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]).

"

Riverhead:  A huge component of litigation concerning attorneys as parties is for fee collection work.  Often, an attorney will sue in Small Claims Court for a fee.  Sometimes, the attorney will be sued in Small Claims Court and will Counterclaim for fees.  What happens when the fee is in excess of $ 5,000.  Often, the attorney simply lowers the claim to less than $ 5,000 and continues in Small Claims Court, happy as a clam.

No more.  Conway v Dejesu Maio & Assoc.  2014 NY Slip Op 24127  Decided on May 19, 2014
District Court Of Suffolk County, Third District  Hackeling, J..    "Mona Conway, an attorney and the above captioned plaintiff, commenced this small claims action seeking to recover $5,000.00 for independent contractor legal services rendered to the defendant law firm Dejesu Maio and Associates. The defendant counterclaimed for $5,000.00 asserting a legal malpractice cause of action. The trial commenced on May 1, 2014 and the defendant’s trial counsel moved for a directed verdict at the close of the plaintiff’s case asserting a subject matter jurisdictional defense in that plaintiff’s claims exceeded the $5,000.00 small claims limit. The Court reserved decision and adjourned the trial.

The undisputed facts are that both parties are admitted attorneys and both sides have retained counsel for the purpose of trial. No pre-trial discovery was undertaken as is usual in a small claims case. The plaintiff’s testimony established that her breach of contract cause of action consists of a $5,341.00 component representing $100 per hour compensation for

of-counsel services rendered in a Federal Court and a claim of entitlement to recover undetermined contingency fees in two New York State Court personal injury actions.
The jurisdictional issue presented for disposition is whether a plaintiff can waive any recovery over $5,000.00 so as to fall within the $5,000.00 small claims jurisdictional limit?

The Law
Section 1802 of the Uniform District Court Act (hereafter "UDCA") establishes a jurisdictional limit for a small claims action when it provides "the term small claims . . . shall mean and include any cause of action for money only not in excess of $5,000.00 exclusive of interest and costs . . . " Emphasis added.   Section 202 of the UDCA establishes the District Court’s general jurisdiction when it provides: ":The Court shall have jurisdiction of actions and proceedings . . . where the amount sought to be recovered . . . does not exceed $15,000.00. Emphasis added.

It is clear that the legislature envisioned and authorized plaintiffs to obtain District Court jurisdiction by simply reducing "the amount sought to be recovered." As this language is omitted from Sec. 1802 the Court must infer that this waiver doctrine does not apply to small claims cases. See, NY Statutes §§ 236,240. In its stead the words "cause of action" is substituted into Sec. 1802. As a matter of statutory construction, when the legislature uses different terms in various parts of the statute, it is assumed that a distinction is intended. Doyle v. Gordon, 158 NY2d 248 (Sp. Ct. NY Co. 1954). The Court also notes that "causes of action" may not be "split" to obtain small claims jurisdiction. See A & j Enterprise Solutions, Inc. v. B.A.O. Tech, 11 Misc 3d 173 (Nas. Dist. Ct. 2005). As such it is logical to conclude that a "cause of action" must be valued "as a whole" in determining whether it is appropriate for small claims jurisdiction."

Glens Falls:    In this case two fundamental mistakes plague the attorney.  The first got him into the legal malpractice case, and the second kept him from getting out.  A relatively straightforward employment agreement granted the manager the right to a "hearing" of sorts.  The attorney participated in a termination that did away with the "hearing."  When the attorney was sued, he failed to offer the affidavit of an expert and so his summary judgment was denied.  Both are fundamental issues that should not be the least bit controversial.

Jack Hall Plumbing & Heating, Inc. v Duffy  2012 NY Slip Op 07249 [100 AD3d 1082]  November 1, 2012  Appellate Division, Third Department tells us that "Plaintiff, a corporation owned by John Hall Sr. and his two sons, entered into an employment agreement with its chief operating officer, Russell Scudder. The agreement provided that, prior to its expiration, plaintiff could terminate Scudder for cause by presenting written charges setting forth the basis for the termination and then giving Scudder an opportunity to respond to the charges in writing and to request that plaintiff’s president review his response. To carry out the termination, the president was then required to obtain the consent of the board of directors and to comply with any guidelines set forth in plaintiff’s bylaws.[FN*]

Soon after entering into the agreement, the relationship between the Halls and Scudder [*2]deteriorated to the point that Hall became concerned that he and his sons were in danger of losing the business due to Scudder’s mismanagement. Accordingly, Hall sought legal advice from defendant H. Wayne Judge concerning how to terminate Scudder in compliance with the employment agreement and in view of the urgency caused by the perceived danger to the business. After their meeting, Judge drafted a letter for Hall to give to Scudder. The letter outlined the reasons for Scudder’s termination and informed him that it was effective immediately. Hall and his sons then unanimously voted to terminate Scudder without giving Scudder notice and an opportunity to respond, after which Hall gave Scudder the letter drafted by Judge. Scudder responded by commencing an action against plaintiff for breach of the employment agreement. Although plaintiff, represented by Judge, prevailed at the trial of that action, we reversed and found that plaintiff failed to comply with the unambiguous terms of the employment agreement by terminating Scudder without any notice or opportunity to respond (Scudder v Jack Hall Plumbing & Heating, 302 AD2d 848 [2003]). Plaintiff then commenced this action alleging that defendants committed legal malpractice by negligently advising plaintiff in connection with Scudder’s termination. After joinder of issue and discovery, defendants moved for summary judgment dismissing plaintiff’s complaint. Finding that plaintiff’s opposing papers were inadequate to raise an issue of fact, Supreme Court granted the motion."

"Plaintiff contends on appeal that defendants failed to meet their initial burden of presenting evidence in admissible form establishing that they had exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in discharging their obligations to plaintiff (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Adamski v Lama, 56 AD3d 1071, 1072 [2008]). This issue of the adequacy of the professional services provided here requires a professional or expert opinion to define the standard of professional care and skill owed to plaintiff and to establish whether the attorney’s conduct complied with that standard (see Tabner v Drake, 9 AD3d 606, 610 [2004]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]). Plaintiff argues that the affirmation by Judge submitted in support of defendants’ motion for summary judgment fails to establish his prima facie compliance with the standard of care. We must agree."

ITHACA:     There are two rules on how to divide contingent attorney fees.  One rule applies when the dispute is between the client and the attorney,and a second rule, which is itself more complex, applies when the dispute is between two attorneys.  Here in Wiggins v Kopko  2013 NY Slip Op 02312 [105 AD3d 1132]   April 4, 2013  Appellate Division, Third Department we the full panoply of human interaction…attorneys meeting each other, liking eachother and then falling out of love.

"In October 2004, a client retained the law firm of Wiggins & Masson, LLP, in which plaintiff was a partner, to represent him in a legal malpractice action on a contingency fee basis. Plaintiff thereafter retained defendant Edward E. Kopko to work on this action. Kopko became the attorney with primary responsibility for the action, and eventually entered into a partnership agreement with plaintiff, forming defendant Wiggins & Kopko, LLP (hereinafter referred to as the partnership).[FN1] Disagreements later arose and, in May 2010, plaintiff commenced this action seeking a judgment dissolving the partnership and compelling Kopko to pay certain legal fees.

Upon learning that Kopko had drafted a letter to the client advising him of the partnership’s dissolution and soliciting him as a personal client, plaintiff telephoned the client, [*2]discussed the deteriorating relationship between himself and Kopko and warned the client that fee issues might result if he signed a retainer agreement with Kopko. Angered by this call, the client wrote a letter stating that he was discharging plaintiff and the partnership and retaining Kopko, followed—apparently after consultation with Kopko—by a second letter stating that he had discharged plaintiff, the partnership and Wiggins & Masson "for cause." Plaintiff thereafter executed a consent to withdraw himself, the partnership and Wiggins & Masson from the malpractice action and to substitute Kopko. The action was later tried before a jury, resulting in a substantial award."

"We therefore agree with Supreme Court that plaintiff is entitled to share in the fee obtained in the malpractice action on the partnership’s behalf. However, we disagree with the further conclusion that the amount should be determined on the basis of quantum meruit. As against a client, a discharged attorney is entitled to a fee determined on a quantum meruit basis at the time of discharge, but different rules apply where, as here, the fee dispute is between attorneys (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d 454, 457-458 [1989]). In such circumstances, an outgoing attorney may choose to receive immediate compensation on a quantum meruit basis at discharge or to receive a share of a contingent fee based on a proportionate share of the work he or she performed; if no such election is made at the time of discharge, the attorney is presumed to have elected a contingent fee (see Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d 655, 658-660 [1993]; Matter of Benjamin E. Setareh, P.C. v Cammarasana & Bilello Esqs., 35 AD3d 600, 601 [2006]; Connelly v Motor Veh. Acc. Indem. Corp., 292 AD2d 332, 333 [2002]; see also Buchta v Union-Endicott Cent. School Dist., 296 AD2d 688, 689 [2002]). Here, Supreme Court found that plaintiff elected quantum meruit compensation in a July 2011 memorandum of law. Even assuming that an election could be made in this manner, it would have been untimely, as the discharge had occurred more than a year earlier. Nothing in the record reveals that an election as to payment of fees was made at or near the time of discharge. Accordingly, as counsel of record, the partnership is presumed to have elected a contingent fee computed according to the proportionate share of work that was performed on its behalf and that of its predecessor firms before the June 2010 substitution of Kopko, to be divided as appropriate between the partners (see Grant v Heit, 10 AD3d 539, 540 [2004], lv denied 4 NY3d 701 [2004]).

Finally, we reject Kopko’s contention that plaintiff and the partnership waived a fee by failing to petition the court for a lien pursuant to Judiciary Law § 475. Such a lien attaches by operation of law for the attorney of record when an action is commenced, even if that attorney is no longer counsel of record upon the action’s conclusion (see Klein v Eubank, 87 NY2d 459, 462-463 [1996]; Matter of Cohen v Grainger, Tesoriero & Bell, 81 NY2d at 657-658). An outgoing attorney’s failure to seek statutory enforcement does not defeat his or her entitlement to [*4]a fee (see Lai Ling Cheng v Modansky Leasing Co., 73 NY2d at 458-459; Ruta & Soulios, LLP v Litman & Litman, P.C., 27 AD3d 236, 236 [2006])."

The Appellate Division looked over a Supreme Court decision dismissing a legal malpractice case.  The case alleged that the estate attorneys advised the executor to pay the estate taxes from decedent’s estate rather than using an alternative method which would have saved plaintiff a specific amount of tax.  In Estate of Feder v Winne, Banta, Hetherington, Basralian & Kahn, P.C.
2014 NY Slip Op 03593  Decided on May 15, 2014 Appellate Division, First Department wrote:

"The motion court properly dismissed the legal malpractice claim. Plaintiff, the wife of decedent, failed to adequately allege that defendant acted negligently in advising her to pay the estate tax out of decedent’s estate, rather than making a qualified terminable interest property (QTIP) election (see IRC § 2056[b][7]). Such a QTIP election would have deferred payment of any estate taxes until plaintiff’s death, at which time they would be paid out of her estate. Defendant explained that while a QTIP election might have resulted in an immediate tax savings during plaintiff’s lifetime, it could have left significantly less to the residuary beneficiaries of decedent’s estate. Defendant’s legal obligation was to the estate, not to plaintiff. Thus, as the motion court concluded, defendant selected one among several reasonable courses of action (see Rosner v Paley, 65 NY2d 736, 738 [1985]; Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552 [1st Dept 2011]). Indeed, another firm with whom plaintiff consulted stated that defendant’s analysis was correct. To the extent plaintiff argues that defendant failed to consider other alternatives, such as gifts or other trusts, those options would have contradicted the decedent’s apparent testamentary intent to retain control and distribute the remainder of his assets to his children upon plaintiff’s death.

The court also correctly concluded that plaintiff failed to adequately allege that defendant’s conduct proximately caused any ascertainable damages. Plaintiff’s damages claim was based largely on speculation that the estate tax payment could have been avoided in the future, which, as plaintiff itself acknowledged in her motion papers, depended on too many [*2]uncertainties, including future tax laws, tax rates, and the future value of the trust property (see e.g. Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

"