We read all the NY cases published that discuss legal malpractice, and once in a while we read a case that merely mentions the words "legal malpractice" in another setting. Varano v FORBA Holdings, LLC  2014 NY Slip Op 24056  Decided on March 4, 2014  Supreme Court, Onondaga County  Karalunas, J. is the most gruesome case we have read.  
 

"The Old Forba plaintiffs’ treatment can be summarized as follows:

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.

The defendants common to these five plaintiffs include all the New and Old Forba defendants, Naveed Aman, DDS and Koury Bonds, DDS. In addition, Yaqoob Khan, DDS is a defendant in the Montanye, Fortino, Mathews and Bohn actions, Tarek Elsafty, DDS and Dimitri Filostrat, DDS are defendants in the Montanye and Fortino actions, Janice Randazzo, DDS is a defendant in the Kenyon action, LocVinh Vuu, DDS is a defendant in the Fortino action, and Grace Yaghmai, DDS is a defendant in the Montanye action.

Treatment of the Groups 1-4 plaintiffs who are not also Old Forba plaintiffs can be summarized as follows:Plaintiff Martin treated at the Syracuse Small Smiles clinic between August 2007 and May 2008, when he was two years old. During that time, he had 10 fillings, and on four occasions his teeth were filled without anesthesia. Compl. ¶159.

Plaintiff McMahon treated at the Syracuse Small Smiles Clinic between October 2006 and November 2007, when he was between the ages of one and three. During that time he had four root canals with crowns and four fillings. He was restrained twice. Compl. ¶162.

The case is now consolidated for trial in Syracuse, in the near future.

95% of the cases we see are former plaintiff versus their attorney, and the balance are former defendant against their attorney.  Of those, only one or two are the insurance company versus their attorney after a settlement.  Here, in The Insurance Corp. of N.Y. v Smith, Mazure,
Director, Wilkens, Young & Yagerman, P.C.   2014 NY Slip Op 30494(U)   March 3, 2014
Supreme Court, New York County   Docket Number: 102485/2008  Judge: Saliann Scarpulla plaintiff has avoided summary judgment, and the law firm comes back for a second shot.

"Briefly, in this legal malpractice action, plaintiff The Insurance Corporation of  New York (Inscorp) alleges that a Smith Mazure member, Joel Simon, Esq., provided  negligent legal advice to Inscorp in late 2004 and early 2005 regarding the coverage  available under a general liability policy issued by Inscorp to G.B. Construction LLC (the  policy). Inscorp alleges that Simon negligently advised Inscorp’s third-party claims administrator, Ward North America (Ward), that Inscorp was contractually obligated to provide a defense and indemnification to both G.B. Construction and West Perry, LLC in an underlying Labor Law action, captioned Soto v. West Perry, LLC, et al. (Sup Ct, NY County, index No. 114283/2001) (the Soto action). Inscorp further alleges that Smith
Mazure improperly advised it to rescind as invalid and untimely two valid late-notice-of claim
disclaimers issued by Inscorp to G.B. Construction, a subcontractor, and to West Penn, the construction site owner. Inscorp alleges that the disclaimers were, in fact, enforceable because West Perry was not an additional insured under the policy, and because neither G.B. Construction nor West Perry had satisfied the policy’s notice-of claim requirements."

In the prior order, this court denied Smith Mazure’s summary judgment motion, holding that the parties raised triable issues regarding, among other things, whether Smith Mazure improperly simultaneously represented Inscorp and United National Insurance Group (UNG) on the relevant dates in November 2004 through February 2005 with respect to available insurance coverage for West Pen;r and G.B. Construction in the Soto action. In the prior order, the court also found that triable issues existed regarding whether the alleged negligent legal advice was a proximate cause of Inscorp’s damages, and held that the damages alleged were sufficiently ascertainable to sustain a legal malpractice claim.

Smith Mazure contends for a second time that Inscorp cannot demonstrate the damages element of a cognizable legal malpractice claim because it cannot distinguish between the money that it expended in defending and indemnifying West Perry from the money that it expended in defending and indemnifying G.B. Construction, inasmuch as the defense and indemnification of both companies were handled simultaneously by a single law firm, Smith Mazure. In the prior order, this court considered this argument, and held that Inscorp’s allegations that it incurred "$563, 173.13 in defending and settling the underlying Soto action on behalf of G .B. Construction and West Perry directly as a result of Simon’s allegedly negligent coverage advice to Weiss [were] sufficiently actual and ascertainable to sustain a cause of action for legal malpractice."  Last, Smith Mazure argues for the first time that Inscorp cannot prove damages as a result of Smith Mazure’s conduct because Inscorp was aware that West Perry was not an additional insured under the policy, prior to its settlement of the Soto action on behalf of West Perry. Inasmuch as Smith Mazure admittedly makes this argument for the first time, the argument cannot form a basis for reargument."

Defense attorneys, when moving to dismiss, or even to denigrate Plaintiff’s case will tell the court (rather haughtily) that  "this is the 4th attorney for plaintiff" or something similar.  Their point is that the case must be worthless if there have been multiple attorneys for plaintiff.

Wadsworth Condos LLC v Dollinger Gonski & Grossman.  2014 NY Slip Op 30502(U, ) February 27, 2014 Supreme Court, New York County Docket Number: 600899/2009 Judge: Louis B. York is an example of how a simple thing like obtaining and serving a notice for the expert can get pushed from attorney to attorney, and then cause a problem.

"Plaintiffs Wadsworth Condos, LLC, and 43 Park Owners Group, LLC, move, pursuant to CPLR 2004, 3101 ( d) (1) (i) and 3101 (h), to compel defendants Dollinger, Gonski, & Grossman, and Michael Dollinger (defendants), to accept plaintiffs’ supplementary expert witness disclosure, and to allow plaintiffs’ experts to testify at trial. Defendants cross-move for an order denying plaintiffs’ motion to compel the acceptance of the expert disclosure."

This action involves allegations that defendants committed legal malpractice when they allegedly commenced an action without plaintiffs’ authorization. Plaintiffs served a summons and complaint on defendants on March 24, 2009. Plaintiffs’ first attorney of record in this action  was Silverman, Sclar, Shin, & Byrne. On October 5, 2009, the law firm of Shapiro & Shapiro,LLP, took over as plaintiffs’ counsel, followed by Daniel Friedman, Esq. who served as counsel until March 24, 2011, at which time the law firm of Peter R. Ginsberg Law, LLC, was retained. Plaintiffs’ present counsel is Marc M. Coupey, Esq., who became plaintiffs’ sole counsel on August 17, 2012.

Plaintiffs contend that, on August 5, 2011, they served on all parties their initial response to defendants’ demand for expert witness information in which they reserved their rights to provide defendants with expert information once they retained such experts. Plaintiffs maintain that on November 4, 2011, all parties were notified at the deposition of witness Joe Bobker that Michael Sullivan was going to be plaintiffs expert and what his probable testimony would be. "

"The Appellate Division, First Department, has held that "[p ]preclusion of expert evidence on the ground of failure to give timely disclosure, as called for in CPR 3101 ( d) (1) (i), is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion." Martin v Tribune Bridge & Tunnel Auth., 73 AD3d 481, 482 (1st Dept 2010) (citations omitted). See also Handwork v City of New York, 90 AD3d 409, 409 (1st Dept 2011) (holding that there is no evidence of what prejudice defendants suffered or that plaintiff willfully failed to disclose the experts in a timely manner). Here, defendants fail to meet their burden and do not demonstrate what, if any, prejudice they will suffer if plaintiffs serve expert disclosure. "

Piro sued Russo, Karl, Widmaier & Cordano PLLC for legal malpractice.  Piro used attorney Rodriguez for that case.  At the same time Bonacasa obtained a default judgment against Piro. A guess is that both arose from the same issues and that Russo, Karl should have been defending Piro from Bonacasa.  So, in Russo, Karl, Widmaier & Cordano PLLC v Piro  2014 NY Slip Op 30505(U)  February 24, 2014  Supreme Court, Suffolk County  Docket Number: 13-19943  Judge: Peter H. Mayer, we see both Rodriguez and Bonacasa fighting over the same proceeds.  The winner is determined by Judiciary Law 475.  Proceeds of a litigation have a higher priority than other debts. 

"Rodriguez now cross-moves for an order directing the plaintiffs to release its legal fee of $30,000, and dismissing Bonacasa’s cross claims. In support of its cross motion, Rodriguez submits, among other things, the pleadings herein, its written retainer agreement and billing statements in the Piro action, a copy of a Court order in the Bonacasa action, and a "settlement" signed by Piro regarding Rodriguez’s legal fee. It is undisputed that Rodriguez was retained by Piro on January 10, 2010, that Rodriguez commenced the Piro action on February 1, 2010, that Rodriguez  represented Piro throughout the litigation, and that Rodriguez claims a charging lien based on its procuring a settlement in the mount of $65,000. It is ‘A-ell settled that a charging lien for legal fees attaches automatically upon commencement of the client’s action (Judiciary Law 475; Resnick v Resnick, 24 AD3d 238, 806 NYS2d 200 [1st Dept 2005]; Matter of Dresner v State of New York, 242 AD2d 627, 662 NYS2d 780 [2d Dept 1997]; Rotker v Rotker, 195 Misc 2d 768, 761 NYS2d 787 [Sup Ct, Westchester County 2003]; see also Matter of Cohen v Grainger, Tesoriero & Bell, 81NY2d655, 602 NYS2d 788 [1993]). An attorney’s charging lien is vested equitable ownership interest in client’s cause of action and maintains superiority over anyone claiming through the client (LMWT Realty Corp. v Davis Agency Inc., 85 NY2d 462, 626 NYS2d 39 [1995]; see also Banque Indosuez v Sopwith Holdings Corp., 98 NY2d 34, 745 NYS2d 754 [2002]; O’Connor v Spencer (1977) Inv. Ltd. Partnership, 8 Misc 3d 658, 798 NYS2d 888 [Sup Ct, Queens County 2005]). The right to assert such a lien is based upon the equitable doctrine that an attorney should be paid out of the proceeds of the judgment procured by the attorney (Theroux v Theroux, 145 AD2d 625, 536 NYS2d 151 [2d Dept 1988]; see LMWT Realty Corp. v Davis Agency, supra; Kaplan v Reuss, 113 AD2d 184, 495 NYS2d 404 [2d Dept 1985], affd 68 NY2d 693, 506 NYS2d 304 [ 1986]). The statute codifying the law regarding charging liens, Judiciary Law 475, provides, in relevant part, "[f]rom the commencement of an action … the attorney who appears for a party has a lien upon his client’s cause of action, claim or counterclaim, which attaches to a … determination, decision, judgment
or final order in his client’s favor, and the proceeds thereof in whatever hands they may come."  thus, a charging lien affects only the proceeds obtained in a particular litigation and may be enforced only to obtain the reasonable value of legal services and disbursements in connection with that litigation (Kaplan v Reuss, id.; see Natole v Natole, 295 AD2d 706, 708, 744 NYS2d 227 [3d Dept 2002]; Butler, Fitzgerald & Potter v Ge/min, 235 AD2d 218, 651NYS2d525 [1st Dept 1997]; Surdam v Marine Midland Bank, 198 AD2d 578, 603 NYS2d 233 [3d Dept 1993]). It has been held that the statute is remedial in nature and calls for a liberal construction thereunder (Herlihy v Phoenix Assur. Co., 274 AD 342, 83 NYS2d 707 [3 Dept 1948]). Here, Rodriguez has established its entitlement to summary judgment regarding its claim to a  charging lien and the release of its legal fees in the Piro action. 2 Thus, it is incumbent upon the nonmoving parties to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O’Neill v Fishkill, supra). In opposition to Rodriguez’s cross motion, Bonacasa submits the affirmation of her attorney, who reiterates the contentions set forth in her cross motion for summary judgment. As determined above, Bonacasa has failed to raise an issue of fact requiring a trial of Rodriguez’s claim for legal fees. As noted above, Piro does not dispute the validity of his retainer agreement with Rodriguez, or the legal fee charged thereunder."
 

AQ Asset Mgt. LLC v Levine  2014 NY Slip Op 30489(U) February 27, 2014  Sup Ct, New York County  Docket Number: 652367/2010  Judge: Shirley Werner Kornreich is the story of a big deal gone bad, and how that failure devolves into looking for suspects.  Put another way, the clients are now looking to see how and why they might get more money back.  In a case that has spanned 37 motions and more than 1200 documents the parties aren’t even through depositions.  One thing is clear…it’s too late to sue for legal malpractice.  The only question left is fraud and accounting for $30 Million.

"Pursuant to an order dated March 22, 2013, Levine deposited $3,420,787.01 into court, which he claimed represented the remaining balance of the escrow funds at issue in this action. By order dated April 9, 2013, he was directed to account for his handling of the escrow from the time of receipt until the time of deposit. Levine produced an affidavit of account, which he claims sets forth all of the transactions related to the escrow, with supporting exhibits attached. According to Levine’s affidavit, the principal, original escrow amount remaining was $3,405,979.68; the amount
deposited with the court included accrued interest to which Levine claims he is entitled. By order dated October 16, 2013, pursuant to a decision by the Appellate Division, the court directed that the monies deposited by Levine be released to defendants’ attorney (NYSCEF Doc No. 1053).
On April 22, 2013, plaintiffs served a reply to defendants’ original counterclaims. On May 6, defendants served an amended answer, containing counterclaims against plaintiffs  and cross-claims against Michael Levine. Though the amended answer contained a demand that Levine answer (see amended cross-claims~ 305; CPLR 3011 ), Levine has refused to do so. "

"A. Default Judgment
As indicated at oral argument, the issue of Levine’s responsive pleading shall be resolved by requiring him to serve an answer to defendants’ cross-claims within twenty days. That branch of the motion seeking to hold him in default for failing to answer, therefore, is denied.

B. Cross-Motion to Dismiss
In their amended answer defendants allege that, acting in concert with Zimmermann and Artist House, Levine misled Patrizzi as to the contents of the Distribution Agreement, thereby inducing him to sign it. That agreement was later used to confer voting rights on Zimmermann, who in tum used his power to join with Artist House in removing Patrizzi from management and, later, in reducing defendants’ shares in the Company to zero. Defendants also have called into question the final $300,000 payment Levine claims to have made from the escrow to procure a financing commitment from an entity known as Karastir LLC (Karastir), contending that they never authorized that disbursement. These allegations are sufficient to sustain defendants’ third and fourth cross-claims against Levine for fraud and breach of his fiduciary duties as escrow agent. Similarly, defendants’ first cross-claim for a declaratory judgment that they are entitled to all funds or shares that were delivered to or held by Levine as part of the stock transaction is viable, as is their demand for an accounting.
The other cross-claims challenged here lack merit. The second cross-claim seeks a declaration that defendants have satisfied all of their obligations under the stock purchase agreement and bear no further liability arising out of the stock transaction. Defendants do not explain how any controversy regarding their obligations thereunder could implicate Levine, who was not a party to the transaction. The second cross-claim is dismissed. Since the court has previously held that defendants cannot maintain any claim based on their supposed entitlement to a certain payment of $2 million that was made to Levine’s escrow account in 2006 and released by him to  Antiquorum in 2010 (decision & order, Mar 28, 2013, 18-19), the eighth, eleventh and twelfth cross-claims (for constructive fraud, conversion and fraudulent concealment) are dismissed in their entirety, and the third cross-claim for fraud is also dismissed to the extent it relates to the transfer of these funds. Defendants are attempting to use their right to replead to improperly circumvent a decision on the merits which has not been reversed or modified and for which they did not seek reargument (DiPasquale v Sec. Mut. Life Ins. Co. of New York, 293 AD2d 394, 395 [1st Dept 2002] citing Societe Nationale d’Exploitation Jndustrielle des Tabacs et Allumettes v Salomon Bros. Intl., Ltd., 268 AD2d 373, 374 [1st Dept 2000] Iv denied 95 NY2d 762 [2000]; Romanov Kassebaum, 250 AD2d 661, 662 [2d Dept 1998]; see also The Plaza PH2001 LLC v Plaza Residential Owner LP, 98 AD3d 89, 98 [lst Dept 2012] [upholding dismissal of second action commenced prior to  modification of motion court’s dismissal of first action on merits])."

Sometimes legal malpractice cases are an exercise in looking back.  Plaintiffs look backwards to what happened at the first trial, or what went wrong years ago.  Burbige v Siben & Ferber
2014 NY Slip Op 01426  Decided on March 5, 2014  Appellate Division, Second Department  is an example.  Plaintiff fell from a broken ladder at work.  Not stated, but presumed is that he had a workers’ compensation case. Two years later he hired the defendant attorneys to sue the manufacturer.  They did, and the manufacturer promptly filed for bankruptcy.  Left unexplained is who has the ladder?
Now, plaintiff sues the attorneys for lack of diligence in suing the manufacturer.  While the case discusses timing of expert witness notifications, it does hold that the attorneys cannot be sanctioned for not having the ladder.  They have a picture, but it’s a mystery who has the ladder.

"In August 1989, the plaintiff was injured when a metal railing on a ladder he was descending broke off, causing him to fall. In June 1991, he retained the defendant Siben & Ferber, a partnership consisting of Gary L. Siben and Steven B. Ferber (hereinafter S & F), to represent him in a products liability lawsuit against the ladder manufacturer. The action was commenced in August 1991. After issue was joined in October 1991, the manufacturer filed for bankruptcy. The products liability action remained dormant until March 2004, when the defendant Leonard G. Kapsalis, then an associate at S & F, contacted the plaintiff to sign authorizations to verify his responses to interrogatories. One of the responses indicated that the plaintiff’s employer had retained the subject ladder after his accident. However, while S & F’s legal file contained photographs of the ladder, the location of the ladder was unknown. In 2007, the plaintiff commenced this legal malpractice action alleging, inter alia, that the defendants were negligent in failing to diligently prosecute the products liability action. The plaintiff now appeals from an order of the Supreme Court which granted the defendants’ motion to preclude his expert from testifying at a retrial and which denied his cross motion pursuant to CPLR 3126 to impose a sanction upon the defendants for the spoliation of evidence.

CPLR 3101(d)(1)(i) "does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,’ unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing [*2]party" (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754, quoting Lillis v D’Souza, 174 AD2d 976, 976 [internal quotation marks omitted]; see Barchella Contr. Co., Inc. v Cassone, 88 AD3d 832, 832; Saldivar v I.J. White Corp., 46 AD3d 660; Fava v City of New York, 5 AD3d 724, 724-725). Here, the record does not support a conclusion that the plaintiff’s delay in retaining his expert or in serving his expert information was intentional or willful. Furthermore, any potential prejudice to the defendants was ameliorated by a two-month adjournment of the retrial agreed to by the parties (see Shopsin v Siben & Siben, 289 AD2d 220, 221). Accordingly, the Supreme Court improvidently exercised its discretion in granting the defendants’ motion to preclude the plaintiff’s expert from testifying at the retrial (see Johnson v Greenberg, 35 AD3d 380; Dailey v Keith, 306 AD2d 815, affd 1 NY3d 586).

Contrary to the plaintiff’s contention, the Supreme Court properly denied his cross motion pursuant to CPLR 3126 to impose a sanction upon the defendants for the spoliation of evidence, as there is no evidence that the defendants were responsible for the loss or destruction of the subject ladder (see Gotto v Eusebe-Carter, 69 AD3d 566, 567). "

The Client comes in and tells you, "They didn’t know the case!  They didn’t prepare!  They lost the case!"  Is that enough for a good legal malpractice case?  A demonstrated lack of skill and a failure to prepare for litigation might seem proper fodder for a legal malpractice case, it’s not always enough.

In Chibcha Rest., Inc. v David A. Kaminsky & Assoc., P.C. 2013 NY Slip Op 00281 Appellate Division, First Department the court held: "Plaintiffs’ allegations that defendants made "no useful attempt" to argue against a TRO sought and obtained by the landlord, and that defendants were both unprepared and unskilled in defending them, do not suffice. As the motion court observed, plaintiffs do not allege, for example, that defendants missed any deadlines or otherwise failed to protect or preserve plaintiffs’ rights (see Mortenson v Shea, 62 AD3d 414, 414-415 [1st Dept 2009])."

This case demonstrates the bold difference between a failure to file within a deadline, and almost all other shortcomings. Presentation of a certain witness, selection of an expert, questions put in cross-exam. All very important, but none of them a failure to file within a deadline or a failure to preserve a client’s rights.

The Court explains further: "Contrary to plaintiffs’ assertions, the record supports the motion court’s conclusion that plaintiffs’ damages, sustained from the closing of the subject premises after issuance of the TRO, were not caused by defendants’ conduct, but rather by plaintiffs’ failure to obtain the necessary insurance before the landlord brought its motion for a temporary restraining order. Plaintiffs concede that the insurance coverage required by the lease initially was not in place, and that the TRO against them was lifted only after the requisite insurance was obtained. As the premises were closed due to the lack of insurance, it cannot be said that plaintiffs would not have incurred any damages, but for defendants’ purported negligence (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007])."
 

Plaintiff must always prove that departures from good and accepted practice by the defendant were a proximate cause of the injury. Note that there need be no proof that the departure was the proximate cause. In Arbor Realty Funding, LLC v Herrick, Feinstein LLP 2013 NY Slip Op 01216
Appellate Division, First Department we see such an application.
"Defendant argues that even if, but for its allegedly erroneous legal advice as to zoning issues, plaintiff would not have made bridge loans to the developer of a residential tower at 303 East 51st Street in Manhattan, plaintiff cannot establish legal malpractice or negligent representation because it cannot demonstrate that the zoning advice proximately caused its loss on the defaulted loans. Plaintiff made the loans in mid-2007. Defendant contends that the crane collapse at the project site in March 2008, which killed seven people, the market collapse beginning in late 2007 and continuing through 2008, and plaintiff’s insufficient response to the Department of Buildings letter notifying plaintiff of its intent to revoke the project’s building permits, constituted intervening events that severed the causal link between defendant’s zoning advice and plaintiff’s loss (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]).

There is, however, evidence in the record that raises an issue of fact as to causation (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). It appears [*2]that potential takeout lenders had concerns about the zoning issues even before March 2008. To the extent later events contributed to plaintiff’s loss, they are properly considered by a fact-finder (see e.g. Schauer v Joyce, 54 NY2d 1 [1981])."