New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Interstate Litigation and Legal Malpractice

Posted in Legal Malpractice Cases

Candero v Del Virginia  2019 NY Slip Op 30436(U)  February 26, 2019  Supreme Court, New York County  Docket Number: 151983/2018  Judge: Barbara Jaffe discusses the various relationships and potential legal malpractice in a case which traveled from New York to Florida, and in which the lawfirms kept changing shape.

“Relying on the advice of third-party plaintiff Del Virginia, plaintiffs initiated a bankruptcy proceeding in New York to mitigate liability they faced in another action. Del Virginia also advised them that their Florida residence would be exempt from creditors’ claims. Subsequently, the bankruptcy proceeding was transferred to Florida, where a non-party took over for Del Virginia.

Once in Florida, plaintiffs learned that their Florida residence was not exempt from creditors’ claims, and they were forced to enter into a $200,000 settlement, most of which applied to their Florida residence. Plaintiffs assert that but for Del Virginia’s negligence in advising them to initiate the bankruptcy proceeding, they would not have entered into the settlement and paid attorney fees. (NYSCEF 10). ”

“On March 5, 2018, plaintiffs filed a complaint against Del Virginia for legal malpractice in connection with filing for bankruptcy protection in September 2015. (NYSCEF 10). On June 15, 2018, Del Virginia filed its third-party complaint against Lubliner Kish alleging that to the extent Del Virginia is liable to plaintiffs, Lubliner Kish should be held liable to Del Virginia for either the full amount awarded or a portion thereof. Specifically, Del Virginia alleges that Lubliner Kish was negligent in advising plaintiffs with regard to the settlement. (NYSCEF 11 ). On July 9, 2018, Lubliner Kish changed its name to Lubliner Law PLLC. (NYSCEF 26). ”

“For solicitation within New York by a non-domiciliary to constitute a “transaction of business” for the purposes of CPLR 3 02( a )(1 ), it must be accompanied by business transactions occurring in New York or by sufficient permanence and continuity in New York. ( O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199, 201 [I8t Dept 2003]). Although the screenshots from Lubliner Kish’ s website reflect a targeted solicitation of legal services to New York residents, and its social media posts reflect that it advertises that its staff includes attorneys admitted in New York and that it maintains an office in New York, the screenshots are undated and disputed. Thus, they are not dispositive as to whether Lubliner Kish actually has a tangible presence in New York. (See Venegas v Capric Clinic, 147 AD3d 457, 458 [!81 Dept 2017] [contradicted website information alone is insufficient to establish jurisdiction]). The affirmations of Richard Lubliner and Matthew Kish raise an issue of fact and entitle Del Virginia to limited discovery on the issue. (Id. [contradictions between defendant’s statements and those on his website regarding business transactions in New York warranted discovery]). Thus, although Del Virginia offers no definitive evidence that Lubliner Kish maintains an office in New York or has transacted business in New York with the requisite permanence and continuity he nonetheless advances a “sufficient start” to show that there may be personal jurisdiction over defendant. ”

 

“Possibly Unethical” but No Legal Malpractice

Posted in Uncategorized

“While defendants’ representation of plaintiff was not perfect, and was possibly unethical
(see 22 NYCRR § 1200 [Rule 1.7]), their concurrent representation of three parties with differing
interests does not, in and of itself, state a claim for either cause of action.”  So writes Justice Jaffe in Picarella v Liddle & Robinson L.L.P.  2019 NY Slip Op 30440(U)  February 26, 2019,   Supreme Court, New York County  Docket Number: 154213/2018.  The story of representation, multiple representation and failure at trial is Hollywood worthy.

“On or about May 5, 2011, plaintiff became employed at HSBC Securities (USA) Inc. as Senior Vice President for Institutional Sales and Chief Operational Officer/Deputy Head of Business Development for the Americas. His immediate supervisor was non-party Eileen Hedges. Seated between plaintiff and Hedges on the trading floor for HSBC was non-party Melissa Parvis, an analyst for Institutional Sales who also reported to Hedges.

Plaintiff had observed Hedges disparaging and sexually harassing Parvis, repeatedly engaging her in sexual banter and innuendo, discussing her own sexual activities, and once, exposing her breasts to plaintiff and Parvis on the HSBC trading floor. Plaintiff unsuccessfully and repeatedly asked Hedges to stop. She then began to retaliate against him.

Plaintiff reported Hedges’s sexual harassment of Parvis to his supervisors and other members of the HSBC management team, including those in human resources, which resulted in Hedges’ s harassment of plaintiff and disparagement of him within the organization. Plaintiff then reported Hedges’ s retaliatory conduct to members of the HSBC management team.”

“In or about June 2012, concerned with HSBC’s failure to address Hedges’s conduct, the firing of Parvis, and Hedges’s conduct toward him following his initial complaints, plaintiff sought legal advice from defendant Hubbard, a partner at defendant L&R. In July 2012, plaintiff signed a retainer agreement with L&R to represent him in connection with any claims he might have against HSBC. Hubbard asked that plaintiff keep him informed of any developments concerning his employment and treatment at HSBC so that it could be determined whether he had a viable claim. ”

“At or about this same time, Hubbard asked that plaintiff introduce him to Parvis in order to represent her, and plaintiff agreed. In the fall of 2012, Parvis retained L&R to represent her in connection with her claims against HSBC, which plaintiff became aware of in October 2012.
Due to Rist’s relationship with Parvis, HSBC retaliated against him as well. He too retained
Hubbard to represent him, of which plaintiff learned in or around December 2012. ”

“Absent a specific allegation in the complaint as to how plaintiffs outcome would have been different had plaintiffs action been filed before Parvis’ s, plaintiff does not state a cause of action for legal malpractice. (See Wagner Davis P.C. v Gargano, 116 AD3d 426, 426 [1st Dept 2014]). In Wagner, an attorney’s former clients alleged that they would have prevailed on a motion seeking a preliminary injunction if it had been filed earlier, whereas the attorney argued that the delay was intended to allow a new expert to prepare a report. (Id.). In affirming the trial court’s rejection of the malpractice claim based thereon, the Court held that the former clients had “failed to establish that they would have been successful on the motion absent counsel’s delay,” and that in any event, the decision to delay filing the motion to allow for a new expert report was a nonactionable strategic decision. (Id.). Here too, not only does plaintiff fail in his complaint to allege how the outcome would have been different had his case been prosecuted first, but the complaint sets forth defendants’ reasonable strategic determination to obtain an adjudication of whether Parvis was harassed, a determination that plaintiff does not challenge beyond conclusorily stating that his case should have preceded Parvis’s. ”

“Even if defendants’ “refusal” to call Parvis was the product of a conflict of interest, the allegation remains fatally conclusory. In any event, plaintiff alleges in the complaint that Parvis’ s settlement with HSBC precluded her from talking about her claims and the terms of her settlement, thereby posing no obstacle to her testifying about the alleged retaliation against plaintiff, and HSBC stipulated to the fact of Parvis’s harassment. Consequently, any alleged conflict arising from defendants’ concurrent representation of Parvis was not the cause of her failure to testify. And even if the settlement agreement effectively precluded her from testifying for plaintiff, nowhere in his complaint does plaintiff allege that independent counsel would have been able to negotiate such a provision out of the agreement with HSBC or that Parvis was otherwise willing to testify or able to testify about HSBC’s retaliation against him. Rather, there is no factual basis within the four comers of the complaint from which it may be reasonably inferred that Parvis would have useful testimony to offer plaintiff, as HSBC did not designate plaintiff a “problem case” or reduce his responsibilities until after Parvis had been fired. All told, plaintiffs allegations reflect a disagreement with defendants’ strategic decisions, as opposed to legal malpractice. ”

“Plaintiffs complaint is overwhelmingly based on conclusory and speculative assertions
that require the drawing of too many inferences to state causes of action for legal malpractice and
a breach of fiduciary duty. (See Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133
AD3d 428, 429 [1st Dept 2015], lv denied 27 NY3d 904 [2016] [the “gross speculation of future
events” in the plaintiffs’ allegations were insufficient to satisfy “but for” causation element
required to state malpractice claim]).

While defendants’ representation of plaintiff was not perfect, and was possibly unethical (see 22 NYCRR § 1200 [Rule 1.7]), their concurrent representation of three parties with differing interests does not, in and of itself, state a claim for either cause of action. That another member of L&R told plaintiff that he “should consider” seeking new counsel “without explanation” does not constitute an admission of a disqualifying conflict, nor does plaintiff so allege. Although plaintiff need not entirely eliminate alternative factors contributing to his loss in the complaint, he failed to allege facts sufficient to show that but for defendants’ malpractice and breach, he would not have sustained loss. (See Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 46 AD3d 354, 355 [1st Dept 2007] [evidence of other factors contributing to loss not considered at pleading stage, but plaintiff must allege that legal malpractice was proximate cause of damages]). ”

 

Continuous Architectural Representation and the Statute of Limitations

Posted in Legal Malpractice Cases

Architectural malpractice would normally be governed by CPLR 214(6) and have a three year statute of limitations.  In Architect v Kodsi, 2019 NY Slip Op 01398  Decided on February 27, 2019  Appellate Division, Second Department the contract called for a 1 year contractual statute of limitations.  However, as we see below, that 1 year period is subject to a continuous representation analysis.

“This breach of contract action arises from an architectural contract in which the plaintiff agreed to provide architectural services for the construction of an ambulatory surgery center in Brooklyn. The defendant Robert Kodsi (hereinafter the defendant) asserted two counterclaims against the plaintiff. The first counterclaim alleged professional malpractice based, inter alia, on the failure of the constructed ambulatory surgery center to obtain accreditation from the Accreditation Association for Ambulatory Health Care because the center did not comply with applicable design and construction standards. The plaintiff moved for summary judgment dismissing the defendant’s first counterclaim, arguing that it fell outside of the one-year statute of limitations provided for in the contract. The Supreme Court denied the motion, finding that a triable issue of fact existed as to whether the continuous representation doctrine tolled the statute of limitations based on work the plaintiff had done within the limitations period in an attempt to remedy the accreditation problem. The plaintiff appeals.

In opposition to the plaintiff’s prima facie showing that the defendant’s counterclaim alleging professional malpractice was commenced outside of the applicable one-year statute of limitations, the defendant raised a triable issue of fact as to whether the continuous representation doctrine applied to toll the running of the limitations period. “The law recognizes that the supposed completion of the contemplated work does not preclude application of the continuous representation toll if inadequacies or other problems with the contemplated work timely manifest themselves after that date and the parties continue the professional relationship to remedy those problems” (Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d 603, 607). Under the circumstances, the evidence of continuing communications between the parties and evidence of the plaintiff’s efforts [*2]to remedy the alleged errors or deficiencies in the architectural plans supported the denial of the plaintiff’s motion for summary judgment dismissing the defendant’s counterclaim alleging professional malpractice (see Bronstein v Omega Constr. Group, Inc., 138 AD3d 906, 908; Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d at 607).”

Legal Malpractice and the Account Stated

Posted in Uncategorized

Lewis Brisbois Bisgaard & Smith LLP v Fishman  2019 NY Slip Op 30413(U) February 15, 2019 Supreme Court, New York County  Docket Number: 655198/2017 Judge: Gerald Lebovits is the story of bad planning and missed opportunities.  Lawfirm hired leading legal malpractice defense firm to defend it.  Why?  Presumably it lacked legal malpractice insurance.  The case did not go well for the defendant law firm.  Why?  It seems that there was no excuse for holding back a six-figure escrow.  And then comes the account stated problem.

“Defendants point out inconsistencies in plaintiffs account-stated claim and allege that defendants protested plaintiffs legal charges orally on several occasions and sent at least two letters of protest dated September 4, 2013, and November 26, 2013. A cause of action for an account stated is

“an agreement between the parties to an account based upon prior
transactions between them with respect to the correctness of the
separate items composing the account and the balance due, if any,
in favor of one party or the other. In the case of an existing
indebtedness, the agreement may be implied as well as express. An
agreement may be implied if a party receiving a statement of
account keeps it without objecting to it within a reasonable time
because the party receiving the account is bound to examine the
statement and object to it, if objection there be. Silence is deemed
acquiescence and warrants enforcement of the implied agreement
to pay …. In the absence of fraud, mistake or other equitable
considerations making it improper to recognize the agreement, it is
conclusive.” (Chisholm-Ryder Co. v Sommer & Sommer, 70 AD2d
429,431 [4th Dept 1979] [internal citations omitted].)

“A client’s receipt and retention of an attorney’s account, without objection within a reasonable time, and agreement to pay a portion of the indebtedness, gives rise to an actionable account stated.” (Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626, 626 [1st Dept 1990].)

In the present case, plaintiff issued 12 separate invoices from June 2011 through January 2013. Defendants’ letters of protest were dated September 4, 2013, and November 26, 2013, which were thus dated two years after the first outstanding invoice was issued and eight months after the last outstanding invoice was issued. Defendants’ objections to legal charges in these letters do not preclude plaintiffs account stated claim as they were made past a reasonable time to object to the account. Further, defendants never disputed any of the invoices issued to them and never contested the accuracy of the bills or billing entries therein, but rather, merely responded to plaintiffs requests for outstanding legal fees. Thus, this court adheres to the initial determination made on plaintiffs account stated claim for legal fees in its decision dated August 27, 2018 on plaintiffs motion for summary judgment. “

Experts Needed Here!

Posted in Legal Malpractice Cases

Plaintiffs rarely obtain partial summary judgment other than in strict liability or labor law cases.  They almost never win in a legal malpractice setting, and Eurotech Constr. Corp. v Fischetti & Pesce, LLP  2019 NY Slip Op 01366  Decided on February 26, 2019  Appellate Division, First Department is no exception.  The Court was unable to determine, as a matter of law whether there was an obligation to advise the clients to trigger their excess insurance, and asked for expert guidance.

“Plaintiff failed to establish that there are no issues of fact as to its legal malpractice claim. The claim is that defendant failed to timely communicate with plaintiff about information obtained from testimony or bills of particular in the underlying personal injury action, and that, as a result, plaintiff was unable to timely notify its excess insurance provider that its primary insurance coverage might be exhausted. Still unresolved are the type and timing of any communication required, which depends on the agreed-upon scope of defendant’s representation of plaintiff, and the point at which defendant, in the exercise of the requisite professional skill and knowledge, should have realized that plaintiff’s primary insurance coverage could be exhausted (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 41-42 [2d Dept 2006], cited in Eurotech Constr. Corp., 155 AD3d at 437). Expert testimony would have been helpful because the issues here involve professional standards beyond the ordinary experience of non-lawyers (see Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010], lv denied 15 NY3d 707 [2010]).”

A Dictionary of Causes of Action Regarding Attorneys

Posted in Legal Malpractice Cases

Traditionally, plaintiffs plead a triumvirate of claims against attorneys consisting of legal malpractice, breach of contract and breach of fiduciary duty.  Additional claims are rarely seen.  In Ramirez v Donado Law Firm, P.C.  2019 NY Slip Op 01244  Decided on February 20, 2019
the Appellate Division, Second Department goes through a long list of claims and gives the elements.  The entire decision is valuable.

“Real Property Law § 265-b governs the conduct of distressed property consultants. “Distressed property consultant” or “consultant” is defined as “an individual or a corporation, partnership, limited liability company or other business entity that, directly or indirectly, solicits or undertakes employment to provide consulting services to a homeowner for compensation or promise of compensation with respect to a distressed home loan or a potential loss of the home for nonpayment of taxes” (Real Property Law § 265-b[1][e]). A consultant does not include, inter alia, “an attorney admitted to practice in the state of New York when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice” (Real Property Law § 265-b(1)(e)[i]). Here, contrary to the defendants’ contention, the plaintiffs adequately alleged facts from which it could be inferred that the defendants did not provide consulting services to the plaintiffs in the course of Donado Law’s regular legal practice (see De Guaman v American Hope Group, 163 AD3d 915). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Real Property Law § 265-b insofar as asserted against them.

General Business Law § 349(a) prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” A cause of action to recover damages for a violation of General Business Law § 349 must “identify consumer-oriented misconduct which is deceptive and materially misleading to a reasonable consumer, and which causes actual damages” (Wilner v Allstate Ins. Co., 71 AD3d 155, 161-162; see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25). Private contract disputes, unique to the parties, do not fall within the ambit of General Business Law § 349 (see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25; De Guaman v American Hope Group, 163 AD3d at 917). Here, contrary to the defendants’ contention, “in contrast to a private contract dispute, the practices alleged by the plaintiffs were not unique to these parties and involved an extensive marketing scheme that had a broader impact on consumers at large” (De Guaman v American Hope Group, 163 AD3d at 917 [citations and internal quotation marks omitted]; see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 344; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of General Business Law § 349 insofar as asserted against them.

“Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]). However, the requirements of CPLR 3016(b) ” may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct'” (Sargiss v Magarelli, 12 NY3d 527, 531, quoting Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492). Here, contrary to the defendants’ contention, the complaint pleaded causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation with sufficient particularity (see CPLR 3016; Sargiss v Magarelli, 12 NY3d at 531; Pludeman v Northern Leasing Sys., Inc., 10 NY3d at 492; De Guaman v American Hope Group, 163 AD3d at 917). Moreover, contrary to the defendants’ contention, the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation were not duplicative of the breach of contract cause of action (see De Guaman v American Hope Group, 163 AD3d at 917; see also Neckles Bldrs., Inc. v Turner, 117 AD3d 923, 925). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation insofar as asserted against them.

“To recover damages for breach of contract, plaintiffs must demonstrate the existence of a contract, [their] performance pursuant to that contract, the defendants’ breach of their obligations pursuant to the contract, and damages resulting from that breach'” (De Guaman v American Hope Group, 163 AD3d at 917, quoting Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127). Here, contrary to the defendants’ contention, the plaintiffs sufficiently pleaded a cause of action alleging breach of contract (see De Guaman v American Hope [*3]Group, 163 AD3d at 917). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in breach of contract insofar as asserted against them.

To recover damages for legal malpractice, a plaintiff must establish “that the attorney 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” (Dombrowski v Bulson, 19 NY3d 347, 350 [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Dempster v Liotti, 86 AD3d 169, 176). “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; see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d 683, 684). Here, contrary to the defendants’ contention, the complaint sufficiently pleaded a cause of action to recover damages for legal malpractice (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d at 830; Hershco v Gordon & Gordon, 155 AD3d 1007, 1009). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in legal malpractice insofar as asserted against them.”

No Standing, No Malpractice Case

Posted in Legal Malpractice Cases

There are four elements of legal malpractice.  “Standing” is not really one of them, but continually lurks in the background.  Your opponent’s lawyer departs from good practice?  Too bad.  You lack privity and you lack standing.  Your company retains the lawyer and you, individually want to sue?  Too bad.  You lack privity and you lack standing.

Kaminski v Sirera  2019 NY Slip Op 01067  Decided on February 13, 2019  Appellate Division, Second Department is a prime example.

“In or about 2009 or 2010, the plaintiff acquired membership units in nonparty Melange Med Spa, LLC (hereinafter the LLC), from a prior member of the LLC. In 2016, the plaintiff commenced this action individually and derivatively on behalf of the LLC against, among others, the defendant Christina Sirera, a managing member of the LLC, seeking, inter alia, declaratory and injunctive relief, an accounting, and damages for waste and breach of fiduciary duty. The plaintiff asserted causes of action against the defendants Allyson Avila and Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (hereinafter Wilson Elser), attorneys for the LLC, alleging legal malpractice, breach of contract, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty.”

“”[M]embers of a limited liability company (LLC) may bring derivative suits on the LLC’s behalf” (Tzolis v Wolff, 10 NY3d 100, 102; see Jacobs v Cartalemi, 156 AD3d 605Stack v Midwood Chayim Aruchim Dialysis Assoc., Inc., 54 AD3d 935East Quogue Jet, LLC v East Quogue Members, LLC, 50 AD3d 1089). A “[m]ember” is a person who has been admitted as a member of a limited liability company in accordance with the terms and provisions of the Limited Liability Company Law and the limited liability company’s operating agreement, and who has a membership interest in the limited liability company with the rights, obligations, preferences, and limitations specified under the Limited Liability Company Law and the operating agreement (Limited Liability Company Law § 102[q]). A “[m]embership interest” means “a member’s aggregate rights in a limited liability company, including, without limitation: (i) the member’s right to a share of the profits and losses of the limited liability company; (ii) the member’s right to receive distributions from the limited liability company; and (iii) the member’s right to vote and participate in the management of the limited liability company” (Limited Liability Company Law § 102[r]).

Here, the plaintiff does not dispute that she failed to obtain the consent of the nonselling members to be admitted as a member of the LLC when she acquired her membership interest. Paragraph 8 of the LLC’s operating agreement provides that “[n]ew members may be admitted only upon the unanimous consent of the Members and upon compliance with the provisions of this agreement,” and paragraph 32(e) of the operating agreement provides that “[a] non-member purchaser of a member’s interest cannot exercise any rights of a Member unless, by unanimous vote, the non-selling Members consent to him becoming a Member” (see Limited Liability Company Law § 602). Therefore, contrary to the Supreme Court’s determination, the plaintiff, as a nonmember purchaser who had not been admitted as a member of the LLC, lacks standing to pursue derivative causes of action on behalf of the LLC (see Tzolis v Wolff, 10 NY3d at 102; MFB Realty LLC v Eichner, 161 AD3d 661Cordts-Auth v Crunk, LLC, 815 F Supp 2d 778 [SD NY], affd 479 Fed Appx 375 [2d Cir]).”

In A Medically Induced Coma, But Still Competent to Sign Documents

Posted in Legal Malpractice Cases

Granted, reading a decision does not always illuminate the facts behind the case, but Gilbo v Horowitz  2019 NY Slip Op 30320(U)  February 9, 2019  Supreme Court, New York County
Docket Number: 158727/2017 Judge: Margaret A. Chan is very startling.  It’s a legal malpractice case along with a declaratory judgment that he was incompetent to sign a retainer or a power of attorney.  Why was he incompetent?  Was he incompetent?  Read on.

“On July 21, 2012, plaintiff attended a wedding reception in Brooklyn where he had six vodka and soda drinks in a span of two and one-half hours (NYSCEF # 7 – Hearing tr., p 17). After the reception, he left to meet friends at a nearby lounge. As he walked across Flatbush Avenue, he was struck by a motor vehicle driven by non-party Crandall Glasgow. Plaintiff sustained devastating injuries from this accident and spent nine weeks in a medically induced coma and seven months
recuperating in the hospital (NYSCEF # 1- Verified Complaint at 1l1l 12-13).

On July 27, 2012, plaintiffs mother enlisted Mark Bodner, Esq. to represent plaintiff (NYSCEF #115 – Bodner aff at ii 4). On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement (retainer) with defendant Mark L. Bodner, P.C. and simultaneously executed a power of attorney (POA) authorizing his mother to pursue a personal injury claim related to the accident on
his behalf (Complaint at 1l 18). On September 21, 2012, Bodner settled plaintiffs personal injury case with Glasgow’s insurer for the purported policy limit of $25,000.00 (id at 1l 20; Bodner aff at ii 8). Bodner avers that plaintiffs mother authorized Bodner to settle the case against the driver, Glasgow (NYSCEF # 115 -Bodner aff at ilil 8, 11). Bodner attempted to deliver the net proceeds of the settlement to Gilbo, but Gilbo rejected it (id at ,-r 28).”

“Plaintiff seeks a declaratory judgment nullifying the retainer and POA appointing his mother as attorney-in ·fact so to restore his case against the driver to the status quo. As plaintiffs mother is not a defendant here, this Decision and Order does not speak to the POA.

Bodner argues that plaintiffs basis for a rescission of the retainer is his incompetency due to his dire medical condition at the time he signed the retainer.  Bodner contends that plaintiffs conclusory allegations tending to show Bodner’s incapacity are insufficient to state a claim for rescission.
“A party’s competence to enter into a contract is presumed, and the party asserting incapacity bears the burden of proof’ (Er-Loom Realty, LLC v Prelosh Realty, LLC, 77 AD3d 546, 547 [lst Dept 2010] citing Feiden v Feiden, 151 AD2d 889, 890 [3d Dept 1989]). Plaintiff has to show by clear and convincing evidence that his mind was “so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction” (Sears v First Pioneer
Farm Credit, ACA, 46 AD3d 1282, 1284-1285 [3d Dept 2007] quoting Aldrich v Bailey, 132 NY 85, 89 [1892]). Plaintiff has to show further “that such incompetency/incapacity existed when he executed the … documents …. ” (Sears, 132 NY at 89 citing Feiden, 151 AD2d at 890).

Plaintiff avers that he “particularly pled for a Declaratory Judgment nullifying the power of attorney (“POA”), that gave his mother the power as agent, and the Bodner P.C. Retainer Agreement he signed while in a heavily medicated medically induced coma (“MIC”), both of which Plaintiff signed on September 14, 2012, only weeks after [he] was gravely injured” (NYSCEF #130 – Gilbo Aff at if 8).
Plaintiff does not deny signing the documents, which were notarized the same day. Plaintiff questions whether the notary was present when plaintiff signed since the notary, and Bodner, should have realized that plaintiff was not of sound mind (id. at if 16). Bodner provides only his allegations for the knowledge he imputes to the notary and Bodner.

Plaintiff asks this court to take judicial notice of his medical condition as alleged in his complaint because those allegations were undisputed (Gilbo Aff at if 12). This court declines plaintiffs request. But, this court takes plaintiffs allegations as true as this court must for the purposes of this motion to dismiss.

Plaintiff, who suffered a traumatic brain injury, among other injuries, was in a medically induced coma for nine weeks after being hospitalized on July 21 (Gilbo Aff at if 10; Complaint at if 12). Nine weeks from July 21 is September 22. Plaintiff signed the documents on September 14, at least one week prior to coming out of the nine-week coma. Plaintiff does not deny signing the documents but claims that “[a]t no time on September 14, 2012, was [he] of sound mind to reasonably understand
the nature and significance of the POA and the Bodner P.C. Retainer Agreement.” (Gilbo Aff at if 15). In other words, plaintiffs contention is that he signed the documents while he was in a medically induced coma, and that is the reason he lacked the capacity to understand what he signed.
Plaintiffs allegations of his medical condition are significant and serious; they are also conclusory. This court cannot jump to the conclusion plaintiff proffers for his cause of action to rescind the retainer. Bodner’s motion to dismiss plaintiffs fourth cause of action for a declaratory judgment nullifying the retainer is granted. “

20 Defaults? Judiciary Law violation? Apparently None

Posted in Legal Malpractice Cases

When plaintiff pro-se’s legal expert says there were 20 defaults, was this a flight of fancy or a typo in which there were two defaults?  Either way, the case is headed for dismissal rather than summary judgment.

 Ziemianowicz v Janowski  2019 NY Slip Op 30326(U)  February 6, 2019 Supreme Court, Kings County Docket Number: 521427/2016  Judge: Loren Baily-Schiffman reads as if defendant will now move for summary judgment on the argument that plaintiff owed the real estate broker a commission, and would never have won the underlying case.

Of special interest is the Court’s discussion of Judiciary Law § 487 and its “only acceptable standard”.  “The law is clearly established that the only acceptable liability standard recognized to
support a claim that an attorney violated § 487 of the Judiciary Law is an intent to deceive.
Amalfitano v Rosenberg, 12 NY3d 8, 14 (2009}. Aristakesian v Ballon Stoll Bader & Nadler,
P.C., 165A.D.3d1023, 1025 (2d Dept 2018). Moreover, “[a]llegations regarding an act of
deceit or intent to deceive must be stated with particularity.” Facebook, Inc. v DLA Piper LLP
[US], 134 AD3d 610, 615 {2d Dept 2015). The allegations supporting Plaintiff’s claim that
Defendant violated Judiciary Law§ 487 do not set forth any facts from which an intent to
deceive could be inferred. Aristakesian v Ballon Stoll Bader & Nadler, P.C., supra at 1025. ”

 

Too Late for This Legal Malpractice Case

Posted in Legal Malpractice Cases

Sclafani v Kahn  2019 NY Slip Op 01115  Decided on February 13, 2019 is an example of how the  Appellate Division, Second Department decides statute of limitation / continuous representation cases.  This legal malpractice claim arises from a loan closing where security for the loan was not handled.

“In January 2015, the plaintiffs commenced this action, inter alia, to recover damages for legal malpractice allegedly committed by the defendants at the closing of a loan on June 24, 2009. The defendants represented the plaintiffs at the closing, and the plaintiffs alleged that, as part of that transaction, the defendants were supposed to, but did not, negotiate security from the borrower for the loan by obtaining a mortgage against certain real property located in Orangeburg.

The defendants Paul B. Kahn and Kahn & Licker, LLP, moved, and the defendant Diversified Land Services, Ltd., separately moved, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. The defendants argued, inter alia, that the complaint was barred by the applicable statute of limitations. In opposition, the plaintiffs argued that the continuous representation doctrine applied to toll the applicable statute of limitations. The Supreme Court granted the defendants’ respective motions, and the plaintiffs appeal.

” On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period'” (Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1085-1086, quoting Tsafatinos v Law Off. of Sanford F. Young, P.C., 121 AD3d 969, 969; see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 734-735; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796). An action to recover damages for legal malpractice must be commenced within three years of accrual, “regardless of whether the underlying theory is based in contract or tort” (CPLR 214[6]; see McCoy v Feinman, 99 NY2d 295, 301; Chase Scientific Research v NIA Group, 96 NY2d 20; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735; Farage v Ehrenberg, 124 AD3d 159, 163; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796). “A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735; see McCoy v Feinman, 99 NY2d at 301; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086; Farage v Ehrenberg, 124 AD3d at 164; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796).

However, “[t]he continuous representation doctrine serves to toll the statute of limitations and render timely an otherwise time-barred cause of action for legal malpractice, but only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim'” (King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541, 543, quoting McCoy v Feinman, 99 NY2d at 306; see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735). For the doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney'” (Farage v Ehrenberg, 124 AD3d at 164, quoting Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038; see Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086).

Here, the defendants established that the plaintiffs’ legal malpractice cause of action was time-barred, as it accrued on June 24, 2009, at the conclusion of the closing (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). In opposition to the defendants’ respective motions, the plaintiffs failed to raise a question of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. Indeed, the communications between the parties upon which the plaintiffs rely, which occurred after the statute of limitations had run, demonstrated that the attorney-client relationship in this matter had ceased at the conclusion of the closing, and was not continued.”

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