Plaintiff brings a legal malpractice action based upon a series of real estate closings.  His  2011 complaint strikingly fails to  say when the attorney last represented him.  Result?  In Elmakies v Sunshine   2014 NY Slip Op 00478   Decided on January 29, 2014   Appellate Division, Second Department the case is dismissed on the statute of limitations.
 

"The instant action to recover damages for legal malpractice and breach of fiduciary duty was commenced in December 2011. The complaint does not allege when the conduct giving rise to these causes of action occurred.

The defendant Jeffrey Sunshine and his law firm, Jeffrey Sunshine, P.C. (hereinafter together the Sunshine defendants), moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them as time-barred. In support of the motion, Sunshine submitted an affidavit stating that his firm "was retained to represent the plaintiff Downstate Elmira Acquisiton Corp. in a series of real estate closings for the purchase of properties in Elmira, New York," and "[t]to the best of my recollection, the last closing took place on October 5, 2007." In support of that claim, Sunshine submitted a copy of a closing statement dated October 5, 2007.

In opposition, the plaintiff Nissim Elmakies submitted an affidavit stating that Sunshine acted as his business attorney, and was in "continuous communication regarding my investment." However, the last communication with Sunshine alleged by the plaintiffs was a facsimile transmission dated December 7, 2007.

The Sunshine defendants made a prima facie showing that the three-year statute of limitations for legal malpractice (see CPLR 214[6]) expired before the action was commenced, and the plaintiffs failed to raise a question of fact in opposition (see Hadda v Lissner & Lissner LLP, 99 AD3d 476, 477). Further, since the plaintiffs seek monetary relief for the alleged breach of fiduciary duty, the statute of limitations for that cause of action is also three years (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139). That cause of action was based on the same facts underlying the legal malpractice cause of action and, therefore, was time-barred (see Vermont Mut. Ins. Co. v McCabe & Mack LLP, 105 AD3d 837, 839; Tsafatinos v Lee David Auerbach, P.C. , 80 AD3d 749, 750). "

In Scekic v SL Green Realty Corp.   2014 NY Slip Op 30186(U)  January 21, 2014  Sup Ct, New York County  Docket Number: 113386/10  Judge: Doris Ling-Cohan a worker is injured while up on a 15 foot ladder which suddenly splits apart.  He falls, and a Labor Law 240(1) case is born.  but, what happened to the ladder, and how does that affect the case.  More importantly, was it the obligation of any attorney to preserve or seek to preserve the ladder?

"This action arises out of a construction site accident. Plaintiff Zoran Scekic, a steamfitter, was allegedly injured on September 30, 2010 when the ladder he was standing on split in two, causing him to fall 15 feet to the floor. Plaintiff and his wife, Vesna Scekic (together, plaintiffs), subsequently commenced this action seeking recovery for violations of Labor Law § § 240 ( 1 ), 241 (6), 200 and for common-law negligence.  Plaintiff testified at his deposition that he was working as a  teamfitter for FL Mechanical on the date of his accident (Plaintiff EBT Transcript, at 27). According to plaintiff, FL Mechanical provided all of his tools and equipment except for hand tools (id. at 34). While he was looking through blueprints, a supervisor named Mike from Structure Tone called him and told him that a pipe needed to be raised that was too low (id. at 45-46). Plaintiff testified that the pipe needed to be raised because the contractors could not put the ceiling below that pipe (id. at 47). Plaintiff told Mike that he needed a ladder to reach that 15-foot height because FL -3- [* 4]
Mechanical had already sent back its ladder that would have been tall enough to reach that area a
week or two earlier (id. at 47, 141). Mike then pointed to a ladder and told plaintiff to "use that ladder" (id. at 48). The ladder, which plaintiff described as an extension ladder, was located about 30 or 40 feet away (id at 48, 49). Plaintiff further testified that while he was on the ladder and tightening bolts, "the ladder broke up somehow," and "just split, you know, in two pieces," causing him to fall (id. at 52, 55, 59). Plaintiff was not wearing a harness at the time of his accident (id. at 59). Plaintiff testified that he only received instructions from Mike and his boss Silvio as to what to do on the job (id. at 128)."

"Plaintiffs move to strike Structure Tone’s answer based upon spoliation of evidence. In support, plaintiffs contend that Structure Tone’s superintendent, Michael Sansone, observed plaintiff and the ladder lying on the ground in two pieces after the accident, but did nothing to preserve the ladder. Plaintiffs maintain that Sansone was on notice that plaintiff would commence a lawsuit as a direct result of the accident. In opposition, the Structure Tone defendants contend that Structure Tone did not destroy the ladder; rather, Schindler destroyed the ladder on the date of the accident. The  structure Tone defendants argue that plaintiff never demanded production of the ladder, and that there is no need to preserve the ladder for a Labor Law§ 240 (1) claim. In any event, the Structure Tone defendants contend that they produced copies of photographs of the ladder that were  identified at the depositions (Levien Affirm. in Support, Exh. 20). "Under New York law, spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them" (Kirkland v New York City Housing. Auth., 236 AD2d 170, 173 [1st Dept 1997]). In determining the sanction to be imposed on a spoliator, the court must examine the extent that the non-spoliating party is prejudiced by the destruction of the evidence and whether dismissal is warranted as "a matter of elementary fairness" (id. at 175 [internal ·quotation marks and citation omitted]). Striking a pleading is warranted only where the loss of the evidence leaves the affected party without the means to prosecute or defend the action (see Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60 [1st Dept 2002]). However, where there is independent evidence that permits a party to adequately prepare its case, a less drastic sanction is appropriate (see e.g. Jfraimov v Phoenix Indus. Gas, 4 AD3d 332, 333-334 [2d at 2004] [negative inference charge for destruction of truck and propane tanks]). ere, plaintiffs’ request to strike Structure Tone’s answer is denied. It is undisputed that the ladder was destroyed after the accident. However, plaintiffs have not shown that Structure Tone destroyed the ladder. Structure Tone’s project superintendent, Michael  Ransone, testified that Structure Tone did not destroy the ladder, and that he heard that Schindler destroyed the ladder based upon superstition in the trade (Sansone EBT, at 38-40). In any case, plaintiffs have ·not demonstrated that they are without the means to prosecute any of their claims based upon the loss of this evidence."

It’s said that there is a general level of good practice standards for attorneys in New York, and its well settled that all attorneys are expected to practice at the level (admittedly not the very highest level) of good practice among competent attorneys in New York.  What does this actually mean?

The question of how a competent and qualified attorney would handle a case is the crux of Bua v Purcell & Ingrao, P.C. 2012 NY Slip Op 06908  Appellate Division, Second Department . At issue is whether attorney committed malpractice in the termination of a real estate contract of sale.

"The plaintiff commenced this action to recover damages allegedly sustained as a result of the defendants’ legal malpractice. The amended complaint alleged that the plaintiff retained the defendants to represent and advise him in connection with the sale of certain real property. The plaintiff entered into a contract of sale with a buyer, who tendered a deposit to be held in escrow. The amended complaint further alleged that, prior to the closing date, the buyer’s attorney attempted to terminate the contract of sale because the buyer was unable to obtain financing for the purchase. The defendant Joseph A. Ingrao informed the plaintiff that the buyer wished to cancel the contract of sale, and the plaintiff agreed to cancel the contract and return the deposit.

The amended complaint stated that Ingrao sent the buyer’s attorney a letter "purporting to terminate" the contract of sale and returning the deposit. More than seven months later, however, the buyer attempted to revive the contract of sale and purchase the property under its terms. The plaintiff refused, maintaining that the contract had been terminated. The buyer subsequently commenced an action against the plaintiff for specific performance of the contract of sale and filed a notice of pendency. In that action, the plaintiff argued, inter alia, that the contract of sale, had been terminated when the deposit was returned. The plaintiff also commenced a holdover proceeding. The plaintiff ultimately prevailed in the specific performance action.

The amended complaint asserted that the defendants committed malpractice by failing to "obtain a clear and unambiguous termination of the [contract of sale] after [the buyer’s] attorneys advised Ingrao that she wished to terminate the [contract of sale]." The amended complaint listed various things that the plaintiff claimed the defendants "should have done" in order to accomplish [*2]a "clear and unambiguous" termination of the contract of sale. "

"The standard to which the defendant’s conduct is to be compared is not that of the most highly skilled attorney, nor is it that of the average member of the legal profession, but that of an attorney who is competent and qualified (see Restatement [Second] of Torts: Negligence § 299A, Comment e). The conduct of legal matters routinely "involve[ ] questions of judgment and discretion as to which even the most distinguished members of the profession may differ" (Byrnes v Palmer, 18 App Div 1, 4, affd 160 NY 699). Absent an express agreement, an attorney is not a guarantor of a particular result (see Byrnes v Palmer, 18 App Div at 4; see also 1B NY PJI3d 2:152, at 140-141 [2012]), and may not be held "liable in negligence for . . . the exercise of appropriate judgment that leads to an unsuccessful result" (Rubinberg v Walker, 252 AD2d 466, 467; see Grago v Robertson, 49 AD2d 645, 646; see also PJI 2:152).

It follows that "[the] selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738; see Dimond v Kazmierczuk & McGrath, 15 AD3d 526, 527). Attorneys are free to act in a manner that is "reasonable and consistent with the law as it existed at the time of representation," without exposing themselves to liability for malpractice (Darby & Darby v VSI Intl., 95 NY2d 308, 315; see Noone v Stieglitz, 59 AD3d 505, 507; Iocovello v Weingrad & Weingrad, 4 AD3d 208, 208). "

"In conclusion, as the plaintiff effectively concedes, he is estopped from denying that the defendants effected a legally valid termination of the contract of sale. To the extent that the allegations in the amended complaint are not barred by the doctrine of judicial estoppel, they fail to state a cause of action to recover damages for legal malpractice. Accordingly, the defendants’ motion to dismiss the amended complaint was properly granted and the plaintiff’s cross motion was properly denied as academic."

We’ve read and re-read the decision in Risk Control Assoc. Ins. Group v Maloof, Lebowitz, Connahan & Oleske, P.C.   2014 NY Slip Op 00419   Decided on January 23, 2014  Appellate Division, First Department  and we still cannot see how plaintiff thought it could proceed.  It was not the insurance company which hired defense attorneys, nor a re-insurer who became liable after the underlying case ended; it was not even the defendant itself.  In this case the "claims administrator" for the insurer sued.  Why?
 

"Plaintiff, a claims administrator for an insurer, commenced this action alleging legal malpractice against defendants, who were retained to represent the insurer in a personal injury action. Acknowledging that it is not in privity with defendants, plaintiff contends that it may bring the cause of action by virtue of its relationship of near privity with them (see Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59, 60-61 [1st Dept 2007]). However, plaintiff does not allege that it had a contractual obligation to pay for the loss in the personal injury action (compare Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172 [1st Dept 2004] [excess insurer alleged relationship of near privity with counsel hired by primary carrier to represent defendant in underlying action]). Nor does it allege that it sustained actual damages because of this obligation (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Similarly, plaintiff’s factual allegations do not suffice to state an equitable subrogation cause of action against defendants (see Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581 [1995]). "

Judge Lippman once wrote that allowing legal malpractice proceedings against the criminal defense attorney absent "actual innocence" would be very very bad.   "We see no compelling reason to depart from the established rule limiting recovery [*4]in legal malpractice actions to pecuniary damages. Allowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions. "

Here, in Herschman v Kern, Augustine, Conroy & Schoppman  2014 NY Slip Op 00416
Decided on January 23, 2014  Appellate Division, First Department we see one result.  Plaintiff was arrested and later convicted for medicare violations.  His claim against the attorney was that they negligently advised him such that he was arrested.  His claim fails.
 

In this legal malpractice action, plaintiff, a physician, alleges that defendants failed, inter alia, to represent him properly in connection with investigations by Medicare and the Office of Professional Conduct into the licensure of his employee, Jerrold Levoritz, and his billing practices, and that these failures resulted in his arrest for grand larceny and insurance fraud.

The documentary evidence submitted by defendants on their CPLR 3211 motion refutes plaintiff’s allegations, by showing that any purported negligence on their part in connection with the administrative proceedings or any advice with respect to plaintiff’s method of billing Medicare for Levoritz’s services did not proximately cause plaintiff’s arrest. The indictment for grand larceny in the second degree charged that plaintiff billed for services that were not rendered, and the record of his criminal conviction for grand larceny plainly contradicts the allegations in the complaint (see Bishop v Maurer, 33 AD3d 497 [1st Dept 2006], affd 9 NY3d 910 [2007]). Since plaintiff’s own actions resulted in his arrest, he failed to show that any alleged malpractice on defendants’ part proximately caused his damages, i.e., his arrest (see Minkow v Sanders, 82 AD3d 597 [1st Dept 2011]). This failure mandates the dismissal of his legal malpractice action regardless of whether defendants were negligent (Leder v Spiegel, 31 AD3d 266, 267-268 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]). "

Today’sNYLJ article by Andrew Keshner gives the background to a very high level spat between marquee named attorneys Ire Lee Sorkin, Judd Bernstein and Raoul Felder.  Was it deceit, or was it just good old bare-knuckled lawyering?

"In two separate rulings, one state and one federal judge declined to punish high-profile attorney Ira Lee Sorkin for his advocacy in a now-dismissed civil racketeering case.

Though Eastern District Judge Arthur Spatt disqualified Sorkin, of Lowenstein Sandler, and later tossed the suit, he stopped short on Jan. 10 of sanctioning Sorkin and plaintiff Annette Lorber, finding their decision to bring the case was not "wholly unreasonable."

A day earlier, Nassau County Supreme Court Justice Jerome Murphy dismissed a related action that alleged Sorkin told "outright lies" about how he came to possess a document subject to the work product privilege between an adversary and the adversary’s attorney.

"Was Sorkin’s defense of a claim that he had utilized a document shielded by the attorney work product deceit or collusion within the intent of [Judiciary Law] §487? The Court believes not," Murphy wrote in Winston v. Sorkin, 8227-13.

Both rulings mark the latest round for a legal brawl touched off by a July 2012 suit that Lorber brought against her estranged son-in-law, real estate developer Jonathan Winston and others. With the suit dismissed on procedural grounds, Winston countered with a challenge to Sorkin’s conduct related to possession of the privileged document and his decision to file the suit for Lorber in the first place.

Winston filed an August 2012 motion saying Sorkin’s previous representation of Winston disqualified him from representing Lorber. Two months later, he filed a motion to dismiss or at least disqualify Sorkin, saying the attorney came to possess a document he was not authorized to have.

The document was an incomplete memorandum from Winston’s former attorneys to end his probation that was never submitted in the criminal case. Explanations of its contents are either redacted or go without elaboration in court papers.

The original complaint had a single reference to the memo, saying, it "contains false and misleading information, including much of the same false and misleading information alleged herein." The reference was omitted in the amended complaint.

Winston said, to the best of his recollection, he only shared the document with Eve, when their marriage was still strong.

At a conference in front of Spatt, Sorkin said the document "was given to a third party. That third party passed it on to another party and that party gave the document to me in the presence of the first third party."

In a subsequent affidavit, Sorkin said he got a copy of the document by email from the offices of Raoul Felder, who had previously represented Eve in the divorce. In his affidavit, Sorkin said neither Felder nor an associate told him the document was privileged, adding that Felder told him either Eve or her mother gave Felder the document.

Felder said in an affidavit he did not remember the circumstances surrounding receipt of the document, and Eve did not remember ever seeing the document.

In any event, in November 2012, Spatt, sitting in Central Islip, said Sorkin’s previous representation made "trial taint" a "clear" possibility. The judge said Sorkin offered "varying accounts" of how he got the document, which was shielded by the work-product privilege. Spatt said use of the document was an "additional" ground to support Sorkin’s disqualification (NYLJ, Nov. 27, 2012).

In July 2013, Spatt dismissed Lorber’s civil racketeering claim as time barred and refused to rule on Lorber’s remaining state law claims.

Within a month of dismissal, Winston asked Spatt to impose sanctions against Sorkin and Lorber for pressing a suit that, he said, was false and they knew, or should have known, was false.

Moreover, he sued Sorkin in Nassau County Supreme Court under Judiciary Law §487, arguing that Sorkin "engaged in deceit with intent to deceive the Court," when he explained how he obtained the draft (NYLJ, July 10, 2013). Sorkin countered he was not deceitful as a matter of law.

The Judiciary Law case is Winston v. Sorkin, Supreme Court, Nassau County.

Clients think about suing their attorney; they think long and hard.  Sometimes, they get distracted, and time passes.  Sometimes too much consideration leads to too much delay. As an example, in this case Plaintiff’s mother brought a personal injury case against the City of New York for plaintiff from an injury of December 20, 2002. She retained defendant attorneys to represent her. She discharged the attorneys via a "Consent to Change Attorneys" in August , 2006. She brought the legal malpractice case Fleyshman v Suckle & Schlesinger, PLLC ; 2012 NY Slip Op 00176 ; Appellate Division, Second Department. This case was dismissed on the statute of limitations.

"The Supreme Court erred in denying that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the first cause of action, alleging legal malpractice, as time-barred. The defendants sustained their initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in May 2010 (see CPLR 214[6]; Rupolo v Fish, 87 AD3d 684, 685; Krichmar v Scher, 82 AD3d 1164, 1165). In response, the plaintiff failed to raise a question of fact as to whether the statute of limitations was [*2]tolled by the doctrine of continuous representation. All of the documentary evidence demonstrated that the relationship necessary to invoke the continuous representation doctrine terminated in August 2006, and the plaintiff’s submissions did not indicate that her trust and confidence in the defendants continued, or was restored, after that date (see Rupolo v Fish, 87 AD3d 684; Krichmar v Scher, 82 AD3d at 1165; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488; Piliero v Adler & Stavros, 282 AD2d 511, 512; Aaron v Roemer, Wallens & Mineaux, 272 AD2d 752, 754-755).

Moreover, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged a violation of Judiciary Law § 487. Even as amplified by the plaintiff’s affidavit, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted "with intent to deceive the court or any party" (Judiciary Law § 487[1]; see Jaroslawicz v Cohen, 12 AD3d 160, 160-161). Further, the plaintiff’s allegation that the defendants "willfully delayed [her] recovery with a view to their own ends and benefit" is a bare legal conclusion, "which is not entitled to the presumption of truth normally afforded to the allegations of a complaint" (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969; see Judiciary Law § 487[2]). "
 

In the past several years we’ve been given unprecedented access to court records. No more is it necessary to travel to the courthouse to review a file, nor must we wait for the clerk to mail (or not mail) a decision. The Court’s online presence has rapidly increased.   However, access to written decisions is not universal. in Bullfrog, LLC v Nolan ; 2013 NY Slip Op 00168; Appellate Division, Second Department  we are able to read the AD decision, but the Supreme Court decision is not on-line. While we can look and see the date it was decided, and the type of motion which was decided, no scan of the decision is available, so we cannot say what the Supreme Court judge saw that the Appellate Division differed with.

"An action to recover damages for legal malpractice must be commenced within three years after the accrual of the cause of action (see CPLR 214[6]). Here, the defendant Kevin Barry (hereinafter the appellant) sustained his initial burden on that branch of his motion which was to dismiss the cause of action to recover damages for legal malpractice by demonstrating that the applicable limitations period had expired with respect to the alleged acts of legal malpractice. Contrary to the Supreme Court’s determination, the evidence submitted by the plaintiff in opposition was insufficient to raise a triable issue of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations (see Hasty Hills Stables, Inc. v Dorfman, Lynch, Knoebel & Conway, LLP, 52 AD3d 566, 567-568; Melendez v Bernstein, 29 AD3d 872, 873; Dignelli v Berman, 293 AD2d 565, 566; Muller v Sturman, 79 AD2d 482, 486-487). Accordingly, the cause of action to recover damages for legal malpractice should have been dismissed as time-barred. [*2]

The appellant was also entitled to summary judgment dismissing the plaintiff’s cause of action for replevin insofar as asserted against him. The appellant established, prima facie, that he did not unreasonably refuse to return the documents requested by the plaintiff (see Khoury v Khoury, 78 AD3d 903, 904; Wiel v Curtis, Mallet-Prevost, Colt & Mosle, 66 Misc 2d 466, 469, affd 36 AD2d 1027, affd 30 NY2d 500). In opposition to the motion, the plaintiff failed to raise a triable issue of fact. The Supreme Court, therefore, should have granted that branch of the appellant’s motion which was for summary judgment dismissing the cause of action for replevin insofar as asserted against him. "