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. "
 

Our meme is that legal malpractice is ubiquitous and may arise in almost any setting. Here, in a medical malpractice case we see what could have been a nasty legal malpractice had the AD no intervened. In Westchester, cases go the the Trial Assignment Part which has broad discretion in the scheduling of trials. There is great tension in the scheduling of trials. On the one hand, attorneys need to fully book their time in order to make a living. On the other hand, there are at least two and often more law firms all booking cases (plaintiff and defense) and trying to make a living. In order to try a case, one needs witnesses, and experts each have their own schedules, with vacations and professional responsibilities and other trials. Its a challenge to get a case tried. Cases get dismissed when the process gets too hard, and parties are injured. Legal mal often follows.

In Vera v Soohoo 2012 NY Slip Op 07104 ; Appellate Division, Second Department we see how one effort came apart.

"On January 4, 2010, David Pierguidi of The Pagan Law Firm, P.C., appeared on behalf of the plaintiff, and notified the Supreme Court that the plaintiff’s expert, who was of paramount importance to the plaintiff’s case, was unavailable to testify. Counsel provided the Supreme Court with an affidavit from the expert, in which he stated that he would be away on vacation from January 5 through January 13, and that the vacation could not be canceled. Counsel informed the Supreme Court that the parties had conferred and would all be available to try the case in the middle of February. The Supreme Court, after noting that the case was eight years old, offered to adjourn the matter until January 14. Counsel for Malhotra inquired as to how long the plaintiff’s case would last, noting that he had a case on January 25, in Rockland County, and a case in federal court scheduled for February 1. The plaintiff’s counsel responded that his case alone would take three days to try, and alerted the court that his firm had a conflict with another case that was being tried in Kings County. In response, the Supreme Court directed the law clerk to read the procedural history of the case into the record. While she was still doing so, the Supreme Court cut her off, stating, "that’s enough." Then, without further comment or questions about plaintiff’s counsel’s claimed scheduling conflict, the Supreme Court, sua sponte, dismissed the action pursuant to 22 NYCRR 202.27, stating "this is a fault [sic] dismissal." The court subsequently issued a written order indicating that the action was being dismissed for counsel’s failure to proceed to trial on January 4, 2010.

The plaintiff timely moved to vacate the order and restore the action to the action to the trial calendar. In the moving papers, the plaintiff’s counsel affirmed that the trial date offered by the Supreme Court, January 14, 2010, conflicted with a case entitled Bryan v Hurwitz that his firm was scheduled to try on January 19, 2010, and that Bryan v Hurwitz had a 1999 index number. In an order dated June 4, 2010, the Supreme Court denied the plaintiff’s motion, finding that, while she had a potentially meritorious cause of action, she had failed to provide a reasonable excuse for her inability to proceed on January 4, 2010, or January 14, 2010.

Under 22 NYCRR 202.27, a court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar (see Fink v Antell, 19 AD3d 215; Johnson v Brooklyn Hosp. Ctr., 295 AD2d 567, 569; Farley v Danaher Corp., 295 AD2d 559, 560). In order to be relieved of that default, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see e.g. Felsen v Stop & Shop Supermarket Co., LLC, 83 AD3d 656).

Here, the plaintiff’s proffered reason for being unable to proceed on January 4, 2010, was that her expert was unavailable to testify because of a scheduled vacation between January 5 and January 13, 2010, which the expert could not cancel. That excuse was a reasonable one (see Vorontsova v Priolo, 61 AD3d 556, 556-557; Conde v Williams, 6 AD3d 569, 570; Goichberg v Sotudeh, 187 AD2d 700, 701; cf. Kandel v Hoffman, 309 AD2d 904; Spodek v Lasser Stables, 89 AD2d 892). Indeed, the Supreme Court accepted that excuse, as evidenced by its offer during the colloquy on January 4 to adjourn the trial to January 14. In addition, in its order denying the plaintiff’s motion to vacate the default, the Supreme Court stated that it had been willing to adjourn the trial to accommodate the expert’s vacation, tacitly acknowledging that it had concluded that the excuse was reasonable. Nevertheless, it held in that order that the plaintiff’s action should be dismissed, in part, because the record was silent as to when the plaintiff’s counsel informed his expert of the trial date, when the expert scheduled his vacation, and when counsel learned of the expert’s vacation schedule. However, that claimed justification for dismissing the plaintiff’s action, which is adopted by the dissent, is not supported by the record since the Supreme Court never mentioned any of those enumerated deficiencies during the colloquy on January 4, 2010.
Even accepting the post hoc conclusion that the action was validly dismissed for the failure to proceed on January 14, a reasonable excuse for that failure was provided. The plaintiff’s counsel explained that his firm had another trial involving a medical malpractice claim scheduled in Kings County for January 19, 2010, that the case had been marked as final, and that it was older than this case. The plaintiff’s counsel noted that, in the instant action, the presentation of his case alone would take three days, and, thus, depending on the length of the case presented by the Hospital and Malhotra, there was the potential for a conflict between the Kings County case and this case. Thus, it is evident from the record that counsel was trying to avoid the "overbooking of cases" (Pichardo-Garcia v Josephine’s Spa Corp., 91 AD3d 413, 414 [internal quotation marks omitted]; see Perez v New York City Hous. Auth., 47 AD3d 505, 505). While we agree with the dissent that there was no actual conflict on January 14, the point is that there was the potential for conflict on January 19 when the two trials might overlap, and the plaintiff’s counsel was attempting to avoid creating a conflict for his firm. Moreover, contrary to our dissenting colleague’s assertion, counsel indicated that The Pagan Law Firm, P.C., consisted of only three lawyers, and that William Pagan was the only attorney from the firm qualified to try medical malpractice cases. The dissent characterizes this contention as "unsubstantiated and self-serving after-the-fact," since it was not made until counsel for the plaintiff submitted reply papers on the motion to vacate. However, this contention was made in response to arguments advanced by the Hospital and Malhotra, which is the proper function of reply papers (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678; Lebar Constr. Corp. v HRH Constr. Corp., 292 AD2d 506, 507). Therefore, under the circumstances of this case, we conclude that the plaintiff provided a reasonable excuse for the inability to proceed on January 4, 2010, and January 14, 2010 (see Mayo v New York Tel. Co., 175 AD2d 390, 391; see also Krivda v Liberty Lines Express, Inc., 27 AD3d 260, 261; cf. McKenna v Connors, 36 AD3d 1062, 1063)."
 

QBE Ins. Corp. v Lebowitz  2013 NY Slip Op 31752(U)  July 11, 2013  Supreme Court, New York County   Docket Number: 600412/10 Judge: Milton A. Tingling leads one to the question, How could this happen?  Law firm defends insurance company, and routine discovery demands are served.  Routine discovery demands are ignored.  Not until after the date for responses does the law firm even ask its client for the materials.  Numerous adjourned dates go by and the material is not provided.  Summary judgment ensues.  Appeal is taken. Appeal is lost. 

Insurance company sues its attorney, and the attorney brings in the claims service which was taking care of the insurance company’s files and documents.  Claims service company tries to get out of the case.  Here, from the decision:

"All of the files handled by CSB for QBE were transferred to Rockville Risk Management Associates in early November 2006. These included the files for the AWL Industries action. Another status Conference in the AWL Industries action was held on November 8, 2006 and the court extended QBE’s time to comply with the court’s October 16,2006 order to December 8, 2006 (id. at 18-1 9). On December 19,2006 another compliance conference was held where the court entered a status order stating that the note of issue was ready to be filed. Plaintiffs in the A WL Industries action filed note of issue on or about December 2 1, 2006. On February 20, 2007, the plaintiffs in the underlying AWL Industries action filed a motion for summary  judgment and to strike QBE’s answer for failure to provide discovery (id. at 77 20-21). On February 2 1, 2007, Rockville informed Maloof Lebowitz that Newman Myers would substitute in as counsel for QBE. Ultimately, Judge Tingling issued and order on October 17,2007 that granted summary judgment to AWL Industries (id. at 77 21-22). On March 24, 2008, on behalf of QBE, Newman Myers served a motion for leave to renew the motion or summary judgment. On December 22,2008, the court issued an order denying the motion to renew. An appeal of these orders was taken and an appellate brief was filed on February 5,2009. On September 15, 2009, the Appellate Division, First Department affirmed the trial court’s orders granting summary judgment (id. at 18 23-25). QBE claims that as a result of the First Department’s decision it was forced to settle the coverage action an tender the full amount of the policy, $1 million, as well as AWL Plaintiffs legal fees and costs. In addition, QBE alleges that Maloof Lebowitz engaged in legal malpractice in its representation of QBE in the AWL Industries action because their answer was stricken as a result of Maloof Lebowitz’s repeated failure to timely comply with discovery 

Once the movant has established a prima facie case that it is entitled to summary judgment, the burden then shifts to the party opposing the motion to tender sufficient evidence in admissible form to defeat the motion Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The third party plaintiffs opposition raises triable issues of fact in dispute concerning what caused the legal malpractice in the underlying action. Here, Maloof Lebowitz claims that CSB failed to provide them with a written statement from an employee, Frank Allecia in the underlying AWL Industries action, which they received in March of 2006. Maloof Lebowitz relied on CSB to relay its claims administrations and investigation to them on numerous occasions to no avail. In addition, CSB failed to provide Maloof with discovery assistance before the final discovery deadline became effective and before they were relieved of their third party administrator duties. Accordingly summary judgment does not lie. Therefore the third party defendant’s motion for summary judgment is denied."
 

Bedsores are a cardinal mark of neglect in hospital care.  They need never occur, and once they are created, should/could/must be treated so that they go away.  The decedent in this legal malpractice case was treated horribly.  The survivors then hired an attorney who let the case go, and himself was disbarred upon a guilty plea to a felony.  Result?  Not good.

In Corsiatto v Maddalone  2013 NY Slip Op 30553(U)  March 13, 2013  Supreme Court, Suffolk County  Docket Number: 2009-14305  Judge: John J.J. Jones Jr   we see:"’I‘he legal malpractice action was commenced on April 14, 2009. The underlying claim was for medical malpractice, neglect and mistreatment of Veronica Pecoraro, the plaintiffs mother, [“the decedent”], while the decedent was a patient at United Presbyterian Residence [“UPR’]. The decedent was admitted to UPR in August of 1994. She presented with a history of having suffered a stroke and congestive heart failure, was oxygen dependent and diabetic. Upon admission to UPR she had a Stage 1-11 pressure ulcer in the sacral area in the beginning stages, also referred to as a bedsore or decubitus ulcer."

"This action for legal malpractice was commenced on April 14,2009. On this inquest the plaintiff” seeks $1,000,000 in compensatory damages, $1,000,000 in punitive damages, and interest on the award from the date of the legal malpractice. In support of the application the. plaintiff submitted, inter alia, the affidavit of Paul Knieste, R.N., dated October 16,20 12 [“the Knieste affidavit”] to express an expert opinion based on the decedent’s medical records regarding her care and management while at UPR. The Knieste affidavit does not include Knies te’s educational background or a description of credentials qualifying Knieste as an expert on wound care."
 

"This action for legal malpractice was commenced on April 14,2009. On this inquest the plaintiff” seeks $1,000,000 in compensatory damages, $1,000,000 in punitive damages, and interest on the award from the date of the legal malpractice. In support of the application the. plaintiff submitted, inter alia, the affidavit of Paul Knieste, R.N., dated October 16,20 12 [“the Knieste affidavit”] to express an expert opinion based on the decedent’s medical records regarding her care and management while at UPR. The Knieste affidavit does not include Knies te’s educational background or a description of credentials qualifying Knieste as an expert on wound care."

"Informed by the foregoing, and in light of the evidence adduced by the plaintiff‘ demonstrating a violation of the Public Health Law in the management of the decedent’s Stage IV bedsore for a period of one month, the court believes that $200,000 does not materially deviate from what could be considered reasonable compensation given that the decedent’s medial condition made her a high risk for decubitus ulcers, that on admission to UPR she presented with a Stage 1-11 pressure sore, and that the proof pointed out UPR’s failures to properly manage the bedsore that occurred in the approximately four weeks that preceded her death."

Attorney sues Client for legal fees.  Opening a legal malpractice blog with that sentence is akin to starting a novel with "it was a dark and stormy night…"  So much of legal malpractice litigation arises after a fee dispute that "Fee dispute-legal malpractice" is a google search term.  Here, in Brill & Meisel v Brown  2014 NY Slip Op 00180  Decided on January 14, 2014  Appellate Division, First Department  the Appellate Division states some bedrock rules. 
 

1.  Whether the time to file a summary judgment motion has passed, a cross-motion for summary judgment which seeks dismissal of the same claims is properly considered. 

2.  It is error to refer a summary judgment case to a referee to determine factual matters, when the MSJ itself debates whether there are questions of fact to be determined.

3.  Timely objection to a bill will defeat an account stated defense, but general objections may not be sufficient.

4. Misconduct that occurs before an attorney’s discharge but discovered after the discharge may serve for fee forfeiture. 

"The motion court correctly found that issues of fact exist as to whether defendants sustained damages in connection with their malpractice counterclaim and whether plaintiff proximately caused those damages. In particular, the motion court correctly held that issues of fact exist as to whether defendants incurred unnecessary, as yet unreimbursed, attorneys’ fees when plaintiff continued to pursue allegedly futile contempt proceedings in a Housing Court action even after Housing Court made clear it could not afford defendants any relief. Further, plaintiff failed to eliminate any triable issues of fact as to whether its conduct in signing a confidentiality agreement was the proximate cause of defendants’ damages, as defendants allegedly incurred additional fees in procuring another inspection and report not covered by the agreement, and in attempting to overturn the agreement.

The motion court correctly ruled that any damages stemming from disclosure of defendant Altman’s litigation outline are too speculative to support defendants’ malpractice counterclaim (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [1st Dept 2002]). Among other things, it is too speculative to conclude that cross-examination at Altman’s deposition would have been shorter, and thus legal fees lower, but for disclosure of the outlines.

The motion court, however, erred in denying defendants’ cross motion to strike plaintiff’s references to a "Damages Analysis" as proof of the value of defendants’ damages. The document was created for settlement purposes in a Supreme Court action against the cooperative corporation of defendants’ building. Such documents "are inadmissible to prove either liability or the value of the claims" (CIGNA Corp. v Lincoln Natl. Corp., 6 AD3d 298, 299 [1st Dept 2004]; see also CPLR 4547).

As issues of fact remain regarding whether defendant was discharged for cause, summary judgment is not warranted on plaintiff’s account stated claim (see EMC Iron Works v Regal Constr. Corp., 7 AD3d 366, 367 [1st Dept 2004]). Defendants’ timely written objections to plaintiff’s final invoice, dated July 2, 2008, for work performed in the Supreme Court action also creates triable issues of fact as to plaintiff’s account stated claim (id.). Defendants’ general objections, however, to plaintiff’s bills do not suffice to challenge the remainder of the amount owed (see Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500, 501 [1st Dept 2011], lv denied 17 NY3d 702 [2011]).
Given the numerous triable issues of fact regarding plaintiff’s representation, triable [*3]issues of fact exist regarding plaintiff’s performance of the retainer agreement. Accordingly, summary judgment is not warranted on plaintiff’s breach of contract claim (see Kluczka v Lecci, 63 AD3d 796, 798 [2d Dept 2009]). "

Matrimonial legal malpractice has two distinct sides.  In representing the monied spouse, it generally consists of a claim that the attorney overbilled, and churned the file.  In representing the non-monied spouse, it generally consists of a claim that the settlement was unfair, or that the attorney failed to discover a large cache of assets.

In Mayerson Stutman Abramowitz, LLP v Rosenbaum  2014 NY Slip Op 30016(U)  January 6, 2014  Supreme Court, New York County  Docket Number: 152172/2013  Judge: Eileen A. Rakower we see a more common or varietal species of fee dispute/counterclaim situation.  Here, defendant-spouse has already tried and lost a legal malpractice case, and is now defending against an account stated claim.

"This action was commenced on March 8, 2013 by plaintiff Mayerson Stutman Abramowitz, LLP ("Plaintiff’) with the filing of a Summons and Verified Complaint on March 8, 2013. The Complaint alleges claims for account stated and breach of contract against defendant Carolyn Donovan Rosenbaum ("Defendant" or "Rosenbaum").

On March 27, 2013, Defendant interposed an answer with affirmative defenses and counterclaims. The affirmative defenses asserted are: statute of limitations has expired, the services rendered by Plaintiff were "unnecessary, unwarranted, and duplicative," and the services rendered were "inadequate and improperly performed." Defendant’s first counterclaim is for breach of contract
by Plaintiff in "charging Defendant unnecessary, wasteful and duplicative legal charges and expenses in the amount of $159,536 and seeks the refund of all sums paid to Plaintiff; the second is for unjust enrichment; and the third is for misrepresentation of sums allegedly due and owing and violation of the New York Code of Professional Responsibility.

Here, Plaintiff has made a prima facie showing of entitlement to judgment as a matter of law on its account stated claim by submitting evidence of Defendant’s receipt and retention of Plaintiffs invoices without objection within a reasonable time, and partial payments made thereon. Defendant, in opposition, has failed to raise a triable issue of fact by failing to submit evidence in admissible form that Defendant made any objection upon receipt of the Plaintiffs invoices or
within a reasonable time thereafter. The discovery defendant claims is outstanding, specifically, the deposition of Abramowitz, would not be the source of such evidence. Furthermore, as for Defendant Rosenbaum’ s Counterclaims, Defendant Rosenbaum previously commenced an action on March I 0, 20 I 0 entitled "Carolyn Donovan Rosenbaum v. Sheresky Aronson Mayefsky & Sloan, LLP, Heidi E. Harris, Esq., Allan Mayesky, Esq., Mayerson Stutman Abramowitz, LLP, and
Alton L. Abramowitz, Esq.," Index No. 7341-2010, which asserted claims for legal malpractice arising from the Mayerson law firm’s negotiation of her Separation Agreement, breach of contract based on allegations of overcharging of Plaintiff by the Mayerson law firm, and unjust enrichment. On August 17, 20 I 0, Justice Mary H. Smith dismissed the legal malpractice claim on the basis that the Mayerson law firm demonstrated that the parties’ legal relationship had ceased nineteen months before the purported Settlement Agreement had been reached. The Court further dismissed Rosenbaum’s breach of contract claim as duplicative of her legal malpractice and excessive fee claims and Rosenbaum’s unjust enrichment claim in light of the existence of a written retainer agreement. The Court permitted Rosenbaum to re-file her fee dispute claim with the Joint Committee on Fee Dispute and Conciliation. On March 3, 2011, Defendant filed an appeal with the Appellate Division, Second Department, asserting that the lower court erred in dismissing the action against the Mayerson law firm. On November 14, 2012, the Second Department affirmed the decision of the trial court. On November 28,2012, the Mayerson law firm attempted to restore the Fee Arbitration but was unable to do so and commenced the instant action. "

The beginning and end of an attorney-client relationship have some formal aspects to them.  They are guided and controlled by CPLR 321.  The end of the attorney-client relationship has a direct link to the question of commencement of the statute of limitations.  Defendant attorneys in legal malpractice cases often point to harsh communications which precede the actual end of the attorney-client relationship, and argue that it ended well before a consent to change attorney was filed.

Here, in  Louzoun v Kroll Moss & Kroll, LLP   2014 NY Slip Op 00096   Decided on January 8, 2014  Appellate Division, Second Department   we see how this argument fares.  "In support of their motion, the defendants proffered an email message from the plaintiff dated August 7, 2008, in which the plaintiff expressed dissatisfaction with KMK, accused KMK of having committed malpractice, disputed fees, and demanded her legal file. The defendants argued that the August 7, 2008, email message ended the trust and confidence required of a continuing attorney-client relationship, rendering the action commenced on August 9, 2011, untimely. In opposition, the plaintiff argued that her action was timely commenced, as the defendants’ representation of her continued until August 19, 2008, the date on which she executed a formal Consent to Change Attorney. The Supreme Court denied the defendants’ motion.

To dismiss a complaint pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the defendant bears the burden of establishing, prima facie, that the time in which to sue had expired prior to the commencement of the action (see Singh v Edelstein, 103 AD3d 873; DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812). The statute of limitations for legal malpractice is three years measured from the date of the alleged malpractice (see CPLR 214[6]; [*2]McCoy v Feinman, 99 NY2d 295, 301; Shumsky v Eisenstein, 96 NY2d 164, 166; Singh v Edelstein, 103 AD3d at 873), but may be tolled by operation of the continuous representation doctrine (see Zorn v Gilbert, 8 NY3d 933, 934; Shumsky v Eisenstein, 96 NY2d at 167). Documentary evidence may entitle a defendant to the dismissal of a complaint pursuant to CPLR 3211 (a)(1), but only where such evidence "conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88).

Here, the plaintiff’s email message dated August 7, 2008, does not conclusively contradict the allegation, set forth in paragraph 103 of her complaint, that the defendants were not discharged as her counsel until August 19, 2008. The email message makes demands and accusations but does not necessarily or unequivocally terminate the parties’ attorney-client relationship. The email message states, inter alia, that, "without the judgment being signed, I have no money with which to pay," which suggests the need for further legal work to be performed, and also states that since the plaintiff and counsel both attend the same synagogue, "it will be a pity to have bad blood between us." In light of those statements, and the Consent to Change Attorney that was not executed until August 19, 2008, the defendants failed to conclusively establish that the attorney-client relationship did not continue until the latter date. Accordingly, the defendants’ motion to dismiss the complaint was properly denied. "

We are not sure where the line between privacy and whistleblowing exists, nor where the balance should be.  Galloway v Wittels  2014 NY Slip Op 30006(U)  January 6, 2014 Supreme Court, New York County  Docket Number: 151287/2013  Judge: Cynthia S. Kern is an interesting example of how a person can become enmeshed in a situation much larger than himself, and be buffeted by the resulting storm.

"The relevant facts are as follows. This action centers around the fact that plaintiff, in 2009, was publicly identified as a whistleblower in a patent lawsuit between Convolve, Inc. ("Convolve") and Seagate Technology, LLC ("Seagate"). Specifically, in 2003, plaintiff was employed as an engineer at Seagate Technology, LLC ("Seagate"). At that time, plaintiff testified as a 30 (b)(6) witness for Seagate in a pending patent lawsuit commenced by Convolve against Seagate (the "CS Lawsuit"). Six years later, after being terminated by Seagate, plaintiff was contacted by Seagate’s attorney and was advised that the CS Lawsuit was likely going to trial in January 2010 and that he might be called as a trial witness on Seagate’s behalf. According to plaintiffs complaint, "[p]rompted by the call from Seagate’s attorney, [he] did some research on the ongoing lawsuit and learned that, in addition to the patent litigation, Convolve had sued Seagate for violation of a non-disclosure agreement (NOA)." Thereafter, "[a]fter reviewing the case, [plaintiff] came to the conclusion that Seagate·:had violated the NOA." (Emphasis in original). Apparently, disturbed by the realization that the work he had done at Seagate had violated the NOA, plaintiff sent an email to Convolve asking that its legal department contact him.

Plaintiff alleges that in response to this email, he was contacted by one or more attorneys from defendant Cadwalader Wickersham & Taftt, LLP ("Cadwalader"), who represented Convolve in the CS Litigation. Specifically, plaintiff alleges that defendant Debra Brown Steinberg ("Steinberg") was on the initial call with him. During the call, Cadwalder’s attorneys ‘ allegedly asked if plaintiff was represented by counsel and after he told them he might still be represented by Seagate’s attorney, the call ended. Thereafter, plaintiff alleges that he was contacted by Neil Singer, CEO of Convolve who recommended that plaintiff contact Wittels, an attorney formerly employed by Sanford Heisler’s predecessor firm, Sanford Wittels & Heisler, LLP, at the time of the acts complained of herein, regarding plaintiffs termination of his employment from Seagate."

"Plaintiff now brings the instant action alleging that as a direct result of the defendants’ misconduct in regards to allowing him to be publicly identified as a whistleblower he has been unable to find suitable employment in his field. Specifically, in his amended complaint, plaintiff asserts two causes of action against Wittels and Sanford Heisler, as successor in interest to Wittels former employer at the time the acts complained of herein occurred, for malpractice and breach of fiduciary duty. Wittels and Sanford Heisler now move for an order dismissing the two claims."

"In the present case, plaintiffs claim for malpractice must be dismissed as against the moving defendants as the allegations in the amended complaint, taken as true and given the benefit of every possible inference, fail to demonstrate that but for Wittels’ alleged negligence plaintiff would not have been publicly named as a whistleblower and he would have found suitable employment. Moreover, plaintiff fails to plead actual and ascertainable damages that resulted from Wittels’ alleged negligence."