Here is a case about the attempt to re-make a movie.  It did not go well.  Plaintiff had invested $ 4.5 million in order to put together, or remake, or work with "Dance Cuba"  She retained Davis & Gilbert to handle the transfer of ownership. The transfer went well, but someone forgot to take care of obtaining consents from a number of "sampled" copyright holders. 

Candela Entertainment, Inc. v Davis & Gilbert, LLP  2014 NY Slip Op 30977(U)  April 11, 2014
Sup Ct, New York County  Docket Number: 150553/2011  Judge: Eileen Bransten  tells us the story of what happens when a corporate individual (usually an entrepreneur) sues along with the company.

"Relevant to the instant litigation, significant portions of the "Dance Cuba" film incorporate copyrighted materials for which Illume had signed licensing agreements. (Am. Compl. . 15.) These licensing agreements required that Illume obtain consent from the licensors before any transfer of intellectual property rights could be made. (Am. Compl. 19.) While there is a dispute as to whose duty it was to obtain the consents, the Complaint alleges that no licensor ever granted consent to any assignment. (Am. Compl.  19.) The Amended Complaint further alleges that Defendant’s failure to advise that obtaining consents was necessary created a cloud on the film’s title, which prevented Plaintiffs from seeking new investors and completing the film. (Am. Compl. 3.)  Plaintiffs filed the Amended Complaint on June 10, 2013, asserting that Defendant’s "failure[] to properly understand and advise Plaintiffs as to the structure, the transactions and the effect of the documents utilized in the transactions," constituted (i) negligence, (ii) breach of contract, and (iii) breach of fiduciary duty. Defendant now seeks dismissal of the Amended Complaint. Plaintiffs oppose. "

"As a threshold matter, to maintain a cause of action for legal malpractice, the plaintiff must plead the existence of an attorney-client relationship. See, e.g., AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 N.Y.3d 582, 595 (2005) (affirming dismissal of legal malpractice claim for failure to plead facts showing actual privity, near privity, or an exception to privity). In order to defeat a motion to dismiss, a party must plead facts showing the privity of an attorney-client relationship, or a relationship so close as to approach privity. Cal. Pub. Employees Ret. Sys. v. Shearman & Sterling, 95 N.Y.2d 427, 434 (2000) (affirming dismissal of legal malpractice claim for failure to plead actual privity or near privity). t. Newport Cannot Establish Express Privity While it is undisputed that D&G represented Candela, Newport alleges that she too was represented by D&G. Newport argues that privity existed because she signed D&G’s retainer agreement. Defendant argues that documentary evidence refutes the Amended Complaint’s claims of express privity between Newport and D&G, and thus Newport fails to state a cause of action for legal malpractice. Defendant argues that there can be no privity because the retainer agreement is addressed solely to Candela and that Newport signed all pertinent documents simply on behalf of Candela. When dealing with issues of contract interpretation, courts must construe the
agreement according to the parties’ intent, and the best evidence of what parties to a written agreement intended is what was said in the writing. See, e.g., Slatt v. Slatt, 64 N.Y.2d 966, 966 (1985). Courts may not fashion a new contract for the parties under the guise of interpreting the writing. See, e.g., Tanking v. Port. Auth. of N. Y. & N.13 N.Y.3d 486, 490 (2004) (holding that a court may not "rewrite the contract and supply a specific obligation the parties themselves did not spell out") "

Here is a familiar scenario.  Plaintiff litigates case for a period of time. Something goes wrong, or it appears that some element is missing from the mix, and the case is settled.  Better settled than lost, but when that happens, the question becomes, why was it settled.  Was it a good move, or was it required because of some mistake of counsel.  An example might be that when the case is ready for trial, and the note of issue has already been filed, it is discovered that a witness will be excluded because no pre-note notice was given.  Settlement of the case is essential, because plaintiff knows it cannot win without the witness.  It can be said that settlement was effectively compelled by mistakes of counsel.

In Benishai v Epstein   2014 NY Slip Op 02404   Decided on April 9, 2014   Appellate Division, Second Department  we see an analogous situation.
 

"To recover damages in a legal malpractice action, a plaintiff must establish "that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a [*2]member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301, 302; see Held v Seidenberg, 87 AD3d 616, 617; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018). "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" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). " A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel’" (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083, quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430). Nonetheless, a plaintiff’s conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice (see Boone v Bender, 74 AD3d 1111, 1113; Holschauer v Fisher, 5 AD3d 553, 554).

""In determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’" (Sierra Holdings, LLC v Phillips, Weiner, Quinn, Artura & Cox, 112 AD3d 909, 910, quoting Leon v Martinez, 84 NY2d 83, 87-88). A complaint in a legal malpractice action will be dismissed pursuant to CPLR 3211(a)(7) where "it fails to plead specific factual allegations demonstrating that, but for the . . . defendant’s alleged negligence, there would have been a more favorable outcome in the underlying proceeding or that the plaintiff would not have incurred any damages" (Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813). Here, viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it failed to plead specific factual allegations demonstrating that, but for the defendant’s alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (id.; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083). Moreover, nowhere does the complaint allege that the settlement was compelled by the mistakes of counsel".

 

 

We often see a "pot and the kettle" issue in legal malpractice cases.  Example:  Plaintiff trips and falls, and her attorney sues the City.  City successfully shows that it had no big apple notice, and that it did not create the defect in the street.  Plaintiff then sues in legal malpractice arguing that photos show that other construction entities were involved, and that attorney departed when he did not sue those entities.  Plaintiff criticizes attorney for not doing thorough investigation.  It later turns out that not only the two construction companies shown in the photo were working there, but others were as well.  Legal malpractice case is lost on the same grounds as the underlying case.  Ironic?

Dalewitz v Gropper  2014 NY Slip Op 30892(U)  April 7, 2014  Supreme Court, New York County
Docket Number: 100198/2007  Judge: Jeffrey K. Oing leads us to this conclusion.  In order to avoid "speculation" you must cover all the bases.  "In bringing the instant action, plaintiff contends that
defendant committed legal malpractice because he sued the City, when Empire City Subway ("ECS") and/or Consolidated Edison ("Con Ed") may have been the responsible parties. Plaintiff bases her claim on the fact that attached to the complaint in the underlying action were two photographs of the accident site (Klein Affirm., Ex. P). According to plaintiff, a review of the
two photographs reveals the letters "CS" spray-painted on the roadway and a metal plate in the crosswalk with the letters "ECS" etched onto the plate. Another photograph of the accident scene
shows a barricade with the letters "ECS" stenciled across it (Id., Ex. Q).

Plaintiff ‘s claim is simply too speculative and attenuated. The record indicates that no fewer than four different entities were issued permits to open the roadway at or near the intersection, and plaintiff’s inability to identify which of these entities was responsible for or created the depression renders her contentions entirely conjectural. Additionally, the record does not support a finding that the depression in t.he crosswalk constitute an actionable, dangerous condition. Plaintiff’s testified at her EBT in underlying action that she was unsure if she actually fell or just twisted her ankle, that she did not know whether her foot was partially or completely in the depression at the time her ankle twisted, and that she did not even know if her foot got "caught" in the depression.

Moreover, plaintiff fails to raise a triable issue of fact. Instead, rather than proffer sufficient evidentiary proof, plaintiff s attorney argues that, "upon information and belief," ECS and Con Ed are responsible for the alleged defect. Her arguments are based entire on speculation and conjecture and are insufficient to preclude a finding of summary judgment in favor of defendant."

The irony of mistakes made in a legal malpractice action, which of course pleads that mistakes were made in the underlying case is not lost on us.  Pro-se legal malpractice litigation is a rich source of examples. Klein v Octobre  2014 NY Slip Op 30907(U)  April 7, 2014  Supreme Court, New York County  Docket Number: 155296/12  Judge: Cynthia S. Kern shows what happens when litigants spar over service issues.  Often, the entire case comes apart over a triffle.

"The relevant facts are as follows. On or about August 8, 2012, plaintiff, prose, filed a Summons with Notice with the clerk of this court alleging causes of action for legal malpractice and violation of Judiciary Law § 487 arising from legal representation she was provided by defendant in an underlying neglect of a minor proceeding. On December 5, 2012, plaintiff served defendant with the Summons with Notice. On January 2, 2013, defendant, who was then pro se, served plaintiff with a Notice of Appearance and Demand for a Complaint. Plaintiff received the Notice of Appearance and Demand for a Complaint but rejected the documents, via two Notices of Rejection, both dated January 31, 2013, on the ground that defendant, as a party to the action, improperly served the documents herself in violation of CPLR § 2103(a). Thereafter, defendant retained counsel and served a second Notice of Appearance and Demand for a Complaint on plaintiff on May 3, 2013 and e-filed same on June 5, 2013. On June 7, 2013, plaintiff contacted defendant’s counsel via e-mail confirming her receipt of the Notice of Appearance and Demand for a Complaint and advised that the address listed on her pleadings, 1211 Atlantic A venue, Brooklyn, New York 11216, is not her residence but rather a business service center. However, plaintiffs e-mail did not provide an alternative address for the purpose of service. On June 21, 2013, plaintiff filed a third Notice of Rejection of the second Notice of Appearance and Demand for a Complaint on the grounds that she did not receive the hard copies of the papers because of a lack of notice from the business center which receives her mail, that the Notice of Appearance and Demand for a Complaint is duplicative and that it is untimely. Additionally, on June 28, 2013, plaintiff filed a fourth Notice of Rejection of the Notice of Appearance and Demand for a Complaint on the grounds that it is duplicative, it is untimely, it was improperly served as it was mailed from without the state and that it was not electronically filed. Defendant then brought the instant motion to dismiss the action for failure to serve a complaint on the basis that her second Notice of Appearance and Demand for a
Complaint was valid.

In the instant action, defendant’s motion for an Order pursuant to .CPLR § 30 l 2(b) dismissing the action for failure to serve a complaint is granted. Defendant’s first Notice of Appearance and Demand for a Complaint, served on January 31, 2013, was invalid pursuant to CPLR § 2103(a) on the ground that said documents were served upon plaintiff by defendant herself and not by a non-party of the age of eighteen years or older. However, such defect was not fatal to the action as "[a ]t any stage of an action, the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded." CPLR § 2001. Thus, defendant was entitled to serve a second Notice of Appearance and Demand for a Complaint by the proper means, which was done on May 3, 2013. Defendant properly served the second Notice of Appearance and Demand for a Complaint on plaintiff at the address provided by plaintiff in her Summons with Notice. See CPLR § 2103( c )(stating that if a party has not appeared by an attorney, service upon that party may be made by mailing the papers to the address designated by that party). Plaintiffs assertion that the address listed on the Summons with Notice is not her actual place of residence but rather that of the business center which receives her mail is unavailing. That address was the only address listed by plaintiff on the Summons with Notice provided to defendant and plaintiff has not provided defendant with any alternative address. Thus, as more than twenty days have elapsed since defendant served her demand for a complaint and plaintiff has yet to serve a complaint, the action must be dismissed.

The irony of mistakes made in a legal malpractice action, which of course pleads that mistakes were made in the underlying case is not lost on us.  Pro-se legal malpractice litigation is a rich source of examples. Klein v Octobre  2014 NY Slip Op 30907(U)  April 7, 2014  Supreme Court, New York County  Docket Number: 155296/12  Judge: Cynthia S. Kern shows what happens when litigants spar over service issues.  Often, the entire case comes apart over a triffle.

"The relevant facts are as follows. On or about August 8, 2012, plaintiff, prose, filed a Summons with Notice with the clerk of this court alleging causes of action for legal malpractice and violation of Judiciary Law § 487 arising from legal representation she was provided by defendant in an underlying neglect of a minor proceeding. On December 5, 2012, plaintiff served defendant with the Summons with Notice. On January 2, 2013, defendant, who was then pro se, served plaintiff with a Notice of Appearance and Demand for a Complaint. Plaintiff received the Notice of Appearance and Demand for a Complaint but rejected the documents, via two Notices of Rejection, both dated January 31, 2013, on the ground that defendant, as a party to the action, improperly served the documents herself in violation of CPLR § 2103(a). Thereafter, defendant retained counsel and served a second Notice of Appearance and Demand for a Complaint on plaintiff on May 3, 2013 and e-filed same on June 5, 2013. On June 7, 2013, plaintiff contacted defendant’s counsel via e-mail confirming her receipt of the Notice of Appearance and Demand for a Complaint and advised that the address listed on her pleadings, 1211 Atlantic A venue, Brooklyn, New York 11216, is not her residence but rather a business service center. However, plaintiffs e-mail did not provide an alternative address for the purpose of service. On June 21, 2013, plaintiff filed a third Notice of Rejection of the second Notice of Appearance and Demand for a Complaint on the grounds that she did not receive the hard copies of the papers because of a lack of notice from the business center which receives her mail, that the Notice of Appearance and Demand for a Complaint is duplicative and that it is untimely. Additionally, on June 28, 2013, plaintiff filed a fourth Notice of Rejection of the Notice of Appearance and Demand for a Complaint on the grounds that it is duplicative, it is untimely, it was improperly served as it was mailed from without the state and that it was not electronically filed. Defendant then brought the instant motion to dismiss the action for failure to serve a complaint on the basis that her second Notice of Appearance and Demand for a
Complaint was valid.

In the instant action, defendant’s motion for an Order pursuant to .CPLR § 30 l 2(b) dismissing the action for failure to serve a complaint is granted. Defendant’s first Notice of Appearance and Demand for a Complaint, served on January 31, 2013, was invalid pursuant to CPLR § 2103(a) on the ground that said documents were served upon plaintiff by defendant herself and not by a non-party of the age of eighteen years or older. However, such defect was not fatal to the action as "[a ]t any stage of an action, the court may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded." CPLR § 2001. Thus, defendant was entitled to serve a second Notice of Appearance and Demand for a Complaint by the proper means, which was done on May 3, 2013. Defendant properly served the second Notice of Appearance and Demand for a Complaint on plaintiff at the address provided by plaintiff in her Summons with Notice. See CPLR § 2103( c )(stating that if a party has not appeared by an attorney, service upon that party may be made by mailing the papers to the address designated by that party). Plaintiffs assertion that the address listed on the Summons with Notice is not her actual place of residence but rather that of the business center which receives her mail is unavailing. That address was the only address listed by plaintiff on the Summons with Notice provided to defendant and plaintiff has not provided defendant with any alternative address. Thus, as more than twenty days have elapsed since defendant served her demand for a complaint and plaintiff has yet to serve a complaint, the action must be dismissed.

Allentown, PA is the epicenter of this legal malpractice case.  A group of investors wanted to start a nightclub/bar, and started to explore the Pennsylvania countryside in order to locate the Volcano, where they would set up bar.

Things did not go well.  Allentown was just not ready for the Volcano.  It was too loud, and its permits were not renewed.  The NY attorneys signed up to litigate, even though they were not admitted in PA.  The problem begins. It ends with a choice of law question and the borrowing statute.

Patel v Scheurer  2014 NY Slip Op 30923(U)  April 4, 2014  Supreme Court, New York County  Docket Number: 650185/08  Judge: Saliann Scarpulla.  "In April 2002, the PLCB notified Volcano that, due to the number of times Volcano had been cited for violating regulations, it might decline to renew the liquor license and amusement permit for the establishment. In a letter dated May 21, 2003, the PLCB gave final notice to Volcano that its amusement permit would not be renewed and, ultimately, Volcano went out of business. Believing that it had been discriminatory targeted by the PLCB, plaintiffs consulted with Terence C. Scheurer, Esq. ("Scheurer") and signed a retainer agreement with the law firm of Scheurer & Hardy, PC ("S&H") on January 30, 2002 (the "Retainer"). S&H, a New York firm whose lawyers were not admitted to practice in Pennsylvania, was retained to "represent[] [Volcano] in a possible civil matter against the Pennsylvania State Police along
with other possible individuals and/or entities."2 Notice of Motion, Ex. J, ii l (emphasis in original). The Retainer further provides that it "does not cover any additional work in connection with appeals from any court decisions, orders, or any other actions." Id., ii 7. Finally, the Retainer states that ~'[a]ny and all changes to this retainer agreement must be made in writing and signed by both parties."

"Scheurer allegedly shared his views with LaManna regarding plaintiffs’ potential claims and LaManna agreed to draft and file plaintiffs’ complaint (the "Federal Complaint"). LaManna filed the Federal Complaint in the District Court for the Eastern District of Pennsylvania on November 15, 2002. Consistent with the terms of the Amended Retainer, defendants were listed as counsel on the Federal Complaint, but they did not sign it. Nevertheless, S&H claims that it did not authorize or consent for LaManna to put their firm name and address on the Federal Complaint, did not sign any pleading filed in Federal Court on behalf of plaintiffs, and did not file a Notice of Appearance in the Federal Action. By order dated January 31, 2005, the District Court entered summary judgment in favor of defendants and dismissed the complaint in its entirety. Plaintiffs filed a motion for reconsideration and, by order dated June 20, 2005, the Court granted that motion in part, but affirmed summary judgment dismissing the complaint. Plaintiffs commenced the present action on June 17, 2008, asserting causes of action for legal malpractice, breach of fiduciary duty, and breach of contract based on defendants’ "

"Because plaintiffs’ claim for legal malpractice was not filed within two years of the alleged malpractice and plaintiffs do not allege, much less meet, this standard for tolling under Pennsylvania }aw, their claim is time-barred. See Kat House Prods., LLCv. Paul, Hastings, Janofsky& Walker, LLP, 2009WL1032719(Sup. Ct., NY Co. Apr. 6, 2009)( dismissing legal malpractice claims time-barred in California); see also Portfolio Recovery Assoc., LLC v. King, 14 N.Y.3d 410 (2010)(holding that because contract claims are time-barred in Delaware, under CPLR 202 they are time-barred in New York); Metropolitan Life Ins. Co. v. Morgan Stanley, 2013 WL 3724938, *8 (Sup. Ct., NY Co. June 8, 2013). Plaintiffs’ claim for breach of fiduciary duty is also subject to a two-year statute of limitations under Pennsylvania law. See Zimmer v. Gruntal & Co., Inc., 732 F.Supp. 1330, 1336 (W.D. Pa. 1989)(citing 42 Pa. Cons. Stat. 5524(7))."

Allentown, PA is the epicenter of this legal malpractice case.  A group of investors wanted to start a nightclub/bar, and started to explore the Pennsylvania countryside in order to locate the Volcano, where they would set up bar.

Things did not go well.  Allentown was just not ready for the Volcano.  It was too loud, and its permits were not renewed.  The NY attorneys signed up to litigate, even though they were not admitted in PA.  The problem begins. It ends with a choice of law question and the borrowing statute.

Patel v Scheurer  2014 NY Slip Op 30923(U)  April 4, 2014  Supreme Court, New York County  Docket Number: 650185/08  Judge: Saliann Scarpulla.  "In April 2002, the PLCB notified Volcano that, due to the number of times Volcano had been cited for violating regulations, it might decline to renew the liquor license and amusement permit for the establishment. In a letter dated May 21, 2003, the PLCB gave final notice to Volcano that its amusement permit would not be renewed and, ultimately, Volcano went out of business. Believing that it had been discriminatory targeted by the PLCB, plaintiffs consulted with Terence C. Scheurer, Esq. ("Scheurer") and signed a retainer agreement with the law firm of Scheurer & Hardy, PC ("S&H") on January 30, 2002 (the "Retainer"). S&H, a New York firm whose lawyers were not admitted to practice in Pennsylvania, was retained to "represent[] [Volcano] in a possible civil matter against the Pennsylvania State Police along
with other possible individuals and/or entities."2 Notice of Motion, Ex. J, ii l (emphasis in original). The Retainer further provides that it "does not cover any additional work in connection with appeals from any court decisions, orders, or any other actions." Id., ii 7. Finally, the Retainer states that ~'[a]ny and all changes to this retainer agreement must be made in writing and signed by both parties."

"Scheurer allegedly shared his views with LaManna regarding plaintiffs’ potential claims and LaManna agreed to draft and file plaintiffs’ complaint (the "Federal Complaint"). LaManna filed the Federal Complaint in the District Court for the Eastern District of Pennsylvania on November 15, 2002. Consistent with the terms of the Amended Retainer, defendants were listed as counsel on the Federal Complaint, but they did not sign it. Nevertheless, S&H claims that it did not authorize or consent for LaManna to put their firm name and address on the Federal Complaint, did not sign any pleading filed in Federal Court on behalf of plaintiffs, and did not file a Notice of Appearance in the Federal Action. By order dated January 31, 2005, the District Court entered summary judgment in favor of defendants and dismissed the complaint in its entirety. Plaintiffs filed a motion for reconsideration and, by order dated June 20, 2005, the Court granted that motion in part, but affirmed summary judgment dismissing the complaint. Plaintiffs commenced the present action on June 17, 2008, asserting causes of action for legal malpractice, breach of fiduciary duty, and breach of contract based on defendants’ "

"Because plaintiffs’ claim for legal malpractice was not filed within two years of the alleged malpractice and plaintiffs do not allege, much less meet, this standard for tolling under Pennsylvania }aw, their claim is time-barred. See Kat House Prods., LLCv. Paul, Hastings, Janofsky& Walker, LLP, 2009WL1032719(Sup. Ct., NY Co. Apr. 6, 2009)( dismissing legal malpractice claims time-barred in California); see also Portfolio Recovery Assoc., LLC v. King, 14 N.Y.3d 410 (2010)(holding that because contract claims are time-barred in Delaware, under CPLR 202 they are time-barred in New York); Metropolitan Life Ins. Co. v. Morgan Stanley, 2013 WL 3724938, *8 (Sup. Ct., NY Co. June 8, 2013). Plaintiffs’ claim for breach of fiduciary duty is also subject to a two-year statute of limitations under Pennsylvania law. See Zimmer v. Gruntal & Co., Inc., 732 F.Supp. 1330, 1336 (W.D. Pa. 1989)(citing 42 Pa. Cons. Stat. 5524(7))."

Small Smiles is a horror story of dental marketing, and the abuse of children.  There is a legal malpractice aspect to it, which is wholly overshadowed by the callous dentistry here.

"All plaintiffs allege that: (1) defendants engaged in a scheme to treat patients for Forba’s profits rather than for plaintiffs’ dental needs; (2) the New York clinics operated in violation of law because they were not owned or controlled by licensed dentists; (3) defendants engaged in a course of conduct that intended to create "a culture at the clinics that put revenue generation as a top priority at the expense of quality of dental treatment" (Compl. ¶56); (4) defendants utilized a common "fraudulent script" with patients regarding the risks of restraints (Compl. ¶68); (5) defendants engaged in deceptive acts or practices; and (6) the treating dentists committed dental malpractice by following the Forba business model of increasing production (procedures) per patient and wrongfully restraining children.
 

Here are some examples:

"Plaintiff Bohn treated at the Syracuse Small Smiles clinic between May 2006 and March 2008, when he was between the ages of three and five. During that time he had four root canals with crowns, seven fillings, two extractions and one crown without a corresponding root canal. He was restrained twice, and on three occasions his teeth were filled without anesthesia. Compl. ¶155.

Defendant Montanye treated at the Syracuse Small Smiles clinic between June 2006 and September 2007, when he was between the ages of two and three. During that time he had four root canals with crowns and six fillings. He was restrained three times, and on three occasions his teeth were filled without anesthesia. Compl. ¶ 163.

Plaintiff Fortino treated at the Syracuse Small Smiles clinic between August 2005 and February 2007, when she was between the ages of four and six. During that time, she had nine root canals with crowns, two fillings, two crowns without corresponding root canals and one extraction. She was restrained four times. Compl. ¶157.

Plaintiff Kenyon treated at the Syracuse Small Smiles clinic between April 2005 and September 2008, when he was between the ages of three and seven. During that time, he had six root canals with crowns and seven fillings. He was restrained three times, and on three occasions his teeth were filled without anesthesia. Compl. ¶158.

Plaintiff Mathews treated at the Syracuse Small Smiles clinic between June 2005 and May 2006, when he was between the ages

of three and four. During that time, he had five teeth filled, two extractions, and one root canal with a crown. He was restrained five times, and on two occasions his teeth were filled without anesthesia. Compl. ¶160. "
 

We’ll discuss the legal malpractice aspects tomorrow.

A real estate development gone wrong.  It’s a common litigation situation, and attorneys are often in for the legal malpractice aspect of the case.  Here, in YDRA,LLC v Mitchell   2014 NY Slip Op 50505(U)    Decided on April 3, 2014   Supreme Court, Queens County   Siegal, J.
 

Supreme Court, Queens County untwists the skein of relationships and claims. 

"On or about September 2, 2012, Plaintiff commenced the within action asserting claims of legal malpractice, architectural malpractice, fraudulent inducement, contract recision and negligence.

Papa was retained by Paul Sklar ("Sklar") by written agreements dated March 15, 2006 and August 9, 2006, to provide a zoning analysis of the subject real property to get Department of Building approval for the construction of a new building on an adjacent lot while the existing building remained. Papa completed his services but Whitestone 8888 Corp opted not to construct the new building. Papa contends that its services were completed at this point.

Plaintiff took title to the property from Whitestone in January of 2009, retaining defendant Mitchell, & Incantalupo ("Mitchell") and Wax Ferraro Architect, PC ("Ferraro") to assist with the purchase.

Plaintiff ultimately brought the within action for breach of contract and negligence as a result of Plaintiff’s inability to secure approval for new construction. On or about November 23, 2011, Plaintiff executed a Stipulation of Discontinuance in favor of Christopher V. Papa. However, prior to the discontinuance defendant Mitchell and Ferraro asserted cross-claims against Papa for contribution and indemnification. "

"Initially, Papa contends that Mitchell and Ferraro may not maintain an action for contribution because the Plaintiff seeks to recover only economic losses. Pursuant to CPLR 1401, "two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought." Contribution is unavailable for claims seeking recovery for purely economic loss resulting from the breach of contractual obligations. (Capstone Enterprises of Port Chester, Inc. v. Board of Educ. Irvington Union Free Capstone Enterprises of Port Chester, Inc. v. Board of Educ. Irvington Union Free [*3]School Dist., 106 AD3d 856 [2nd Dept 2013] citing Clark-Fitzpatrick, Inc. v. Long Island R. Co., 70 NY2d 382 [1987]; Galvin Brothers, Inc. v. Town of Babylon, 91 AD3d 715 [2nd Dept 2012].) In the within action, Plaintiff is seeking the purely economic relief of recovery of the purchase price of the Property. Accordingly, a claim for contribution from Papa must be dismissed. "

"A right to indemnification can only arise where there is a written contract providing for indemnification or whether indemnification is implied under common law. (Facilities Dev. Corp. v Miletta, 180 AD2d 97 [3rd Dept 1992]; Rosado v Proctor & Schwartz, 66 NY2d 21 [1985] citing Prosser and Keeton, Torts § 51, at 341 [5th ed].) It is undisputed that there is no contractual relationship between Mitchell or Ferraro. Furthermore, Mitchell and Ferraro’s liability is based upon the their alleged breach of obligations owed to the Plaintiff, rather than upon vicarious liability attributed solely to the fault of Papa, therefore Mitchell and Ferraro do not have a legally viable claim for implied indemnification against Papa. (Mount Vernon Fire Ins. Co. v Mott, 179 AD2d 626 [2nd Dept 1992]; Dormitory Auth. of State of NY v Caudill Rowlett Scott, 160 AD2d 179 [2nd Dept 1990].) Accordingly, as Mitchell and Ferraro have no contractual relationship with Papa and each of the defendants were retained separately from Papa, there can be no claim for indemnification as against Papa."

 

 

 

 

Small Smiles is a horror story of dental marketing, and the abuse of children.  There is a legal malpractice aspect to it, which is wholly overshadowed by the callous dentistry here.

"All plaintiffs allege that: (1) defendants engaged in a scheme to treat patients for Forba’s profits rather than for plaintiffs’ dental needs; (2) the New York clinics operated in violation of law because they were not owned or controlled by licensed dentists; (3) defendants engaged in a course of conduct that intended to create "a culture at the clinics that put revenue generation as a top priority at the expense of quality of dental treatment" (Compl. ¶56); (4) defendants utilized a common "fraudulent script" with patients regarding the risks of restraints (Compl. ¶68); (5) defendants engaged in deceptive acts or practices; and (6) the treating dentists committed dental malpractice by following the Forba business model of increasing production (procedures) per patient and wrongfully restraining children.
 

Here are some examples:

"Plaintiff Bohn treated at the Syracuse Small Smiles clinic between May 2006 and March 2008, when he was between the ages of three and five. During that time he had four root canals with crowns, seven fillings, two extractions and one crown without a corresponding root canal. He was restrained twice, and on three occasions his teeth were filled without anesthesia. Compl. ¶155.

Defendant Montanye treated at the Syracuse Small Smiles clinic between June 2006 and September 2007, when he was between the ages of two and three. During that time he had four root canals with crowns and six fillings. He was restrained three times, and on three occasions his teeth were filled without anesthesia. Compl. ¶ 163.

Plaintiff Fortino treated at the Syracuse Small Smiles clinic between August 2005 and February 2007, when she was between the ages of four and six. During that time, she had nine root canals with crowns, two fillings, two crowns without corresponding root canals and one extraction. She was restrained four times. Compl. ¶157.

Plaintiff Kenyon treated at the Syracuse Small Smiles clinic between April 2005 and September 2008, when he was between the ages of three and seven. During that time, he had six root canals with crowns and seven fillings. He was restrained three times, and on three occasions his teeth were filled without anesthesia. Compl. ¶158.

Plaintiff Mathews treated at the Syracuse Small Smiles clinic between June 2005 and May 2006, when he was between the ages

of three and four. During that time, he had five teeth filled, two extractions, and one root canal with a crown. He was restrained five times, and on two occasions his teeth were filled without anesthesia. Compl. ¶160. "
 

We’ll discuss the legal malpractice aspects tomorrow.