WSA Group, PE-PC v DKI Eng’g & Consulting USA PC 2019 NY Slip Op 09339
Decided on December 26, 2019 Appellate Division, Third Department raises the interesting difference between a direct claim for professional negligence, common-law indemnity and contractual indemnity.

“In March 2012, plaintiff entered into a subcontract with defendant, a professional engineering firm, by which defendant agreed to inspect certain state bridges pursuant to plaintiff’s prime contract with the Department of Transportation (hereinafter DOT). The subcontract provided that the time period for defendant’s performance was January 1, 2012 through May 31, 2014, and included a provision requiring defendant to indemnify plaintiff for certain costs and expenditures arising from defendant’s errors, omissions or negligence. In March 2017, defendant’s employee, Akram Ahmad, was convicted of falsifying a 2013 inspection report for one of the bridges covered by the subcontract. As a result, plaintiff incurred costs related to cooperating in the investigation, providing information and appearing and testifying at administrative and judicial hearings, and was required to reimburse DOT for sums paid to defendant for Ahmad’s work. Defendant declined plaintiff’s request for indemnification of these costs.

In May 2018, plaintiff commenced this action against defendant stating causes of action in negligent supervision and breach of contract, and seeking to recover its expenditures arising from Ahmad’s misconduct. Defendant moved to dismiss the complaint as time-barred under CPLR 214 (6). Supreme Court granted the motion in part by dismissing the negligent supervision claim and the breach of contract claim to the extent that it was based upon defendant’s failure to properly inspect the bridge. The court partially denied the motion to dismiss the breach of contract claim to the extent that it was based upon defendant’s failure to comply with its contractual obligation to indemnify plaintiff for its reimbursement to DOT. To the extent that plaintiff sought indemnification for its counsel fees and costs related to investigations and judicial and administrative proceedings, the breach of contract claim was dismissed, as the court found that these were direct claims subject to the three-year limitations period of CPLR 214 (6), and were therefore time-barred. These cross appeals ensued.”

“Turning to plaintiff’s contractual indemnification claim, the subcontract required defendant to “indemnify and save harmless and defend [DOT and plaintiff] . . . from and against any claim, demand or cause of action of every name or nature arising out of the error, omission or negligent act of [defendant]” or its employees. Plaintiff alleged that defendant breached this provision by refusing to reimburse and indemnify plaintiff for the costs it incurred as a result of Ahmad’s misconduct. With regard to plaintiff’s claim for the reimbursement it paid to DOT for Ahmad’s work, Supreme Court determined that defendant’s voluntary contractual agreement to indemnify plaintiff was not an “ordinary professional obligation” of an engineer (Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d at 542) and that this claim was thus governed by a six-year limitations period that accrued upon that payment and was not time-barred (see CPLR 213 [2]; McDermott v City of New York, 50 NY2d 211, 217-218 [1980]). We agree. The cause of action for indemnification is not “a disguised professional malpractice claim subject to a three-year statute of limitations, as it does not allege that [defendant’s] professional services were negligently performed, but instead alleges a breach of the [subcontract]” consisting of defendant’s separate failure to comply with its indemnification obligation (State of N.Y. Workers’ Compensation Bd. v Madden, 119 AD3d 1022, 1027 [2014]; see New York State Workers’ Compensation Bd. v SGRisk, LLC, 116 AD3d at 1151). Contrary to defendant’s argument, this conclusion is not altered by the fact that the complaint alleges that plaintiff incurred these costs “as a result of its negligent supervision of . . . Ahmad.” “[T]he indemnity claim is a separate substantive cause of action, independent of the underlying wrong” (McDermott v City of New York, 50 NY2d at 218). As such, the statute of limitations principles that apply to indemnification claims are controlling, “whatever the underlying breach of duty for which indemnification is sought” (id.see Varo, Inc. v Alvis PLC, 261 AD2d 262, 264-265 [1999], lv denied 95 NY2d 767 [2000]).

We reject defendant’s argument that it cannot be required to indemnify plaintiff for its reimbursement to DOT for Ahmad’s work because DOT is also an indemnitee and, thus, is not a third party outside the subcontract. It is a familiar principle that a cause of action for common-law indemnification must be based upon a defendant’s breach of duty to a third party (see e.g. State of N.Y. Workers’ Compensation Bd. v Madden, 119 AD3d at 1024; Germantown Cent. School Dist. v Clark, Clark, Millis & Gilson, 294 AD2d 93, 99 [2002], affd 100 NY2d 202 [2003]). However, the instant matter does not involve common-law indemnification, in which “a contract to reimburse or indemnify is implied by law” (McDermott v City of New York, 50 NY2d at 217 [internal quotation marks and citation omitted]). Instead, the scope of defendant’s obligation is governed by the parties’ intent as revealed by the plain language of the indemnification provision that they agreed upon (see Matter of 2-4 Kieffer Lane LLC v County of Ulster, 172 AD3d 1597, 1601 [2019]; Crossroads ABL LLC v Canaras Capital Mgt., LLC, 105 AD3d 645, 645 [2013]). Nothing in the provision’s broad language, which requires defendant to indemnify plaintiff “against any claim, demand or cause of action of every name or nature,” reveals that the parties intended to exclude claims such as this from its coverage or to limit its scope to breaches of duty to third parties. Instead, the parties “chose to use highly inclusive language in their indemnification provision, which they chose not to limit by listing the types of proceedings for which indemnification would be required” (Crossroads ABL LLC v Canaras Capital Mgt., LLC, 105 AD3d at 646; accord HealthNow N.Y., Inc. v David Home Bldrs., Inc., 176 AD3d 1602, 1605 [2019]).

For the same reasons, we disagree with Supreme Court’s finding that the indemnification provision does not cover plaintiff’s counsel fees and other expenses incurred in the course of the investigation and subsequent proceedings arising from Ahmad’s misconduct. Like the claim for reimbursement of plaintiff’s payment to DOT, this claim is not subject to CPLR 214 (6), as it does not allege negligence in performing professional obligations and thus is not “essentially a malpractice claim” (Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d at 542). Further, as previously discussed, the fact that plaintiff’s expenditures did not arise from a breach of duty to a third party does not exclude them from the scope of the parties’ broadly-phrased indemnification agreement. Nothing in the provision expressly excludes counsel fees or other direct expenditures on plaintiff’s part. On the contrary, the provision requires defendant to “indemnify and save harmless and defend” plaintiff (emphasis added), revealing that the parties contemplated legal costs arising from defendant’s errors, omissions or negligence as part of the provision’s scope.[FN1] Accordingly, this aspect of plaintiff’s indemnification claim should not have been dismissed (see Matter of 2-4 Kieffer Lane LLC v County of Ulster, 172 AD3d at 1601; Crossroads ABL LLC v Canaras Capital Mgt., LLC, 105 AD3d at 646).”

People entering into a commercial transaction, buying into a business, for example, face a large number of potential investment problems.  These range from misunderstanding complex UCC documents, not obtaining proper shareholder rights, running afoul of the bulk transfer tax problem.  They reasonably retain attorneys to navigate these waters.  What happens when a law firm takes on the work with a severely limited retainer and problems thereafter arise?

Ferenets v Kenworthy  2019 NY Slip Op 33751(U) November 22, 2019
Supreme Court, Queens County Docket Number: 712299/2019
Judge: Cheree A. Buggs is an example of how the client loses in these situations.

“This action arises out of an attorney-client relationship that existed between Plaintiffs and  Defendants. Plaintifflryna Ferenets (individually referred to as “lryna”) alleges that as a licensed real estate broker she visited Roosevelt Island on numerous occasions because her brokerage office is located at 552 Main Street. She observed an already existing bubble tea business located at 559 Main Street and visited the shop on September 14, 2018. During Iryna’s visit she met with Guanghao Zhang (“Zhang”), who represented that he was the owner and operator of the business Sparkling Bubble Tea Inc. (hereinafter referred to as  Business”), and “briefly observed the operation of the business”. lryna alleges that the co-plaintiff her husband Alexander Ferenets expressed interest in becoming a manager of a bubble tea business. Subsequently, Plaintiffs met with Zhang and informed him of their interest. Zhang informed the Plaintiffs that he was looking for a partner and the Business was worth approximately $100,000. Plaintiffs and Zhang agreed that Plaintiffs would purchase 45 out of the 100 shares of the business for $45,000. On September 18, 2018, Plaintiffs visited the  Business and Zhang showed them a Shareholders Agreement signed the prior day illustrating that
Zhang held a 100% shareholder interest in the company and an individual named Shiwei Pan (“Shiwei”) held a 0 % interest.

Iryna represents that due to a referral and subsequent search of Defendants’ website the Plaintiffs decided to contact the Defendants seeking legal representation related to the purchase of the stock. On September 20, 2018, Plaintiffs contacted Defendants via phone and email. Iryna alleges on September 20, 2018 she forwarded the store lease including the rider, the Shareholders Agreement, the filing receipt of the business and the employer identification number for Defendants’ review. Plaintiffs entered into a retainer agreement with the Defendants on October 2, 2018 (hereinafter referred to as “Retainer Agreement”).”

“The relevant portions of the Retainer Agreement signed between the parties reads as follows:
1. Scope of Representation
This Jaw firm (“The Law Firm”) has been retained by both of you
(collectively “You”) to prepare the Shareholders Agreement for Sparkling Bubble Tea Inc. (the “Company”) that has already been formed with the New York State Department of State Division of Corporations. The Law Firm will be representing Your interests, not the interests of the Company or the other shareholder(s).
All of our services in this matter will end upon the preparation an execution of the Shareholders Agreement. Not included within the scope of our representation is tax or financial advice, any other transactional document, or the commencement of any litigation, which would be subject to a separate Retainer Agreement.”

“Plaintiffs allege Defendants failed to conduct and order a corporate lien search of the Business to ascertain corporate liens, judgments, obligations and liabilities and failed to determine whether the Business had any rent arrears and whether the lease was in full force and affect. Based upon the language in the Retainer Agreement there is no indication that Defendants had a duty to perform the above conduct. Nevertheless, Plaintiffs failed to establish causation. Iryna within her affidavit confirms that the Defendants agreed to purchase 45 shares of
the Business prior to retaining the Defendants. The Defendants paid $25,000 out of the agreed upon $45,000 purchase price for the shares prior to retaining the Defendants. Therefore, in light of the already existing agreement to purchase, Plaintiffs have failed to plead facts that indicate that Defendants’ lack of conduct caused the damages they allegedly sustained.
Finally, Plaintiffs allege Defendants failed to indicate who the Defendants represent in the Shareholders Agreement and failed to obtain information regarding Zhang’s citizenship. Plaintiffs have failed to establish a correlation between the above conduct and the damages they sustained. Nonetheless, within the Retainer Agreement Defendants state “[t]he Law Firm will be representing Your interests, not the interests of the Company or the other shareholder(s).” Plaintiffs
have not plead facts indicating that the either themselves or the other shareholders were unsure or unclear about who the Defendants represented. Furthermore, Plaintiffs have not plead facts that indicate how, if in anyway Zhang’s immigration status in this country affected the damages they allegedly sustained. Therefore it is,

ORDERED, that the Defendants’ motion is granted in its entirety. The Verified Complaint is dismissed.”

Pepper v Jennings  2019 NY Slip Op 33755(U) December 27, 2019 Supreme Court, New York County Docket Number: 101392/2018 Judge: Carol R. Edmead holds that not all representation by an attorney is “continuous representation.’  In this case, Meeting with the judgment clerk on behalf of a prior client is insufficient to demonstrate continuing representation.

“In this legal malpractice action, Defendant Walter Jennings moves for dismissal of the complaint against him pursuant to the applicable statute oflimitations under CPLR 3211 (a)(5). Plaintiff opposes the motion and cross-moves for an order pursuant to CPLR 3013 dismissing
Defendant’s motion.”

“Plaintiffs final argument that the statute of limitations defense is factually inapplicable is also without merit. Plaintiff argues that Defendant’s representation of Plaintiff occurred up through September 22, 2015, meaning that it would have been just within the three-year window.

“It is well settled that a claim for legal malpractice accrues as of the date of the malpractice complained of or, if the attorney-client relationship has continued, as of the date when that relationship terminates” (Johnston v Raskin, 193 AD2d 786 [2d Dept 1993], citing
Glamm v. Allen, 57 NY2d 87 [1982]). Here, Defendant’s representation of Plaintiff terminated in September 2014 when Plaintiff requested his file bet transferred to new counsel (NYSCEF doc No. 17). The entire matter that Defendant represented Plaintiff in connection with was settled by Plaintiffs new counsel in February 2015 (NYSCEF doc No. 19). While Defendant did submit a bill to Plaintiff with an entry dated September 22, 2015, that entry is for Defendant meeting with the judgment clerk on the status of the Civil Court case (NYSCEF doc No. 30, ~ 21 ). That entry
thus cannot be a cause of action to Plaintiffs malpractice claim as it is in no way related to Defendant’s representation of Plaintiff.”

Legal malpractice cases are subject to all the rules. Sometimes they may seem even more subject to the rules than are other case, but in Economic Alchemy LLC v Byrne Poh LLP   2019 NY Slip Op 33739(U) December 20, 2019 Supreme Court, New York County Docket Number: 653632/2015
Judge: Lucy Billings the issue of note is how the question of successor attorney immunity might be resolved on discovery issues.

“In this action for defendants’ legal malpractice in prosecuting patent applications for plaintiff, defendants move for penalties due to its noncompliance with the order dated October 11, 2019, and the stipulated Status Conference Order dated December 5, 2019, or to compel its production of documents in compliance with those orders.”

“Plaintiff admits that it has not produced the correspondence by its patent attorneys who preceded and succeeded defendants that they requested and the court ordered. By December 23, 2019, plaintiff shall .produce any documents not privileged or protected under C.P.L.R. § 310`1(c) or (d) (2) or shall specify an applicable privilege or protection in a log that includes any withheld document’s type, subject, and date and other information necessary to identify the document, including the persons to whom it was sent or from whom it was received. C.P.L.R. §§
3120(1) (i), 3122(a) (1) and (b); Stephen v. State of New York, 117 A.D.3d 820, 820-21 (2d Dep’t 2014); Ural v. Encompass Ins. Co. of Am., · 97 A. D. 3d 562, 566-67 (2d Dep’ t 2012) . These documents are material and necessary to defendants’ defenses that plaintiff’s predecessor attorneys caused the damages plaintiff claims. in this ‘ action and that its successor attorneys had and continue to have ample opportunities to mitigate its claimed damages. Plaintiff’s noncompliance with repeated deadlines to produce these documents or a privilege log warrants a further penalty if
plaintiff fails to complete this production by December 23, 2019. To the extent that plaintiff fails to produce.by then any documents or privilege log pertaining to correspondence by plaintiff’s patent attorneys ~ho preceded defendants, the issue of whether any predecessor attorneys caused the damages plaintiff claims in. this action shall be resolved in defendants’ favor. To the extent that plaintiff fails to produce by December 23. 2019, any documents or privilege log pertaining to correspondence by plaintiff’s patent attorneys who succeeded defendants, the issue of whether any successor attorneys could have mitigated the damages plaintiff claims in this action shall be resolved in
defendants’ favor. C.P.L.R. § 3126(1); Crooke v. Bonofacio, 147 A.D.3d 510, 510-11 (1st. Dep’t 2017); Baldwin v. Gerard Ave;, LLC, 58 A.D.3d 484, 484-85 (1st Dep’t 2009); Horizon Inc. v. Wolkowicki, 55 A.D.3d 337, 338 1st Dep’t 2008); Longo v. Armor El. Co, 307 A.D.2d 848, 849 (1st Dep’t 2003). See Weissman v. 20 E. 9th St. Corp., 48 A.D.3d 242, 243 (1st Dep~t 2008); Schilling v. Quiros~ 23 A.D.3d 243, 244 (1st Dep’t 2005). “

A word search for “professional malpractice” brought up this story.  While not a legal malpractice report, this disciplinary proceeding explains why some legal malpractice cases are brought. Matter of Bloom 2019 NY Slip Op 09000 Decided on December 18, 2019
Appellate Division, Second Department Per Curiam is a curious mix of inappropriate conduct and a sense that aggression in litigation might solve all woes.

“Charge one alleges that the respondent engaged in conduct that adversely reflects on [*2]his fitness as a lawyer, in violation of rule 8.4(h) of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows: On or about July 25, 2016, the respondent was present in the County Court, Nassau County, in connection with his representation of a criminal defendant in a pending proceeding before the Honorable Meryl J. Berkowitz. Two female Nassau County Assistant District Attorneys (hereinafter together the ADAs) were prosecuting the case on behalf of the People. During a recess prior to opening statements, the ADAs were standing in a public area of the courthourse outside the courtroom and were engaged in conversation with another attorney, a former Assistant District Attorney, Mary Murray. While the ADAs and Murray were speaking, the respondent approached them and initiated a conversation with Murray. In response to Murray’s inquiry regarding what the respondent was doing in court that day, the respondent stated, in sum and substance, “nothing, just doing a trial with these two sluts,” indicating the ADAs. One of the ADAs immediately admonished the respondent for making this statement, to which the respondent stated “stop being so sensitive, this is how I speak to ADAs.” Thereafter, the parties returned to the courtroom, where the ADA who admonished the respondent gave her opening statement.

Charge two alleged that the respondent neglected a legal matter entrusted to him, in violation of rule 1.3(b) of the Rules of Professional Conduct (22 NYCRR 1200.0), as follows: Beginning in or about 2009, the respondent represented Louis Wenger (hereinafter Wenger) in two related judicial dissolution proceedings commenced by Wenger’s son, David Wenger (hereinafter David), entitled David Wenger v L.A. Wenger Contracting, Co. and Louis Wenger, commenced in the Supreme Court, Suffolk County, under Index No. 31701-2008 (hereinafter Action No. 1), and David Wenger v Railroad Realty Group, Inc., ECS Realty Inc., GDS Realty Group, Inc., Woodglen Realty LLC, and Louis Wenger, commenced in the Supreme Court, Suffolk County, under Index No. 2149-2009 (hereinafter Action No. 2), respectively. David alleged that he was a 31% shareholder of five closely held corporations and that Wenger, the 69% shareholder of the corporations, was guilty of oppressive actions toward David and had looted, wasted, or diverted corporate assets for noncorporate purposes. After a nonjury trial before the Supreme Court, Suffolk County (Emily Pines, J.), the Supreme Court found that David was a 31% shareholder of each of the corporations and that Wenger had engaged in “oppressive conduct” toward him. In lieu of dissolution, the court appointed Robert P. Lynn, as temporary receiver, to, among other things, determine the net values of the real properties at issue and select properties worth 31% of the total assets to be transferred to David. The court’s decision was reduced to a judgment dated October 24, 2011.”

Read the balance of the decision for further acts leading to a final determinant of suspension.

Online reviews have taken over the world of attorney retention, and for all but the largest firms, online reviews can be life or death.  Cedeno v Pacelli
2019 NY Slip Op 32631(U) September 4, 2019 Supreme Court, New York County Docket Number: 452016/2018 Judge: Margaret A. Chan is a vivid example of a hideous situation and the aftermath.

“The Pacellis were going through a divorce in 2016. Atesta P retained Cedeno and his firm to represent her in the divorce proceedings. In the course of Cedeno’srepresentation of Atesta P, the professional relationship allegedly strayed into a personal one. In September 2016, Atesta P and Anthony P commenced the related Pacelli action. The Pacellis allege that Cedeno developed a sexual relationship with Atesta while Cedeno and his law firm was counsel to Atesta P and that Cedeno
sexually assaulted Atesta P (NYSCEF # 97). The Pacellis asserted claims against Cedeno and his firm for: breach of fiduciary duty; violation of judiciary law§ 487; sexual battery and assault; intentional infliction of emotional distress; and loss of consortium. In February 2017, Cedeno and his firm filed an answer and a counterclaim for defamation alleging, among other things, that Atesta P falsely stated that Cedeno raped her (NYSCEF # 98, ~~225-230).

In July 2018, Cedeno and his firm initiated the instant Cedeno action against the Pacellis alleging that “the Pacellis authored, created, and published or caused John Does to author, create, or publish over 120 false and defamatory reviews and websites concerning Plaintiffs” (NYSCEF # 132, ~26). Plaintiffs assert claims for: libel; trade libel; aiding and abetting defamation; intentional infliction of emotional  distress (IIED); aiding and abetting IIED; intentional interference with prospective business relations; and vicarious liability. ”

“At the outset, plaintiffs claims for IIED based on the factual allegations
contained in Schedule 1 of the complaint are dismissed, as they are factually duplicative of plaintiffs’ defamation claim (see Akpinar v Moran, 83 AD3d 458, 459[1st Dept 2011]). In any event, the alleged defamatory statements are not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency” (Howell v New York Post Co., 81NY2d115, 122 [1993]).”

“Plaintiffs also allege that defendants took harassing actions against
plaintiffs, including posting of. Cedeno’s cell-phone number on a Craigslist ad on Christmas day; reviews specifically mentioning Cedeno’s daughter; and the letter to Cedeno’s wife (Complaint at if91). Those allegations also fail to sufficiently allege conduct so extreme and atrocious as to support a claim for IIED (Howell, 81 NY2d at 122).

Since plaintiffs’ claim for IIED is dismissed, it follows that their claim for
aiding and abetting IIED must also be dismissed. ”

For the full flavor of the online situation, read the full decision.

 

 

 

Here is a succinct explanation of how to calculate the statute of limitations for either a contract or a negligence claim against an architect by the First Department in City of New York v George G. Sharp, Inc2019 NY Slip Op 08809 Decided on December 10, 2019

“Defendant failed to meet its prima facie burden of establishing that plaintiff City of New York’s time in which to sue has expired (see Benn v Benn, 82 AD3d 548 [1st Dept 2011]). “A cause of action to recover damages against an architect for professional malpractice is governed by a three-year statute of limitations, which accrues upon termination of the professional relationship — that is, when it completes its performance of significant (i.e. non-ministerial) duties under the parties’ contract” (New York City Sch. Constr. Auth. v Ennead Architects LLP, 148 AD3d 618, 618 [1st Dept 2017] [internal quotation marks omitted]; CPLR 214[6]). Here, the City has sufficiently alleged that defendant completed its performance under the contract, and the parties’ professional relationship terminated, on or about February 2, 2010, when defendant allegedly delivered its completed as-built designs. Because the City commenced this suit a year later, on or about January 28, 2011, its malpractice claim was timely (CPLR 214[6]).

The City’s allegations, that defendant departed from accepted practice and failed to perform services in accordance with professional standards, sound in negligence. However, even if couched in contract, the City’s claim still would be timely under CPLR 214(6) (see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 542 [2004]; Risk Control Assoc. Ins. Group v Maloof, Lebowitz, Connahan & Oleske, P.C., 151 AD3d 527, 528 [1st Dept 2017], lv dismissed 32 NY3d 1196 [2019]; compare Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d 704 [2018]).”

Actually, this is really the year’s best example of no “but for” causation.  This failing led to dismissal in Magassouba v Purcigliotti  2019 NY Slip Op 08938 Decided on December 12, 2019 Appellate Division, First Department.  Because the AD determined that plaintiff could never have won the case, the attorneys failings made no difference at all.

“This action alleging legal malpractice was correctly dismissed because plaintiff could not show that, but for defendants’ negligence, he would have prevailed in the underlying action alleging false arrest, wrongful imprisonment, and the deprivation of rights under 42 USC § 1983 (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). Plaintiff could not have prevailed in that action because the dismissing court found that there was probable cause for his arrest, and probable cause is a complete defense to the claims plaintiff asserted (Marrero v City of New York, 33 AD3d 556, 557 [1st Dept 2006]; Brooks v Whiteford, 384 F Supp 3d 365, 371 [WD NY 2019]). Plaintiff’s proposed amended malpractice complaint, which, in essence, restates the original allegations, does not rectify the deficiency.

Plaintiff’s argument that defendants failed to timely file the underlying action is unavailing because, even timely, the action would have been dismissed on the substantive ground of probable cause. His argument that defendants filed the underlying action in the wrong courthouse is unavailing because the action was dismissed against the Allegheny County District Attorney on grounds of personal jurisdiction, not subject matter jurisdiction.”

While one might think that the professional negligence field, which probably includes attorneys, brokers, real estate professionals, insurance professionals and designers has the same rules for all, that would be incorrect. Murphy v GHD, Inc2019 NY Slip Op 33476(U) November 27, 2019 Supreme Court, New York County Docket Number: 153468/2019
Judge: Robert D. Kalish illustrates the application of CPLR 214(d) to licensed engineers and architects.

In cases involving cases alleging design defects brought more than 10 years after completion, a heightened level of proof is required.

“CPLR 214-d and 321 l(h) were added by the Legislature in 1996 to reform
New York’s tort law, which, at the time, “tended to facilitate marginal claims against design professionals based on defects arising long after their work was completed and the improvements for which they were initially responsible had been in the owner’s possession and subject to the owner’s use and maintenance.” (Castle Vil. Owners Corp. v Greater New York Mut. Ins. Co., 58 AD3d 178, 183 [1st Dept 2008] [Lippman, P.J.]; see also Vincent C. Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, CPLR 214-d [2019] [“The purpose of CPLR 214-d is to provide ‘an expedited procedural device to quickly dispose of cases brought against a design professional more than ten years after completion that lack a basis in substantial evidence.'” [quoting Legislative Memorandum at 2614].) As the First Department
has further explained:

“The ‘substantial basis’ standard set forth in CPLR 321 l(h) constitutes a departure from the standard ordinarily applicable to the review of CPLR 3211 motions to dismiss for failure to state a cause of action. Rather than determine whether the allegations of the complaint when viewed most favorably to the plaintiff fall within any cognizable legal theory, a court reviewing the sufficiency of a complaint under CPLR 3211(h) must
look beyond the face of the pleadings to determine whether the claim alleged is supported by ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ (Senate Mem. in Support at 2614). While under this standard a plaintiff need not demonstrate that the claim is supported by a preponderance of the evidence, a fair inference to be drawn from the legislative history is
that CPLR 321 l(h) was intended to heighten the court’s scrutiny of the complaint and thereby make it easier to dismiss a CPLR 214–d action than other types of negligence actions.”

Even though the AD expressed “concerns” about the attorney’s representation of Plaintiff, all causes of action were dismissed on statute of limitations grounds.  The claim that Plaintiff was disabled or insane was summarily denied in Jemima O. v Schwartzapfel, P.C.  2019 NY Slip Op 08793 Decided on December 10, 2019 Appellate Division, First Department.

“The motion court correctly found that plaintiff’s causes of action for legal malpractice, violation of Judiciary Law § 487, negligent misrepresentation and negligent infliction of emotional distress were time-barred as they accrued on September 10, 2013, at the latest, and plaintiff did not commence the instant action until May 31, 2017, over eight months after the applicable three-year statute of limitations had already expired (see CPLR 214; Benjamin v Allstate Ins. Co., 127 AD3d 1120, 1121 [2d Dept 2015]; Colon v Banco Popular N. Am., 59 AD3d 300, 300 [1st Dept 2009]).

Plaintiff’s claim for breach of fiduciary duty was also properly dismissed as untimely pursuant to the applicable three-year statute of limitations because plaintiff sought only money damages and not equitable relief (see Kaufman v Cohen, 307 AD2d 113, 118 [1st Dept 2003]).

Plaintiff’s argument that the statute of limitations was tolled by reason of disability or insanity pursuant to CPLR 208 was properly rejected by the motion court, without a hearing. Plaintiff failed to put forth any evidence that would support a finding of disability or insanity sufficient to show that plaintiff was unable to function in society (see Santo B. v Roman Catholic Archdiocese of N.Y., 51 AD3d 956, 958 [2d Dept 2008]). In particular, she did not submit any doctors’ affidavits or medical records documenting the severity of her condition (see Matter of Brigade v Olatoye, 167 AD3d 462 [1st Dept 2018]; Santana v Union Hosp. of Bronx, 300 AD2d 56 [1st Dept 2002]). Moreover, the record does not show that plaintiff was incapable of protecting her legal rights despite her mental health diagnosis (see Burgos v City of New York, 294 AD2d 177, 178 [1st Dept 2002]). Although we have some concerns about the actions of plaintiff’s prior counsel, this does not alter the conclusion that this action is time-barred.

The complaint fails to state a cause of action for either negligent misrepresentation or negligent infliction of emotional distress on behalf of the children. There is no allegation that defendants made any representation to the children or that defendants engaged in any extreme and outrageous conduct (see Hernandez v Central Parking Sys. of N.Y., Inc., 63 AD3d 411 [1st Dept 2009]).

The motion court correctly found that the complaint fails to state a cause of action for fraudulent misrepresentation because plaintiff’s claimed losses resulted from defendants’ unauthorized withdrawal of her appeal and not from their purported false statements as to their [*2]ability to handle administrative proceedings (see Friedman v Anderson, 23 AD3d 163, 167 [1st Dept 2005].

Because plaintiff has put forth no specific argument on appeal as to her cause of action for intentional infliction of emotional distress, such claim is deemed abandoned.”