What happens when plaintiff believes that defendant made a serious mistake, and some time has passed, but the underlying case has not yet concluded?  The statute of limitations and the requirement for "ascertainable damages" come in conflict.  Wait too long and the statute will have passed.  Start too early, and one sees a result similar to Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman LLP ; 2013 NY Slip Op 06313  ; Decided on October 1, 2013 ; Appellate Division, First Department .  Case dismissed for now, but try again later.
 

"In this legal malpractice action, plaintiff alleges that defendant law firm negligently represented it in connection with underlying construction litigation by entering into a stipulation, without its authorization, pursuant to which it became obligated to defend and indemnify the owner of the subject premises in the underlying litigation without limitation. Defendant incorrectly argues that plaintiff’s claims should be dismissed as a matter of law based on the Eleventh Circuit’s vacatur of the federal district court’s finding that the stipulation requires plaintiff to defend and indemnify the premises owner without limitation and for its own negligence (see Flintlock Constr. Servs. v Well-Come Holdings, LLC, 710 F3d 1221, 1224 [11th Cir 2013]). The Eleventh Circuit vacated the decision on diversity grounds and did not reach the merits of the subject stipulation.

Contrary to defendant’s assertion, the documentary evidence does not conclusively refute plaintiff’s allegations (see Franklin v Winard, 199 AD2d 220, 220 [1st Dept 1993]), since the premises owner, its consultants and subcontractors are named in the underlying litigation, their contracts are not included in the record on appeal, and the allegations against them include the types of activities which form the basis of the underlying complaints. Nevertheless, even if the stipulation provides for an unlimited obligation, there has been no finding that the project owner was negligent. At this juncture, plaintiff’s allegations of proximate cause and damages are premature or speculative, as it is unable to prove that any such damages are directly traceable to defendant’s conduct (see InKine Pharm. Co. v Coleman, 305 AD2d 151, [*2]153-154 [1st Dept 2003]). Accordingly, we dismiss without prejudice to raising the malpractice claims upon resolution of the underlying action. "

Big corporate client goes to Big white shoe law firm and believes that the Big litigator there will take and handle the case. It does not happen. A lesser light handles the case, and the Big Corporate client is unhappy. Now what?

Matter of Matter of G.K. Las Vegas Ltd. Partnership v Boies Schiller & Flexner LLP 2012 NY Slip Op 04831 Decided on June 14, 2012 Appellate Division, First Department.
 

"In this proceeding alleging the law firm’s breach of performance of a retainer agreement, including breach of an alleged oral agreement to have a particular attorney in its firm serve as lead counsel in an underlying matter, the client failed to preserve its arguments that the law firm did not meet its burden of demonstrating that the client fully understood the terms of the parties’ retainer agreement, and that public policy rendered such retainer agreement unenforceable, as these arguments were not sufficiently brought to the attention of the arbitrator. (see Edward M. Stephens, M.D., F.A.A.P. v Prudential Ins. Co. of Am., 278 AD2d 16 [2000]; see also Matter of Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 13 NY3d 168, 173-174 [2009]). The client did not explicitly argue that the law firm violated public policy by failing to ensure that the client fully understood the terms of the parties’ retainer agreement. It only argued that parol evidence was needed because the retainer agreement, as written, was allegedly incomplete and/or ambiguous.

Were we to reach the merits of the client’s public policy argument, we would find it unavailing. The parties agreed to arbitrate any disputes arising from their retainer agreement, and there is no basis to conclude that the asserted public policy ground (requiring a client’s full knowledge and understanding of an attorney-client retainer agreement) was violated. The arbitrator’s award dismissing the client’s challenge to the legal fees that were due in accordance with the express terms of the parties’ amended written retainer agreement had a rational basis, inasmuch as the Arbitrator found the written retainer arrangement to be unambiguous and to constitute a fully integrated agreement that would satisfy the requirements of 22 NYCRR 1215.1 (see generally Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223-224 [1996]). The arbitrator’s rejection of the sophisticated client’s argument that sought inclusion of claimed oral terms that would modify the clear terms of the amended retainer agreement was rationally based in contract principles, including New York’s parol evidence rule, [*2]and the criteria for allowing modification of written terms without altering them was not established by the client (see Mitchill v Lath, 247 NY 377 [1928]; Chemical Bank v Weiss, 82 AD2d 941 [1981], appeal dismissed 54 NY2d 831 [1981]). Since the terms of the fully integrated retainer agreement were unambiguous, there was no basis to consider parol evidence (see Slotnick, Shapiro & Crocker, LLP v Stiglianese, 92 AD3d 482 [2012]; Moore v Kopel, 237 AD2d 124, 125 [1997]).

Moreover, the client’s argument that the arbitrator, in deciding the dismissal motion, denied it "fundamental fairness" by refusing to accept the truth of its allegations regarding the oral promise, including that the parties intended this oral promise to be a component of the parties’ retainer agreement, thereby precluding it from offering evidence to demonstrate the parties’ understanding in regard to the alleged oral promise, is unavailing. It was within the province of the arbitrator to find, as a matter of law, that the retainer agreement was not ambiguous (see W.W.W Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]), notwithstanding the client’s claims that alleged oral promises were intended to be added as components of the written retainer agreement. Since an arbitrator’s award ordinarily will not be vacated even if founded upon errors of law and/or fact (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479-480 [2006], cert dismissed 548 US 940 [2006]), there is no basis to vacate this award founded upon applicable contract principles (see Szabados v Pepsi Cola Bottling Co. of N.Y., 191 AD2d 367 (1998)"
 

Client is sued for trade dress infringement.  "Trade Dress" are those non-functional aspects of an otherwise patented item.  Even after the patent runs out, "trade dress", or the appearance of a thing, remains protected.

Client had insurance that may have covered the law suit in which it was a defendant.  InUtica Cutlery Co. v Hiscock & Barclay, LLP  2013 NY Slip Op 06171  Released on September 27, 2013 Appellate Division, Fourth Department  we see the 4th Department denying summary judgment to defendant on the argument that its malpractice may be "a" proximate cause of the damages, even if not "the" proximate cause of the Damages. 
 

"Defendant moved for summary judgment on the ground that plaintiff had a contractual duty and actual knowledge of the requirement to notify its insurers of the commencement of the underlying action, which superceded any alleged duty that defendant had to plaintiff. We conclude that defendant "failed to meet its burden of establishing as a matter of law that any alleged negligence on its part was not a proximate cause of plaintiff[‘s] damages" (New Kayak Pool Corp. v Kavinoky Cook LLP, 74 AD3d 1852, 1853). Notably, a plaintiff in a legal malpractice action must establish that the defendant law firm was a proximate cause of damages, but need not establish that it was the proximate cause (see Barnett v Schwartz, 47 AD3d 197, 204-205). Defendant also failed to establish that plaintiff’s conduct was an intervening and superseding cause such that defendant’s alleged negligence was not a proximate cause of any damages (cf. Alden v Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz ["The People’s Lawyer"], 91 AD3d 1311, 1311; see generally Arnav Indus., Inc. Retirement Trust v Brown, [*2]Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 304-305).

Contrary to defendant’s contention, the court properly denied its alternative request for partial summary judgment on the second and fourth affirmative defenses and dismissal of a particular claim for damages. Defendant correctly notes that the insurance policies required plaintiff to give timely notice of the underlying action and properly alleges the culpable conduct of plaintiff in failing to give notice in a timely manner to the insurance companies as an affirmative defense (see generally Arnav Indus., Inc. Retirement Trust, 96 NY2d at 305 n 2). On this record, however, defendant has not established that plaintiff was comparatively negligent as a matter of law. Plaintiff’s president explained at his deposition and in his affidavit the reason why he failed to give timely notice to the insurance companies, i.e., he did not believe that the underlying claim was covered by insurance. Whether that belief was reasonable and negated any culpable conduct on plaintiff’s part is for a jury to determine. We further conclude that defendant failed to establish as a matter of law that the insurance policies would not have covered certain damages paid by plaintiff in the underlying action. "

We wonder why Darby & Darby, P.C. v. VSI, Int;l, 95 NY2d 308 (2000) was not mentioned. The Court of Appeals wrote:  "A New York law firm retained to defend a corporate client in a Florida patent infringement litigation had no duty to advise the client about possible insurance coverage for the costs of the litigation. Defendants’ claim is based on a then novel theory that patent insurance coverage was available under an "advertising liability" clause in general liability policies, and at the time of plaintiff’s representation, neither New York nor Florida recognized the duty of an insurer to defend patent infringement claims under a general liability policy’s advertising injury clause. "

Plaintiff sues law firm, which represented his former employer after he failed to get them to file a corrected opinion letter to facilitate removal of restrictive legends on his stock certificate. The mistake was in the opinion letter where the law firm mistakenly said it represented "Plaintiff" rather than the employer.

The Appellate Division affirms Judge Bransten writes and writes an opinion that lists every attempt the plaintiff made to hold the law firm responsible, denying each.  In Cusack v Greenberg Traurig, LLP   2013 NY Slip Op 06070 Decided on September 26, 2013.

"The complaint stems from plaintiff’s failed efforts to have defendant, counsel for plaintiff’s former employer, American Defense Systems, Inc. (ADSI), issue a corrected opinion letter to facilitate removal of restrictive legends on his stock certificate. Defendants had issued an opinion letter that misstated that it represented plaintiff, rather than ADSI. Defendant asserts that ADSI subsequently directed it not to issue a corrected letter because ADSI maintains, in a separate lawsuit, that plaintiff fraudulently procured his employment and the stock.

The court properly dismissed the claim of legal malpractice, as there was no attorney-client relationship (Waggoner v Caruso, 68 AD3d 1, 5 [1st Dept 2009], affd 14 NY3d 874 [2010]). Defendant represented ADSI, not its shareholders or employees and, thus, not plaintiff (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 562 [2009]). Contrary to plaintiff’s contentions, nothing in the parties’ actions created an attorney-client relationship (see Polovy v Duncan, 269 AD2d 111, 112 [1st Dept 2000]). Defendant’s request that plaintiff complete a second shareholder questionnaire to issue a corrected opinion letter does not suffice to create an attorney-client relationship. Defendant represented ADSI in ongoing adversarial litigation against plaintiff after his employment was terminated. Moreover, plaintiff essentially acknowledges the lack of an attorney-client relationship, as his complaint largely stems from the allegation that defendant misstated that it represented plaintiff in the opinion letter.

Nor is there near privity to support a claim of legal malpractice based on an allegedly negligent misrepresentation. As the motion court noted, the opinion letter was addressed to BNY Mellon, and as plaintiff alleged in the complaint, the parties contemplated only that BNY Mellon, not plaintiff, would
rely on the letter (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 384 [1992]).

The motion court correctly dismissed the breach of fiduciary duty claim, as there was no attorney-client relationship and no other factual allegations establishing such a duty (see [*2]Eurycleia Partners, 12 NY3d at 562).

Plaintiff cites no allegations in the complaint to refute the motion court’s conclusion that there was no breach of contract claim. Plaintiff failed to allege that the "contract," defendant’s alleged acceptance of plaintiff’s offer to issue a letter to remove the restrictive covenant, was supported by consideration. Since a claim for breach of a duty of good faith cannot be plead absent an underlying contract (see Keefe v New York Law School, 71 AD3d 569, 570 [1st Dept 2010]), that claim was properly dismissed as well.

The motion court correctly dismissed the fraud claim and both negligence claims as duplicative of plaintiff’s malpractice claim (see Dinhofer v Medical Liab. Mut. Ins. Co., 92 AD3d 480, 481 [1st Dept 2012], lv denied 19 NY3d 812 [2012]; Weksler v Kane Kessler, P.C., 63 AD3d 529, 531 [1st Dept 2009]).

Contrary to plaintiff’s contention, in assessing the common-law securities fraud claim, the motion court acknowledged that plaintiff’s alleged deceptive practices included not only issuance of a defective opinion letter but also the subsequent failure to correct it. To allege fraud, however, the complaint must allege, among other things, that plaintiff justifiably relied on an alleged misrepresentation or material omission (IDT Corp. v Morgan Stanley Dean Witter & Co, 12 NY3d 132, 140 [2009]). The only alleged misrepresentation here was the misstatement in the opinion letter that defendant represented plaintiff, and the motion court correctly concluded that plaintiff failed to allege that he relied on it to his detriment.
The court also properly dismissed plaintiff’s securities fraud claim based on General Business Law § 349, as plaintiff’s allegations do not encompass consumer-oriented conduct (see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24-25 [1995]). "

Plaintiff is a 50% shareholder in a lucrative franchise operation, and at the end of a contract term both he and the entire franchise is faced with a difficult franchisor, which wants to upset the arrangement.  An attorney is hired, and not only does the eventual franchisor-franchisee litigation end badly, but the individual plaintiff is advised to forego a consulting contract worth $800,000.  May the individual sue the law firm?

Bayit Care Corp. v Einbinder 2013 NY Slip Op 51557(U)  Decided on September 24, 2013  Supreme Court, New York County  Bransten, J. holds that for the moment, he may sue.  A motion to dismiss was denied as to him. 
 

"Plaintiff Bayit is a corporation that provided healthcare services. Plaintiff Schreier is the 50% co-owner of Bayit, as well as its president and on-site manager. Defendant E & D is a law firm practicing, among other things, franchise law. Defendant Einbinder is an attorney at E & D.

As part of its business, Bayit had previously entered into a franchise agreement whereby Bayit, as franchisee, managed a healthcare center and paid the cost of [*2]administrative personnel. (Defs.’ Order to Show Cause, Exhibit F ¶ 6.) The franchisor employed and paid the healthcare personnel, and coordinated billing and collection from customers of the center. (Id., Exhibit F ¶ 6.)

The instant litigation stems from the alleged failure of E & D and Einbinder to take certain actions with respect to the renewal of the Plaintiffs’ franchise. In 2009, a dispute arose as a result of the imposition of certain business decisions by the franchisor on Bayit. (Am. Compl. ¶ 21.) Defendants were retained by Bayit and, according to the Amended Complaint, Schreier, in connection with this dispute. (Id. ¶ 19.) From January 2010 to June 2011, a total of three retainer agreements were executed between Plaintiffs and Defendants. (Id. ¶ 19.)

Following settlement discussions between the franchisor and Plaintiffs, on the advice of Einbinder, Plaintiffs commenced a lawsuit against the franchisor, rather than either renewing the franchise or accepting one of the buyout or termination offers made by the franchisor. (Id. ¶¶ 40-48.) According to Plaintiffs, Defendants likewise failed to advise them of the requirements for renewal of the franchise. (Id. ¶¶ 47, 87-89.) Defendants also advised Schreier to reject an offer to enter into a consulting agreement with the franchisor, which would have provided Schreier with up to $800,000 in income over a five-year period. (Id. ¶¶ 9, 43.) Plaintiffs maintain that Defendants knew or should have known that Plaintiffs wanted to renew the franchise and that the franchise had monetary value to the Plaintiffs, and that Defendants took no action to renew the franchise until after the deadline for doing so had passed. (Id. ¶¶ 79-80.) "

""It is well settled that a corporation’s attorney represents the corporate entity, not its shareholders or employees." Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 562 (2009) (citations omitted). As the First Department has observed, "[a] lawyer’s representation of a business entity does not render the law firm counsel to an [*4]individual partner, officer, director or shareholder unless the law firm assumed an affirmative duty to represent that individual." Campbell v. McKeon, 75 AD3d 479, 480-81 (1st Dep’t 2010). That is, "[u]nless the parties have expressly agreed otherwise in the circumstances of a particular matter, a lawyer for a corporation represents the corporation, not its employees." Talvy v. American Red Cross, 205 AD2d 143, 149 (1st Dep’t 1994), aff’d, 87 NY2d 826 (1995).

In this case, the record is unclear as to whether there was such an express agreement given the manner in which the retainer agreements were drafted. Each of the retainer agreements was addressed to Schreier personally, care of his business address at Bayit. (Am. Compl. ¶ 24.) " [T]he addition of a care of line . . . merely adds a person at that address who may claim the mail.’" Matter of Informart New York LLC v. Hugh O’Kane Elec. Co. LLC, 2003 WL 26094732, at *1 (Sup. Ct. NY County Jan. 6, 2003) (quoting Hoffenberg v. Commissioner, 905 F.2d 665, 666 (2d Cir. 1990)). See Russell & Annis v. Livingston & Wells, 16 NY 515, 518 (1858) (explaining that "[o]rdinarily, the address of a package to the care of any one is an authority to the carrier to deliver it to such person").

Moreover, the retainer letters do not clearly identify Bayit as the client. (Am. Compl. ¶ 25.) To the contrary, the January 11, 2010 retainer letter begins, "Dear Mr. Schreier: This retainer letter is intended to express our mutual understanding regarding our legal representation of you." (Defs.’ Order to Show Cause, Exhibit C, at 1.) Similarly, the June 13, 2011 retainer letter begins, "Dear Shabsi: This confirms that you have retained Einbinder & Dunn, LLP ( E & D’) to represent you in the above-referenced action." (Id., Exhibit D, at 1.) Likewise, the June 28, 2011 retainer letter begins, "Dear Shabsi: This confirms that you have retained Einbinder & Dunn, LLP ( E & D’) to represent you in the above-referenced actions in New York and Louisiana and in the Louisiana action to work with the local attorney." (Id., Exhibit E, at 1.)

Also significant is the fact that Defendants made multiple references to Schreier as their client during a hearing in a consolidated action against the franchisor, and as part of that action, Schreier submitted sworn declarations to that court "focus[ing] on his personal contributions to the Franchisor." (Am. Compl. ¶¶ 69-70.) In Cooke v. Laidlaw Adams & Peck, Inc., 126 AD2d 453 (1st Dep’t 1987), the First Department held that "[a]n attorney’s appearance in a judicial or quasi-judicial proceeding creates a presumption that the attorney-client relationship exists." Cooke, 126 AD2d at 455 (citation omitted). Finding that an attorney-client relationship between a corporation’s employee and corporate counsel did, in fact, exist, that court noted that it was "significant" that corporate counsel appeared at a proceeding involving an employee of a corporation and "admitted on the record before the SEC that they were appearing personally on [the employee’s] behalf." Cooke, 126 AD2d at 455.

Accordingly, both the language of the retainer agreements and Defendants’ conduct are sufficiently ambiguous as to create an issue of fact regarding the identity of [*5]Defendants’ client.

Defendants separately argue that Schreier is not a third-party beneficiary of the retainer agreements between Bayit and E & D, and that there are no "special circumstances" present that would give Schreier standing to bring this legal malpractice claim against E & D notwithstanding the absence of an attorney-client relationship.

"While privity of contract is generally necessary to state a cause of action for attorney malpractice, liability is extended to third parties, not in privity, for harm caused by professional negligence in the presence of fraud, collusion, malicious acts or other special circumstances." Good Old Days Tavern, Inc. v. Zwirn, 259 AD2d 300, 300 (1st Dep’t 1999) (citations omitted). "[S]pecial circumstances" are present where the relationship between the plaintiff and the defendant attorney is "tantamount to one of contractual privity." Good Old Days Tavern, Inc., 259 AD2d at 300. The First Department found that special circumstances were present where the plaintiff "was the president and sole shareholder" of the corporation that had retained the defendant attorney and running that corporation was the business from which "he derived his livelihood." Good Old Days Tavern, Inc., 259 AD2d at 300.

Defendants distinguish the holding in Good Old Days from the instant case, citing Topor v. Enbar, 841 N.Y.S.2d 824 (Sup. Ct. NY County 2007). In Topor, the plaintiff alleged that he and multiple related entities had retained and consulted the defendant attorney, and the court found that the plaintiff "held, at most, a minority interest" in the corporate client. Topor, 841 N.Y.S.2d at 824 (emphasis added).

However, the facts in Topor are distinguishable from those in this case. Here, Plaintiffs allege that Schreier was a 50% co-owner of Bayit, that he was Bayit’s president and on-site manager, and that he was a "foreseeable third-party beneficiary" of certain agreements between Bayit and the franchisor. (Am. Compl. ¶¶ 2, 18.) Plaintiffs also allege that "Defendants knew or should have known" that the "Franchisor was motivated to terminate Bayit’s Franchise," "that Bayit wanted to renew its franchise for an Additional Term of five (5) years until March 31, 2017, and that this renewal term had substantial monetary value to Bayit and Mr. Schreier." (Id. ¶¶ 41, 79.) Moreover, Plaintiffs allege that Defendants "counsel[ed] Mr. Schreier to decline" the offer to provide consulting services to the franchisor, and that as a result of failing to renew the franchise, Schreier lost his annual income of $300,000 and $800,000 in consulting fees. (Id. ¶¶ 9, 14-16.) "

Plaintiff unlocks the front door to his apartment building and it knocked unconscious as soon as he enters the lobby.  Three men run out with bats in hand.  Is there a case against the landlord?  In Angeles v Aronsky  2013 NY Slip Op 05955  Decided on September 24, 2013  Appellate Division, First Department we see not only that there easily could be a case for premises security liability, but it could be legal malpractice to settle too fast, and potentially, for too little money.
 

"Shortly after the attack, plaintiff retained defendant to represent him in a potential personal injury case. According to defendant, an investigator from his office initially interviewed plaintiff at the hospital. Defendant asserts that he later spoke with plaintiff over the phone to review the information plaintiff had given the investigator. Plaintiff told defendant that the front door was locking properly on the day he received his injuries and mentioned no other entrances. Defendant accepted plaintiff’s statements concerning the security of the building, and did not send an investigator to inspect the premises or visit the premises himself. Also, he did not interview the superintendent. [*2]

Although a settlement agreement was reached with the owner of the building prior to the commencement of any personal injury action, plaintiff commenced a legal malpractice action against defendant, alleging, inter alia, that he negligently investigated plaintiff’s premises liability claim. Defendant moved for summary judgment dismissing plaintiff’s complaint and the motion court denied the motion.

For a claim for legal malpractice to be successful, "a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [internal citation omitted]). A client is not barred from a legal malpractice action where there is a signed "settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel" (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435 [1st Dept 2011] [internal quotation marks omitted], quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]).
 

Plaintiff, a waiter with a sixth grade education, retained defendant to represent him in a premises liability claim, relying on defendant’s expertise as a personal injury attorney to evaluate his claim and provide advice on the case. Plaintiff asserts that defendant only contacted him once after being retained, and only to ask him to go into defendant’s office to sign paperwork for the case. Plaintiff, an unsophisticated client with no legal experience, states that defendant did not explain to him the strengths and weaknesses of his claim and did not do a proper investigation. Defendant does not dispute that he never went to the building or spoke to the superintendent, but argues that he fulfilled his obligation by conveying the settlement offer to plaintiff.

In this specific case, given plaintiff’s lack of sophistication and his limited education, defendant’s statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer. Furthermore, defendant says he told plaintiff, when he conveyed the settlement offer, that it was a "difficult liability case." It is difficult to understand, on the record before us, how he made that assessment without going to the building, or speaking to the superintendent. Because the evidence on a defendant’s summary judgment motion must be viewed in the light most favorable to plaintiff (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]), we find there are questions of fact as to whether the attorney failed to exercise the ordinary reasonable skill appropriate under the circumstances.

The motion court properly found that plaintiff raised a question of fact as to whether the underlying action would have succeeded. To prevail on a premises liability claim, a plaintiff does not have "to exclude every other possible" explanation as to how the assailants entered the building, but only present "evidence [that] renders it more likely or more reasonable than not that the assailant was an intruder who gained access to the premises through a negligently maintained entrance" (Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550-551 [1998]). In Bello v Campus Realty, LLC (99 AD3d 638, 639 [1st Dept 2012]), this Court found an issue of fact as to how the assailants entered the building where the plaintiff did not recognize her attackers as fellow tenants and the men were dressed as police officers. Similarly, in Chunn v New York City Hous. Auth. (83 AD3d 416, 417 [1st Dept 2011]), a factual issue was presented as to whether it was [*3]more likely than not that plaintiff’s assailants were intruders where the men made no attempt to conceal their faces."

A recurring theme in defense-side publications in the legal malpractice field is the connection between attorney fee collection suits and subsequent legal malpractice counter-claims.  For us, its a chicken-egg issue.  Is the legal malpractice case a shameless effort to avoid payment, or did the non-payment arise because there was poor performance (read:  legal malpractice)?

We don’t know, and we definitely don’t link the two in this story.  We have no opinion on the quality of work performed by the Kasowitz law firm.  We do predict many further events in this large fee collection lawsuit reported today in the NYLJ by Christine Simmons. 

"Kasowitz Sues Ex-Client for $2.3 Million in Fees
Christine Simmons

New York Law Journal

2013-09-24 00:00:00.0

Kasowitz, Benson, Torres & Friedman is suing hedge fund manager Alphonse Fletcher Jr. for $2.3 million in unpaid legal fees after the firm represented him in a high-profile discrimination suit against the Dakota, the legendary co-op on the Upper West Side of Manhattan (See Complaint). Kasowitz Benson lawyers, including managing partner Marc Kasowitz, were counsel to Fletcher and Fletcher Asset Management.

Fletcher, a former president of the co-op board, alleged that the Dakota discriminated against him based on his race in its refusal to approve his application to purchase an apartment next to his own for the purpose of combining the two. Fletcher, in Fletcher v. Dakota, 101289-2011, in Manhattan Supreme Court, also alleged the Dakota defamed him by making false statements about his finances, including an observation that he had "checked out of his business" and was living on "borrowed money." The Dakota case is still pending.

In its Sept. 19 collection lawsuit, Kasowitz Benson v. Alphonse Fletcher, Fletcher Asset Management, 158590/2013, Kasowitz said it advised Fletcher from July 2011 through November 2012, and Fletcher did not object to the invoices. The firm said it has received partial payment of about $1 million, leaving an unpaid balance of about $2.3 million. The suit said Fletcher "ceased paying any of the fees and disbursements" under the retainer agreement "despite repeated demands for payment."

Nathaniel Read, a partner at Cohen & Gresser who represents Fletcher, did not return a message seeking comment. Neither Kasowitz nor a representative of the firm returned messages for comment."
 

The decision is somewhat short on facts, but we guess that this case arose froma settled landlord-tenant case in which tenant then died. His estate sued his former attorneys, and the case continues. Frankel v Vernon & Ginsburg, LLP 2012 NY Slip Op 08425 Appellate Division, First Department tells us that the AD often scrutinizes the "but for" portion of the case very closely.

"The IAS court properly declined to dismiss the legal malpractice cause of action. Defendants failed to sustain their burden on summary judgment of demonstrating that plaintiff would be unable to prove one of the essential elements of his claim (see Sabalza v Salgado, 85 AD3d 436 [1st Dept 2011]). On the contrary, the record demonstrated that plaintiff’s decedent had viable causes of action for breach of the warranty of habitability and nuisance against defendants in the underlying action (see 61 W. 62 Owners Corp. v CGM EMP LLC, 77 AD3d 330 [1st Dept 2010], affd in part, mod in part 16 NY3d 822 [2011]; Misra v Yedid, 37 AD3d 284, 285 [1st Dept 2007]). Furthermore, the record demonstrated that plaintiff’s decedent might have recovered legal fees, which alone exceeded the amount of the settlement in this matter (Real Property Law § 234). "