In this legal malpractice case, defendant made motions in a seemingly out-of-order fashion, yet succeeded even though. Here is the AD discussing a novel method of moving to dismiss in Shirzadnia v Lecci 2012 NY Slip Op 09043 Appellate Division, Second Department:
 

"The plaintiff commenced the instant action by the filing of a summons and complaint on December 28, 2004. By notice of motion dated February 15, 2005, the defendant moved for an order, inter alia, "pursuant to CPLR 3211 and 3212 dismissing the complaint upon the ground that there is documentary evidence which precludes plaintiff’s complaint." In an order dated June 15, 2005, the Supreme Court denied that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211, without addressing that branch of the motion which was for summary judgment. Following discovery, the defendant, by notice of motion dated June 9, 2011, moved for an order "pursuant to CPLR Rule 3211(a)(1) through (7) and 3212 dismissing the action." The Supreme Court granted that branch of the defendant’s motion which was pursuant to CPLR 3212 for summary judgment dismissing the complaint.

The plaintiff’s sole argument on appeal is that the Supreme Court should have denied the defendant’s motion as either an untimely motion for leave to reargue, or an improper successive motion for summary judgment. However, since the defendant’s 2005 motion was made prior to the service of an answer, and the 2011 motion was made following the completion of discovery, the record supports the Supreme Court’s determination that the 2005 motion was not properly characterized as one for summary judgment, and that, accordingly, the 2011 motion did not violate the rule against successive motions for summary judgment (see Sutter v Wakefern Food Corp., 69 AD3d 844, 845; see also Kimber Mfg., Inc. v Hanzus, 56 AD3d 615, 616; Williams v City of White Plains, 6 AD3d 609). For similar reasons, the defendant’s 2011 motion was not an untimely motion for leave to reargue. "
 

It’s called lateral movement. The New York Law Journal is constantly talking about how mid-level laterals are being sought, or how they are finding difficulty in moving from one firm to another.  Attorneys are constantly in motion, moving from one firm to another.  Because movement is usually a business decision attorneys take care to bring cases and client with them.How does this affect the statute of limitations in legal malpractice, and can the predecessor law firm ever be responsible for later malpractice>

Some cases hold that the former law firm remains on the hook even though the attorney left. Rosenbaum v Sheresky Aronson Mayefsky & Sloan, LLP 2012 NY Slip Op 07651 Decided on November 14, 2012 Appellate Division, Second Department does not. While in the past, the Appellate Division has written: "The statute of limitations was tolled as to defendant because the attorneys who initially handled the matter continued to represent plaintiffs in the matter, albeit at different law firms, until 2005 (see Antoniu v Ahearn, 134 AD2d 151 [1987])", here the result is different.
 

From Rosenbaum: "As alleged in the amended complaint, the plaintiff was represented by the defendant Alton L. Abramowitz and two other members of the defendant firm Sheresky, Aronson, Mayefsky & Sloan, LLP (hereinafter the Sheresky Firm), beginning in February 2006. When Abramowitz joined the defendant firm Mayerson, Stutman, Abramowitz, LLP (hereinafter together the Mayerson Firm defendants), in or around August 2006, he continued to represent the plaintiff pursuant to a retainer agreement with that firm, as did the Sheresky Firm. According to the allegations in the amended complaint, the Mayerson Firm defendants’ representation of the plaintiff continued until August 25, 2008, while the Sheresky Firm’s representation of the plaintiff continued until approximately February 23, 2009. "
 

"The Mayerson Firm defendants tendered evidentiary material conclusively and indisputably demonstrating that their relationship with the plaintiff ended in March 2007, which was 19 months before the separation agreement was executed. In the interim, successor counsel, the Sheresky Firm, negotiated the separation agreement, which the plaintiff executed in November 2008. Under these circumstances, the Mayerson Firm defendants could not have been a proximate cause of the allegedly "wholly inadequate" separation agreement (see Marshel v Hochberg, 37 AD3d 559; Perks v Lauto & Garabedian, 306 AD2d 261, 261-262; Albin v Pearson, 289 AD2d 272). The remaining allegations of legal malpractice against the Mayerson Firm defendants are conclusory, and the plaintiff’s affidavit failed to remedy those defects (see Hashmi v Messiha, 65 AD3d 1193, 1195; Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1022; Hart v Scott, 8 AD3d 532). Therefore, the Supreme Court properly granted that branch of the Mayerson Firm defendants’ motion which was to dismiss the cause of action alleging legal malpractice insofar as asserted against them. "

Would the words "mutual understanding" have made the difference in this case? Continuous representation by an attorney of a client requires actual work, a mutual understanding that further work has to be performed and a relationship of trust and confidence. In Landow v Snow Becker Krauss P.C. 2012 NY Slip Op 31971(U)    Supreme Court, Nassau County Docket Number: 18038/11 Judge: Denise L. Sher we see a $4 Million legal malpractice case dismissed on statute of limitations. Plaintiff argued continuous representation, and the court finally hung its decision on the following:

"For continuous representation doctrine to apply, for purposes of tolling limitations period for legal malpractice action, there must be clear indicia of an ongoing, continuous, developing and dependent relationship between client and attorney which often includes an attempt by attorney to rectify an alleged act of malpractice; its application is limited to instances in which attorney s involvement in case after alleged malpractice is for performance of the same or related services and is not merely continuation of general professional relationship (emphasis added). See Pellati v. Lite Lite 290 AD.2d 544, 736 N.Y.S.2d 419 (2d Dept. 2002). Also, referencing the language of the case cited by plaintiff Shumsky v. Eisenstein, 96 Y.2d 164, 726 N.Y.S.2d 365 (2001), under the doctrine of continuous representation, the three-year statute of limitations for legal malpractice is tolled while the attorney continues represent the client in the same matter, after the alleged malpractice is committed (emphasis added). Firer, the parries must have a "mutual understanding" that further representation is needed with respect to the matter underlying the malpractice claim. See Hasty Hills Stables, Inc. v. Dorfman, Lynch, Knoebel Conway, LLP 52 AD.3d 566 860 N.Y.S.2d 182 (2d Dept. 2008). Since the Verified Complaint in the instant matter lacks any allegation of a "mutual understanding" between plaintiff and defendants of the need for further representationn regarding the tax opinion and/or DC transaction, the continuous representation doctrine does not apply to the instant matter. In fact, the Verified Complaint and supporting affidavit are devoid of any facts that occurred between any defendant and plaintiff regarding the DC transaction and/or the tax treatment thereof between the time period of2003 (when the alleged malpractice act was committed) and 2007 when defendant Meltzer Lippe was retained. Additionally, a legal malpractice cause of action accrues on the date the malpractice was committed, not when it was discovered. See Byron Chemical Co., Inc. v. Groman 61 AD. 909, 877 N.Y.S.2d 457 (2d Dept. 2009). In other words, the statute does not run from the time plaintiff received notice from the IRS in 2007. Accordingly, the malpractice claims of all defendants are dismissed as time-bared
 

Legal malpractice is different from all other areas of litigation, as it has a fourth and unique requirement that "but for" the mistake of the attorney, there would have been a different and better result for plaintiff.  In Portilla v Law Offs. of Arcia & Flanagan   2013 NY Slip Op 08606   Decided on December 26, 2013   Appellate Division, Second Department we see that played out.  In essence, the defendant attorneys admitted suing the wrong person, but argued that it did not matter, because plaintiff could never have won,  The argument failed in Supreme Court and on Appeal.
 

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the breach of such duty was the proximate cause of the plaintiff’s damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772; Goldberg v Lenihan, 38 AD3d 598). Proximate cause is established by showing that the plaintiff would have succeeded in the underlying action or would not have incurred damages but for the attorney’s negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). Therefore, for a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements (see Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772; Goldberg v Lenihan, 38 AD3d at 598).

Here, the appellants failed to establish their prima facie entitlement to judgment as a matter of law. The appellants, who did not dispute that they were negligent in suing the wrong party, failed to establish, prima facie, that the plaintiff was unable to prove that he would have succeeded in his underlying personal injury action (see Gamer v Ross, 49 AD3d 598; J-Mar Serv. Ctr, Inc. v Mahoney, Connor & Hussey, 14 AD3d 482, 483). Accordingly, the Supreme Court properly denied the appellants’ motion for summary judgment dismissing the complaint insofar as asserted against them. "

Reading the beginning of this case immediately brought us back to a Conflicts class at law school, and that’s a very long time ago. We were to to analyze an auto accident in which plaintiff resided in state A and the accident took place in state B and the insurer was from state C…well you get the picture. Here in Cambridge Integrated Servs. Group, Inc. v Faber 2012 NY Slip Op 07880 Appellate Division, First Department a NY resident was injured in a MVA in Connecticut while employed by a NJ company who had NJ workers’ compensation.
 

"On September 14, 2000, defendant Donald Pressley, a New York City resident, was injured in a tractor-trailer accident in Connecticut during the course of his employment with nonparty Cobra Express Inc., which is located in New Jersey. Fremont Compensation Company (Fremont), the workers’ compensation carrier for Cobra Express, paid Pressley New Jersey workers’ compensation benefits, making the last payment to Pressley on May 9, 2002.

On or about September 19, 2000, Pressley retained nonparty Paul A. Shneyer, Esq., to bring a personal injury lawsuit for injuries he sustained in the accident. When Shneyer failed to timely commence an action, Pressley commenced a malpractice action against him. The Faber defendants represented Pressley in that action and settled the case against Shneyer in December 2008. On March 24, 2009, plaintiff, the administrator for Fremont (now in liquidation), commenced the instant action to enforce a lien against the settlement proceeds.

The Faber defendants maintain that under Matter of Shutter v Phillips Display Components Co. (90 NY2d 703 [1997]), New Jersey cases holding that workers’ compensation liens attach to legal malpractice recoveries (see Frazier v New Jersey Mfrs. Ins. Co., 142 NJ 590, 667 A2d 670 [1995]; Utica Mut. Ins. Co. v Maran & Maran, 142 NJ 609, 667 A2d 680 [1995]) do not apply in this case because the malpractice recovery did not duplicate the medical payments and lost wages Pressley received under workers’ compensation. This argument is unavailing. Pursuant to a June 2010 order from which the Faber defendants did not appeal, New Jersey law applies to the merits of plaintiff’s claims and thus, New York law regarding double recoveries is inapplicable. [*2]

Under New Jersey law, a double recovery "occurs when the employee keeps any workers’ compensation benefits that have been matched by recovery against the liable third person" (Frazier, 142 NJ at 602, 667 A2d at 676 [emphasis in original]), rendering irrelevant whether the settlement of the legal malpractice action included medical expenses and lost wages. We note, however, that even if New York law applied, the settlement did not specify what it was for and therefore, we cannot conclude that no part of it was for medical expenses and lost wages.

Defendants’ argument that the application of New Jersey law in this case violates New York public policy because Pressley is a New York resident fails because although defendants have shown that New York and New Jersey law differ on this issue, they have not satisfied the stringent test for rejecting New Jersey law as against New York public policy (see 19A NY Jur 2d, Conflict of Laws § 17).

Contrary to defendants’ argument, the instant action is not time-barred. As agreed to by the parties, New York’s three year statute of limitations is applicable. We agree with the motion court that plaintiff’s claim accrued when Pressley received the settlement payment from Shneyer (see Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175-176 [1986]). "
 

Husband suffers personal injury in a fall from a scaffold. He resolves the case for $1M. Even at that number, he and wife then succeed in a legal malpractice case for an additional $ 297,000. What happens then? Burnett v Burnett, 2012 NY Slip Op 08850  Appellate Division, Third Department tells the sad but familiar story of everything unraveling.
 

"The parties were married in 1974 and raised six grown children. During the course of the marriage, plaintiff (hereinafter the wife) worked within the home and defendant (hereinafter the husband) was the primary wage earner, excluding a period during the marriage — described by Supreme Court as "significant" in duration — when the husband left the wife and children dependant upon public assistance benefits and charity from her family. In 2002, in the course of his employment, the husband suffered personal injuries in a fall from a scaffold. In 2006, the parties settled their claims for personal injury and loss of consortium in the combined net sum of $1 million and deposited the funds into a joint investment account managed by their son, with the stated intention of drawing $4,000 monthly from the account for their household expenses and support. In 2007, they jointly obtained a settlement payment upon a legal malpractice action (arising from the underlying personal injury and consortium claims) in the sum of roughly $297,000. The husband deposited this check into his separate account. Thereafter, the husband engaged in extensive and habitual gambling, depleting the accounts. After learning of an adulterous affair in 2009, the wife withdrew the remaining balance of just under $140,000 from the joint investment account. The husband has never accounted for the funds from the malpractice settlement and Supreme Court found, based upon this failure and upon his "less than forthcoming testimony," that the possibility remained that he had secreted or transferred assets.

Supreme Court awarded the wife title to the marital residence, the remaining balance of [*2]the investment account, and the household furnishings and farm equipment. The husband received his checking account, plumbing business and equipment, and a motor boat and trailer. The husband appeals.

We reject the husband’s contention that Supreme Court erred in determining that the settlement funds were marital property. Although the governing statute provides that compensation for personal injury constitutes separate property (see Domestic Relations Law § 236 [B] [1] [d] [2]), here, Supreme Court noted the complete lack of any evidence upon which the funds might have been allocated as between the husband’s personal injury claim and the wife’s consortium claim, and the substantial evidence supporting the legal presumption that the parties wished to treat the proceeds as joint assets of the marriage (see Cameron v Cameron, 22 AD3d 911, 912 [2005]; Garner v Garner, 307 AD2d 510, 512 [2003], lv denied 100 NY2d 516 [2003])."

We’ve asked in the past whether there is an institutional bias against legal malpractice cases. Self-regulation of industries ( the LIBOR, for example) often lacks any rigor. The legal world also, in a way, self regulates. It is after all, rules for attorneys, written by attorneys, administered and judged by attorneys. In Wiener v Epstein 2012 NY Slip Op 22277   Appellate Term, First Department we see the Appellate Term reversing Civil Court on a summary judgment dismissal. Was Civil Court too ready to decide the underlying "but for" issues?
 

"Plaintiffs’ legal malpractice claim is not ripe for summary dismissal, since the defendant law firm failed in its burden to demonstrate the absence of a triable issue as to whether plaintiffs would have prevailed to some extent in the underlying action but for defendant’s alleged malpractice (see Cruz v Durst Law Firm, 273 AD2d 120 [2000]), i.e., failing in the underlying action to identify and timely serve a notice of claim upon the Hudson River Park Trust ("Trust"), the record owner of the bicycle path on which the first-named plaintiff was injured.

Giving plaintiffs the benefit of every favorable inference (see Ortega v Everest Realty LLC, 84 AD3d 542, 545 [2011]), the record contains circumstantial evidence sufficient to permit a fact-finder to determine that the condition which allegedly caused the first-named plaintiff to fall from his bicycle – described as a six foot by three foot patch of a "glass bead-like material used in the painting of bike ways … to provide better visibility" – was created by a contractor retained by the Trust (see Schneider v King’s Highway Hosp. Ctr., 67 NY2d 743, 744-745 [1986]; Chimilio-Ramos v Banguera, 62 AD3d 538 [2009]; Carboy v. Cauldwell-Wingate Co., Inc. 43 AD3d 261, 262-263 [2007]; Berner v 2061 A Bartow Food Corp., 279 AD2d 275 [2001]), for which the Trust may have been held vicariously liable, if properly sued in the underlying action, based upon its nondelegable duty as the owner of the public bicycle path (see Sarisohn v 341 Commack Rd., Inc., 89 AD3d 1007, 1008 [2011]; Hill v Fence Man, Inc., 78 AD3d 1002, 1004 [2010]; Correa v City of New York, 66 AD3d 573, 574-575 [2009]). Thus, the lack of prior notice to the Trust of the hazard was not dispositive of the Trust’s potential liability (see Jabbour v Finnegan’s Moving & Warehouse Corp., 299 AD2d 192 [2002]; Katz v City of [*2]New York, 231 AD2d 448 [1996]).

Defendant’s summary judgment evidence failed to conclusively establish that a contractor retained by the Trust did not cause or create the pathway condition that allegedly caused the first-named plaintiff’s injuries. The deposition testimony of the Department of Transportation ("DOT") employee (Patel) did not serve to absolve the Trust of potential liability, since Patel testified that "it is possible" that the Trust could have contracted for the repair or painting of the bike path without DOT’s knowledge.

The record so far developed raises triable issues as to whether plaintiffs would have prevailed in the underlying personal injury litigation "but for" defendant’s negligence (cf. Wo Yee Hing Realty Corp. v Stern, ___ AD3d ___, 2012 NY Slip Op 05792 [1st Dept 2012]). "
 

Defendants in this legal malpractice case argued that there was a missing party, and that the lack of privity between plaintiff and the defendant attorney was fatal.  They lost in Supreme Court, and on appeal, continued to lose.

Mr. San, LLC v Zucker & Kwestel, LLP   2013 NY Slip Op 08416   Decided on December 18, 2013  Appellate Division, Second Department  held that Justice Bucaria was correct when he denied defendant’s motion. 
 "Applying these principles, the Supreme Court properly denied those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first cause of action, which sought to recover damages for legal malpractice. While the complaint does not allege an attorney-client relationship between the plaintiffs and the defendants, it sets forth a claim which falls within "the narrow exception of fraud, collusion, malicious acts or other special circumstances" under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity (Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1112 [internal quotation marks omitted]; see Aranki v Goldman & Assoc., LLP, 34 AD3d 510, 511-512; Griffith v Medical Quadrangle, Inc., 5 AD3d 151, 152). Furthermore, the documentary evidence submitted by the defendants does not conclusively establish a defense to this cause of action as a matter of law (see CPLR 3211[a][1]).

Contrary to the defendants’ contention, the Supreme Court providently exercised its discretion in denying that branch of the defendants’ motion which was pursuant to CPLR 1001 to direct the plaintiffs to join BarCred Holdings Affiliates, LLC (hereinafter BarCred), as a party plaintiff. The defendants failed to demonstrate that BarCred needed to be joined in order to accord complete relief between the parties, or that BarCred would be inequitably affected by a judgment in this action absent its joinder (see CPLR 1001[a]; Mason Tenders Dist. Council Welfare Fund v Diamond Constr. & Maintenance, Inc., 84 AD3d 754, 755; Spector v Toys "R" Us, Inc., 12 AD3d 358, 359; O’Brien v Town of Huntington, 308 AD2d 479, 481). "