept 2000]).

The court correctly held that, despite the submission to arbitration in the retainer agreement, arbitration of the contract claim was inappropriate under the circumstances. The retainer agreement provided for arbitration under part 137 of the Rules of the Chief Administrator of the Courts. However, the gravamen of the contract claim is that it is invalid because of defendants’ misconduct in inducing plaintiff to sign it, or because it created a windfall for defendants. By the express terms of the rules the parties chose to govern their arbitration, claims such as this are not arbitrable since 22 NYCRR 137.1(b)(3) provides that part 137 does [*2]not apply to "claims involving substantial legal questions, including professional malpractice or misconduct" (see Mahler v Campagna, 60 AD3d 1009, 1012 [2d Dept 2009])."

It definitely seems so to us.  The original decision is a short-form order, which is not available to state the Court’s reasoning, but the Appellate Division cites Plaintiff’s arrest at the nursing home where he worked which shows he suffered pecuniary loss. 

Fountain v Ferrara  2014 NY Slip Op 03947  Decided on June 3, 2014  Appellate Division, First Department reiterates the point that hearsay is an acceptable method of opposing summary judgment. 

"Plaintiff’s deposition testimony that he was employed by a nursing home in 1998 when he was arrested, together with his bill of particulars, were sufficient to raise a triable issue of fact as to whether he sustained pecuniary losses resulting from the alleged legal malpractice (see D’Agrosa v Newsday, Inc., 158 AD2d 229, 238 [2d Dept 1990]).

Defendants failed to preserve their argument that plaintiff may not rely upon his deposition testimony since such deposition was taken in an action in which they were not parties and were not represented (see Matter of Brodsky v New York City Campaign Fin. Bd., 107 AD3d 544, 545 [1st Dept 2013]). In any event, the argument is unavailing, since defendants’ absence at the time of the deposition merely renders the deposition transcript hearsay as to them (see Rugova v Davis, 112 AD3d 404 [1st Dept 2013]), and "hearsay evidence may be considered to defeat a motion for summary judgment as long as it is not the only evidence submitted in opposition" (O’Halloran v City of New York, 78 AD3d 536, 537 [1st Dept 2010]). Here, plaintiff also submitted his bill of particulars, and "factual allegations contained in a verified bill of particulars . . . may be considered in opposition to a motion for summary judgment" (Johnson v Peconic Diner, 31 AD3d 387, 388 [2d Dept 2006]).

"

Contrary to the general view of how cases are decided in legal malpractice, the focus is almost always on the underlying case, or the "but for" question. Pannone v Silberstein  2014 NY Slip Op 03944  Decided on June 3, 2014  Appellate Division, First Department is no exception.  Was the Article 78 actually filed on time?  No.  Does that make a good legal malpractice case?  No.

"Plaintiff retained defendants to represent him in an article 78 proceeding that was brought to challenge the termination of his employment as a police officer. The determination followed a disciplinary hearing that was conducted by the Police Department of the City of New York. Plaintiff appeared at the hearing with counsel other than defendants. The events that gave rise to the disciplinary proceeding began with plaintiff’s unauthorized absence from his home while on sick report on July 22, 1998. The decision to terminate plaintiff’s employment was based on a finding that he had made false statements regarding his whereabouts to an investigating officer during a "GO-15" interview that was conducted on July 30, 1998 [FN1]. At the hearing, plaintiff admitted that he knew he was required to remain at his residence while on sick report and that he gave a false account of the reason for his absence at the GO-15 interview.

While represented by defendants, plaintiff commenced the article 78 proceeding, which was transferred to this Court pursuant to CPLR 7804(g) on June 27, 2000. It was alleged in the article 78 petition that the penalty of dismissal was excessive and an abuse of discretion. The instant action arises out of this Court’s dismissal of the article 78 proceeding upon defendants’ failure to timely perfect on behalf of plaintiff [FN2]. 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" (Rudolph 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])."

One of the more interesting legal malpractice cases in the patent area has been the Cold Spring Harbor Laboratory v. Ropes & Gray case.  Cold Spring announced the settlement today which ended a cross-state litigation.  It started in the Eastern District, and was transferred to Massachussets, then dismissed in US District Court, District of Massachusetts  there on jurisdictional grounds.  Revived in state court, it ended in a settlement today.

One interesting casualty was the attorney who wrote the patent application.  Ross Todd of the New York Law Journal reports that Matthew Vincent, the partner who worked on the patent application, had his own bad outcome.

"Vincent was dismissed from Ropes in 2009 after the firm discovered that a patent database company he secretly owned billed the firm and its clients more than $730,000. He resigned from the Massachusetts bar in 2009 while disciplinary charges were pending against him. It was not immediately clear Monday where he is working now. "

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."