Motions to dismiss under CPLR 3211 generally start with an (a)(7) motion and then continue with an (a)(1) motion.  Sometimes there is a statute of limitations or more esoteric argument to be made.  In Citidress II Corp. v Tokayer   2013 NY Slip Op 02369 [105 AD3d 798]   April 10, 2013
Appellate Division, Second Department  the Appellate Division gave plaintiff some faint hope in the first paragraph, and then took it all away in the second.  Documents insufficient.  However, too much speculation.
 

"The Supreme Court should not have directed the dismissal of the causes of action based on legal malpractice and breach of contract pursuant to CPLR 3211 (a) (1). The documentary evidence submitted did not resolve all factual issues as a matter of law, and did not conclusively dispose of the claims asserted by the plaintiff (see Beal Sav. Bank v Sommer, 8 NY3d 318, 324 [2007]; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 590-591 [2005]; McCue v County of Westchester, 18 AD3d 830, 831 [2005]).

However, the Supreme Court properly determined that the complaint failed to state a cause of action. Speculative contentions about what might have happened had the defendant attorney (hereinafter the defendant) taken a different approach in litigating a case on behalf of the plaintiff were not sufficient to support the plaintiff’s allegations of legal malpractice (see Humbert v Allen, 89 AD3d 804 [2011]; Dempster v Liotti, 86 AD3d 169, 180 [2011]; Wald v Berwitz, 62 AD3d 786 [2009]). Since the plaintiff failed to plead specific facts showing causation and damages, its claims of legal malpractice failed to state a cause of action (see Kuzmin v Nevsky, 74 AD3d 896, 898 [2010]; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005]). Moreover, the claims alleging breach of contract also failed to state a cause of action. These claims are duplicative of the legal malpractice cause of action because they arise from the same facts as those underlying the legal malpractice cause of action, and do not allege distinct damages (see Soni v Pryor, 102 AD3d 856 [2013]; Ofman v Katz, 89 AD3d 909, 911 [2011]). "

The business of legal representation in real estate transactions has buoyed law firms since the Magna Carta.  It is not a completely carefree practice, as Haberman v Xander Corp.  2012 NY Slip Op 31645(U)  June 11, 2012  Sup Ct, Nassau County  Docket Number: 021508/10  Judge: Randy Sue Marber demonstrates:

"It appears from the Third-Party complaint that in or about October 2002, the  Third-Part Defendant, Michael Zapson and later the Defendant, DMH, was retained by the Defendant/Third-Party Plaintiff, Xander, to represent it in connection with a legal matter relating to a parcel of real property known as 350 Shore Road, Long Beach, New York owned by the Plaintiffs herein and located adjacent to the west of real property known as 360 Shore Road owned by the Defendant/Third-Part Plaintiff, Xander. The Plaintiffs, Sinclair Haberman and Belair Building, LLC (Haberman/Belair) were the developers of the property on which several multiple dwelling buildings were to be constructed over several years. After all of the units in Xander s building (Tower A " ), the first to be constructed, located at 360 Shore Road, had been sold, the Plaintiffs, Haberman/Belair, sought to develop the adjacent property where they proposed to construct Tower "B " The building permit issued on August 12 2003, permitting construction of the second building was, however, revoked by decision of the Zoning Board of Appeals of the City of Long Beach dated December 29 2003.

In or about September 2003, the Third-Part Defendants, on behalf of the Defendant/Third-Party Plaintiff, Xander, filed a Petition (bearing Index No. 014069/03) to determine title by adverse possession to, and/or a prescriptive easement over, part of 350 Shore Road for the purpose inter alia of preserving the parking plan of 360 Shore Road. The litigation, which continued for seven years, culminated in a bench trial which resulted in dismissal of Xander’s Petition by order of the Hon. William R. LaMarca entered January 15, 2010.

As a consequence of that dismissal, the Plaintiffs, Haberman/Belair commenced this action against the Defendant, Xander, and its board members alleging that because of the preliminary injunction obtained by Xander , the Plaintiffs were wrongfully prevented from proceeding with construction of Tower "B" at 350 Shore Road. The Plaintiffs allege that the adverse possession action prosecuted by Xander constituted malicious prosecution for which they seek to recover damages as well as the amount of the undertaking.

Inasmuch as the relief sought in the counterclaim asserted by Xander in the action (Index No. 002496/10), before the Hon. Antonio Brandveen  damages in an amount to be determined at trial to recoup part of the attorneys’ fees it has already paid as a result of Plaintiff DMH’s’ s conduct" is different from the indemnification and/or contribution claims Xander asserts in the amended Third-Part complaint in this action, there is no basis  to dismiss the Third-Part complaint on CPLR ~ 3211 (a) (4) grounds as there are not two action(s) pending between the same parties for the same cause of action in a court of any state or the United States. Nor was there any basis to order consolidation of the two actions. A motion for joint trial pursuant to CPLR  602 ( a) rests in the sound discretion of the court. Nationwide Assoc. v. Targee St. Internal Med Group, P. 286 A.D 2d 717,718 (2d Dept. 2001). Where common questions of law or fact exist , a motion to consolidate
or for a joint trial pursuant to CPLR 602 (a) will be granted absent a showing of prejudice  to a substantial right of the part opposing the motion. Whitman v. Parsons Transp. Group of NY, Inc. 72 A. 3d 677 678 (2d Dept. 2010). The court finds no basis, equitable or otherwise, that the claim by the Defendant/Third-Party Xander’s former attorneys for unpaid counsel fees for services rendered, settled on June 1 2012, should have been delayed or resolved in the context of the malicious prosecution claim in which the Defendant/Third-Part Plaintiff, Xander, seeks contribution and indemnification for any damages the Plaintiff, Haberman/Belair , may recover against it in this action."

A stipulation to answer or respond to a complaint covers a motion to dismiss as well as any other possible "response."  So the pro-se plaintiff found in Bob v Cohen   2013 NY Slip Op 02499 [105 AD3d 530]   April 16, 2013   Appellate Division, First Department.  After defendants were permitted to move to dismiss, the AD then affirmed dismissal because the Workers’ Compensation Board awarded legal fees to the law firm.  Under these circumstances, case over.

 "Defendants’ motion to dismiss was not untimely, as found by the motion court, since the parties had stipulated, both orally and in writing, to extend defendants’ time to "respond" to the complaint to January 31, 2011, and defendants had served and filed their motion to dismiss by that date (see DiIorio v Antonelli, 240 AD2d 537 [2d Dept 1997]; Del Valle v Office of Dist. Attorney of Bronx County, 215 AD2d 258 [1st Dept 1995]; CPLR 320 [a]; 3211 [e]; compare McGee v Dunn, 75 AD3d 624, 625 [2d Dept 2010]). On the merits, defendants were entitled to dismissal of this legal malpractice action commenced by their former client on res judicata grounds. The Workers’ Compensation Board’s award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff (see Workers’ Compensation Law § 24), precludes plaintiff’s present claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants’ fee application (see e.g. Lusk v Weinstein, 85 AD3d 445 [1st Dept 2011], lv denied 17 NY3d 709 [2011]; Zito v Fischbein Badillo Wagner Harding, 80 AD3d 520 [1st Dept 2011]). "
 

This case illustrates what happens when defendants and third-parties are fighting, while plaintiff remains on the sidelines, enjoying a brief respite.  When this happens in a legal malpractice case, the spectacle of legal malpractice defense firm arguing with a legal malpractice defense firm over technical dismissals is a touch ironic.

Balkheimer v Spanton  2013 NY Slip Op 00715 [103 AD3d 603]  Appellate Division, Second Department   is one such example.  

"In an action to recover damages for legal malpractice, the third-party defendants appeal from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated December 9, 2011, which denied their motion pursuant to CPLR 3211 (a) (5) and (7) to dismiss the third-party complaint.

Ordered that the order is reversed, on the law, with costs, and the motion of the third-party defendants pursuant to CPLR 3211 (a) (5) and (7) to dismiss the third-party complaint is granted.

Pursuant to General Obligations Law § 15-108 (b), "[a] release given in good faith by the injured person to one tortfeasor as provided in [General Obligations Law § 15-108 (a)] relieves him [or her] from liability to any other person for contribution as provided in article fourteen of the civil practice law and rules." Here, the plaintiffs executed a general release in favor of the third-party defendants. There is no indication in the record that the release was not executed in good faith. Therefore, pursuant to General Obligations Law § 15-108 (b), the third-party defendants are relieved from liability to the third-party plaintiffs for contribution (see Ziviello v O’Boyle, 90 AD3d 916, 917 [2011]; Kagan v Jacobs, 260 AD2d 442 [1999]). Accordingly, the Supreme Court should have granted that branch of the motion of the third-party defendants which was pursuant to CPLR 3211 (a) (5) to dismiss the contribution cause of action in the third-party complaint as barred by the release.

Here, the third-party complaint does not allege the existence of any duty owed by the third-party defendants to the third-party plaintiffs (see Raquet v Braun, 90 NY2d at 183; Breen v Law Off. of Bruce A. Barket, P.C., 52 AD3d 635, 638 [2008]; Keeley v Tracy, 301 AD2d 502, 503 [2003]). Furthermore, the third-party plaintiffs would not be compelled to pay damages for the alleged negligent acts of the third-party defendants (see Lovino, Inc. v Lavallee Law Offs., 96 AD3d at 910; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 786, 786-787 [1983]). Accordingly, the Supreme Court should have granted that branch of the motion of the third-party defendants which was pursuant to CPLR 3211 (a) (7) to dismiss the common-law indemnification cause of action in the third-party complaint."

The Appellate Division, First Department writes a short and pungent decision on an overbilling case.  In Chowaiki & Co. Fine Art Ltd. v Lacher   2014 NY Slip Op 01992   Decided on March 25, 2014   Appellate Division, First Department dismissal of certain of the claims are affirmed, and some are permitted to continue.  Unjust enrichment in addition to breach of contract remain, and plaintiff is not required to elect.  From the decision:
 

"In this action arising from defendant attorney and his law firm’s representation of plaintiffs in an action brought against them by a former employee, plaintiffs allege that they were excessively billed for services rendered, and that they were harassed, threatened and coerced into paying the excessive and overinflated fees. The motion court properly dismissed plaintiffs’ claim for breach of fiduciary duty as duplicative of the breach of contract claim, since the claims are premised upon the same facts and seek identical damages, return of the excessive fees paid (see CMMF, LLC v J.P. Morgan Inv. Mgt. Inc., 78 AD3d 562 [1st Dept 2010]; cf. Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]). Although plaintiffs sufficiently allege an independent duty owed to them, arising from the attorney-client relationship, the fraud claim is similarly redundant of the breach of contract claim, since it also seeks the same damages (see Coppola v Applied Elec. Corp., 288 AD2d 41, 42 [1st Dept 2001]; Makastchian v Oxford Health Plans, 270 AD2d 25, 27 [1st Dept 2000]).

However, we find that, as a dispute exists as to the application of the retainer agreement as to defendant, plaintiffs need not elect their remedies and may pursue a quasi-contractual claim for unjust enrichment, as an alternative claim (see Wilmoth v Sandor, 259 AD2d 252, 254 [1st Dept 1999]).

The cause of action based upon Judiciary Law § 487 was properly dismissed since relief under this statute is not lightly given and the conduct alleged does not establish the existence of a chronic and/or extreme pattern of legal delinquency which caused damages (see Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12 NY3d 715 [2009]; Nason v Fisher, 36 AD3d 486, 487 [1st Dept 2007]). [*2]

Plaintiffs’ claims of excessive billing and related conduct, which actions are not alleged to have adversely affected their claims or defenses in the underlying action, do not state a claim for legal malpractice (see e.g. AmBase Corp. v Davis, Polk & Wardwell, 8 NY3d 428, 434 [2007]). "

We’ve recently reported on a legal malpractice in a  $25 Million real estate project, as well as in a $ 40 Million re-insurance deal.  Here, plaintiff feels no less stung in a single house real estate transaction gone bad.  Was the attorney to blame?  So far the case avoided dismissal under CPLR 3211.  Whether it will ever go to trial is a different question.

Arias v Arbelaez   2014 NY Slip Op 50428(U)   Decided on March 17, 2014   Supreme Court, Queens County   McDonald, J. we see some sophisticated and unsophisticated people fooling around with real estate and mortgages.  
 

"According to the supplemental summons and amended verified complaint, filed on October 3, 2013, the plaintiff, Amparo Arias, was approached by defendant, Jorge E. Arbelaez, with respect to purchasing the subject premises, a residential property located at 250-02, 87th Avenue, Bellerose, New York. Plaintiff alleges that on December 17, 2011, she entered into a written "Acquisition Agreement" with Arbelaez whereby plaintiff would provide the necessary funds to acquire the property, and Arbelaez would handle the administrative process. The agreement stated that each party would be a 50% owner of a corporation known as "THREE A’S 250-02 LLC" formed to hold title of the premises and the corporation would hold the title in trust for the benefit of the plaintiff with title to ultimately pass to the plaintiff as the equitable owner on a future date. In order to acquire the premises, the buyer, THREE A’S 250-02 LLC, was to assume four separate mortgages totaling $550,000 and plaintiff would put up $50,000 for the acquisition of the property. The complaint states that defendant Hector Marichal represented the plaintiff, defendant Arbelaez, and the corporation in the acquisition of the premises.

Plaintiff alleges that she paid $50,000, a portion of which went to Arbelaez and a portion to Hector Marichal, as attorney, to cover the costs of acquiring the premises. On March 2, 2012 the corporation was taking title to the property subject to the four mortgages. Plaintiff claims that subsequent to the purchase she expended an additional $60,000 to settle and satisfy three existing mortgages on the property. Plaintiff claims that in March 2013 defendants Arbelaez and Marichal did not remit any of the monies she paid towards the first mortgage and as a result the property is in foreclosure. In addition, plaintiff contends that she did not receive marketable title in her name nor has she received any of the corporate documents for Three A’s 25-02 LLC after repeated requests.
 

Plaintiff asserts causes of action for a constructive trust asserting that the plaintiff is the equitable owner of the property and that nominal title was taken in the name of the corporation on behalf of the plaintiff and that despite her investment of $110,000 defendants have refused to reconvey title to the plaintiff. Plaintiff alleges that as a result, the defendants will be unjustly enriched if the premises are [*3]permitted to remain as presently titled.

With respect to defendant Hector Marichal, the complaint alleges that he was part of a conspiracy with the other defendants in which they had a preconceived intention not to honor their obligations to plaintiff but rather to secure their business interests for their own benefit. Therefore, plaintiff asserts causes of action against Hector Marichal for fraud, breach of fiduciary duty, breach of contract and legal malpractice. Plaintiff asserts in this regard that Marichal had no intention of fully representing plaintiff in the transaction and induced the plaintiff to transfer at least $110,000 to defendant as legal fees and acquisition costs. Counsel alleges that Marichal breached his legal and contractual duties to the plaintiff by engaging in fraudulent and deceitful conduct, failing to deliver marketable title, failing to inform plaintiff that the premises was in foreclosure prior to the purchase, and failing to disclose his conflict of interest with the seller, Ramirez.
 

Here, accepting the allegations in the complaint as true, according the plaintiff the benefit of every favorable inference, and determining only whether the allegations fit within any cognizable legal theory (see DeSandolo v United Airlines Inc., 71 AD3d 1073 [2d Dept.2010]; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 58 [2005]), this Court finds that the plaintiff has sufficiently stated a cause of action for fraud, legal malpractice and breach of fiduciary duty against Marichal. In the early stages of litigation such as the pre-discovery stage, "plaintiffs are entitled to the most favorable inferences, including inferences arising from the positions and responsibilities of defendants," and "plaintiffs need only set forth sufficient information to apprise defendants of the alleged wrongs" (DDJ Mgt., LLC v Rhone Group L.L.C., 78 AD3d 442 [1st Dept. 2010]; also see Selechnik v Law Off. of Howard R. Birnbach, 82 AD3d 1077 [2d Dept. 2011).
 

A persistent problem in legal malpractice (and in accounting malpractice) cases is the delayed damages issue.  Put simply, attorney advises on how to accomplish a goal and prepares papers on January 2.  Client uses the advice and paperwork to start a process and the other side resists.  Litigation ensues and 4 years later the other side wins.  When does the statute of limitations end?

For the most part, the rule is that the statute of limitations commences on the day the negligent advice is given, and is extended only by continuous representation.  This is true, even though no damages existed until the other side won, a year after the statute ran,

in XE Partners, LLC v Skadden Arps Slate Meagher &  Flom LLP    2014 NY Slip Op 30668(U)
March 6, 2014  Sup Ct, New York County  Docket Number: 152994/2013  Judge: Eileen Bransten we see this issue:

"Under New York law, "[i]t is well settled that a legal malpractice claim accrues when all the facts necessary to file the cause have occurred and the injured party can obtain relief in court.” Creditanstalt Inv. Bank AG v. Chadbourne & Parke LLP, 14 A.D.3d 414, 415 (1st Dep’t  2005). "What is important is when the malpractice was committed, not when the client discovered it." McCoy v. Feinman, 99 N.Y.2d 295, 301 (2002).

As explained by the Court of Appeals in the accounting malpractice context: "the claim accrues upon the client’s receipt of the accountant’s work product since this is the  point that a client reasonably relies on the accountant’s skill and advice and, as a consequence of such reliance, can become liable for tax deficiencies.” Ackerman v. Price Waterhouse, 84 N.Y.2d 53, 541 (1994). Receipt of the accountant’s advice "is the time when all the facts necessary to the cause of action have occurred and an injured party can obtain relief." Id. The reasoning of Ackerman has been extended to attorney malpractice claims. For example, in Proskauer Rose Goetz & Mendelsohn LLP v. Munao, 270 A.D.2d 150 (1st Dep’t 2000), the First Department cited Ackerman in holding that a client’s legal malpractice counterclaims accrued when the client received defendant’s purportedly
negligent work product. See id. at 151 ("The counterclaims accrued in April 1991, when plaintiff allegedly gave defendants negligent advice that they could shelter income through a certain joint venture."). The First Department likewise held in Nuzum v. Field, 106 A.D.3d 541, 541 (1st Dep’t 2013), deeming legal malpractice claims brought in connection with the drafting of promissory notes time-barred where brought more than three years after the allegedly defective documents were prepared. See also Mark v. Dechert, LLP, 58 A.D.3d 553, 554 (lst Dep’t 2009) ("Plaintiffs’ legal
malpractice claim is barred by the statute of limitations (CPLR 214[6]), which began to run in January 2000, when the merger of the corporate plaintiffs was completed and defendant law firm filed the merger documents."). Viewed in this framework, Plaintiffs legal malpractice cause of action is clearly barred by the statute of limitations. Plaintiffs claim accrued when Defendants’ allegedly negligent work product was received by Defendants. To paraphrase Ackerman, this was
the time when all the facts necessary to the cause of action occurred and when Plaintiff was able to obtain relief. Since the advice was given in 2008, Plaintiffs 2013 filing was untimely. 

In opposition, Plaintiff contends that it did not suffer an "actionable injury" until the adverse arbitral finding, and as such~ had no claim until that point. However, the First Department rejected a similar argument in Lincoln Place, LLC v. RVP Consulting, Inc.,  70 A.D.3d 594 (1st Dep’t 2010), dismissing a claim asserting legal malpractice in the drafting of a lease assignment as time-barred where the claim was brought five years after lease assignment was executed. While the plaintiff-client argued that its claim did not accrue until it was found liable for outstanding rent due to the faulty assignment, the First Department held otherwise, stating that the collateral adjudication "was not a prerequisite to the existence of an actionable injury." Id. at 594. Likewise here, the resolution of the arbitration was not a prerequisite to a pleading of"actionable injury" by XE Partners. Accordingly, Plaintiffs claim did not accrue after the arbitration ruling in 2010; instead,
consistent with Ackerman, such claim accrued when the legal advice was received. Plaintiff cites to a Second Department case, Frederick v. Meighan, 75 A.D2d 528 (2d Dep’t 20l0) for the contrary proposition. Even accepting Plaintiffs reading of Frederick as correct for the sake of argument, this reading is in conflict with Ackerman and its First Department progeny and therefore is not controlling.

Thus, for the foregoing reasons, Defendants’ motion to dismiss is granted on statute of limitations grounds.

Milgram Thomajan & Lee, P.C. v Golden Gate Petroleum, P.C.    2014 NY Slip Op 24063   Decided on March 19, 2014   Appellate Term, First Department  teaches three lessons.  One is that a well written letter to the client during litigation warning of potential problems in choosing one course of conduct over another may sway the outcome.  The second is that strategic choices, supported by good reasons will often defeat legal malpractice claims and the third is that unpaid legal services, especially those that are recouped from a bankruptcy, can be very powerful.
 

"The action arises out of plaintiff’s representation of the first-named defendant, a petroleum importer, in connection with an administrative protest of a customs duty assessment imposed on a shipment of gasoline and related chemicals. The jury’s verdict, finding that plaintiff did not commit malpractice in its underlying representation of defendant, was not against the weight of the evidence. The trial evidence, fairly interpreted, supports the jury’s evident rejection of defendant’s contention that but for plaintiff’s advice, defendant would have prevailed in the underlying customs protest, one which, the record shows, defendant elected to pursue in the face of plaintiff’s frank admonition that it "may prove a tough fight, the outcome of which cannot be predicted with any certainty." The evidence, including the conflicting expert opinion testimony, permitted the jury to conclude that, in advising defendant, the lawyers of plaintiff law firm did not disregard settled law (see Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]) and would have permitted a jury finding that the advice itself was not the proximate cause of defendant’s losses (see Chadbourne & Parke, LLP v HGK Asset Mgt., Inc., 295 AD2d 208, 209 [2002]). And while defendant posits several alternative courses that plaintiff might have pursued in the underlying administrative protest, it failed to show that the tactical decisions made by the firm did not constitute "proper strategic legal decision-making" (Taylor v Paskoff & Tamber, LLP, 102 AD3d 446, 448 [2013]), or so the jury reasonably could find. Nor was the jury’s consideration of the legal malpractice issue shown to have been compromised in any way [*2]by the form of the verdict sheet, particularly when that document is viewed in the context of the charge as a whole (see Plunkett v Emergency Med. Serv., 234 AD2d 162, 163 [1996]).

The record discloses no evidentiary error warranting reversal. The out-of-court statements made by defendant’s (now) deceased chief financial officer were admissible under the "speaking agent" exception to the hearsay rule (see Loschiavo v Port. Auth. of New York & New Jersey, 58 NY2d 1040, 1041 [1983]). Further, in light of the voluminous evidence considered by the jury, including over 60 trial exhibits introduced by defendant, any error in the exclusion of the two documents now complained of by defendant would have been harmless (see Ramkison v New York City Hous. Auth., 209 AD2d 256, 256 [2000]).

We note finally that the court properly directed a verdict in favor of plaintiff on its main claim for unpaid legal services, a claim which, as one abandoned by plaintiff’s trustee in bankruptcy, revested in plaintiff at the close of the bankruptcy proceeding (see Dynamics Corp. of Am. v Marine Midland Bank—New York, 69 NY2d 191, 195-196 [1987]; Culver v Parsons, 7 AD3d 931, 932 [2004]). "