Personal injury and legal malpractice cases have many strong bonds. Because a sizable portion of the litigation world is devoted to personal injuries (on both the plaintiff’s and defendant’s side), one correctly expects significant legal malpractice litigation after-wards. How the legal malpractice case proceeds along with or after the PI case is a not well understood procedure. In Simoni v Costigan 2012 NY Slip Op 07882 Appellate Division, First Department and Simoni v Napoli 2012 NY Slip Op 08639;  Appellate Division, First Department we see two sides of the same issue.
 

Costigan: Although the personal injury actions and the legal malpractice action involve "a common question of law or fact" (CPLR 602[a]), consolidation could engender jury confusion and [*2]prejudice the defendants in the malpractice action (see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269, [1st Dept 2008]; Brown v Brooklyn Union Gas Co., 137 AD2d 479 [2nd Dept 1988]).

Napoli: The motion court providently exercised its discretion in denying defendants’ request for a stay of the legal malpractice action pending resolution of plaintiff’s personal injury action (see CPLR 2201). The proceedings do not share complete identity of parties, claims and relief sought (see 952 Assoc., LLC v Palmer, 52 AD3d 236 [1st Dept 2008]; Esposit v Anderson Kill Olick & Oshinsky, P.C., 237 AD2d 246 [2d Dept 1997]).

The motion court also properly permitted plaintiff to amend the complaint (see CPLR 3025[b]). The amended complaint and the documents submitted in support of the cross motion allege facts from which it could reasonably be inferred that defendants’ negligence caused plaintiff’s loss (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435 [1st Dept 2011]). At this stage of the proceedings, plaintiff does not have to show that he actually sustained damages as a result of defendants’ alleged malpractice (id. at 436).

Falling into a trap laid by oneself is a pitiful outcome to litigation.  Plaintiff hires defendant attorney to represent plaintiff when he is sued. The underlying case seems to be a construction accident matter. Did plaintiff lose the case because defendant failed to make certain arguments, or was defendant prevented from making those arguments by his client? We can’t really tell from the decision, but it seems that defendant undercut his own case here.’

Affordable Community, Inc. v Simon  2012 NY Slip Op 03789  Decided on May 15, 2012  Appellate Division, Second Department tells us: "The defendant here is an attorney who represented the plaintiff in a lawsuit asserted against the plaintiff by an individual who was injured at a construction site owned by the plaintiff. In this legal malpractice action, the defendant alleged that the plaintiff limited him to presenting only certain unsuccessful defense arguments in the course of representation. However, the defendant’s own evidence raised a triable issue of fact regarding this allegation. Consequently, there remain triable issues of fact as to whether the defendant negligently failed to present viable defenses in the underlying action and if so, whether, as a result of such failure, the plaintiff incurred liability for damages in that lawsuit. Accordingly, the defendant’s submissions in support of his motion for [*2]summary judgment did not establish, prima facie, that the plaintiff will be unable to prove the elements of legal malpractice and, thus, he failed to demonstrate his entitlement to judgment as a matter of law (see Mueller v Fruchter, 71 AD3d 650, 651; Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 454). In light of our determination, we need not address the sufficiency of the plaintiff’s opposition papers (see Scott v Gresio, 90 AD3d 736, 737; see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "
 

The Third Department gives a nice analysis of the law of "account stated" in its decision, Antokol & Coffin v Myers ;2011 NY Slip Op 06051 ;Appellate Division, Third Department .
 

""’An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due’" (J.B.H., Inc. v Godinez, 34 AD3d 873, 874 [2006], quoting Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993], lv denied 82 NY2d 660 [1993]). An attorney can recover fees on an account stated "with proof that a bill . . . was issued to a client and held by the client without objection for an unreasonable period of time" (O’Connell & Aronowitz v Gullo, 229 AD2d 637, 638 [1996], lv denied 89 NY2d 803 [1996]).

At trial, plaintiff introduced evidence of a retainer agreement between Antokol and defendant as well as unpaid invoices for legal fees dated between September 1995 and December 1996. Antokol testified that these invoices were ordinarily sent to defendant on a monthly basis and that defendant did not object to the bills until plaintiff commenced this action. Defendant testified that she did not remember receiving monthly bills but, in her prior deposition testimony, acknowledged that she thought she had received a bill most months. Although defendant claimed to have had "constant conversations about the bills" with Antokol, and Antokol admitted that he made efforts to get her to pay, including offering a 10% discount in February 1996, he testified that defendant never offered a reason for her refusal to pay the bills. Indeed, with the exception of one specific objection to work completed by one of Antokol’s colleagues, which defendant ultimately agreed to pay, defendant did not claim to have made objections to any specific bill, despite the language at the end of each bill stating, "The above information will be deemed correct unless objection is made within 30 days." Further, defendant admittedly made no written objections to the bills. Under these circumstances, we agree with Supreme Court that defendant’s general claims of verbal refusals to pay did not constitute a specific objection sufficient to defeat plaintiff’s cause of action for an account stated (see Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; J.B.H., Inc. v Godinez, 34 AD3d at 875-876; PPG Indus. v A.G.P. Sys., 235 AD2d 979, 980 [1997]; see also Zanani v Schvimmer, 50 AD3d 445, 446 [2008]). "

"Turning to the adequacy of the services billed for, we agree with Supreme Court that the record demonstrates that plaintiff provided competent representation in a difficult matrimonial matter. Antokol’s failure to establish grounds for divorce in defendant’s favor, albeit clearly a point of frustration for defendant, was irrelevant, as fault did not affect the equitable distribution of marital assets (see Howard S. v Lillian S., 14 NY3d 431, 435-436 [2010]). Defendant’s assertions that Antokol should have presented expert testimony to increase her share of the marital estate and that he was not prepared for trial are counterbalanced by record evidence that Antokol’s decisions were part of his trial strategy and his claims that defendant’s refusal to follow his advice at times interfered with his ability to achieve better results for her. In sum, the record evidence fully supports Supreme Court’s finding that the alleged inadequacies of Antokol’s representation are insufficient to undermine plaintiff’s right to be paid for its services (see Matter of Wapner, Koplovitz & Futerfas v Solomon, 7 AD3d at 916). "

Overturning a jury verdict is difficult.  Doing so in a legal malpractice case is hard.  Doing so, when the facts seem to be against you is even harder.  Cinao v Reers 2013 NY Slip Op 05791
Decided on September 11, 2013 Appellate Division, Second Department  shows that legal malpractice plaintiffs have to be almost wholly blameless if they wish to succeed.
 

"Here, the evidence supports the jury’s finding that the defendant did not "depart[ ] from the exercise of that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community" (Edwards v Haas, Greenstein, Samson, Cohen & Gerstein, P.C., [*2]17 AD3d 517, 519). The jury properly credited evidence which established, among other things, that the defendant marshaled the trust assets, communicated with the attorneys representing the plaintiff’s brother in an attempt to settle the brothers’ dispute over the trust, advised the plaintiff to retain local counsel in Hawaii, and successfully sought to adjourn the proceedings several times to give the plaintiff sufficient opportunity to retain local counsel. The plaintiff admitted that he made no attempt to retain local counsel to oppose his brother’s petition to remove him as sole trustee. In addition, it is undisputed that when the plaintiff retained the defendant in April 2000, the plaintiff had already breached the terms of the trust which required him to distribute $158,000 to his brother within six months of their mother’s death, and that prior to retaining the defendant, the plaintiff, as the sole trustee, had not taken any steps to administer the trust. Thus, the jury properly concluded that the plaintiff’s inaction as sole trustee led to the untimely distributions, as well as his removal as sole trustee, and that the defendant did not depart from the exercise of that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community in attempting to resolve the brothers’ dispute and administer the trust. Accordingly, contrary to the plaintiff’s contention, the verdict was supported by a fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d at 746). "

We’ve seen $7 Million legal malpractice cases, and $ 700,000 cases, but it is rare to see a Supreme Court case for $ 7,171.00  Nevertheless, plaintiff brought Dash v Davis & Gilbert LLP
2013 NY Slip Op 51469(U)   Decided on September 6, 2013   Supreme Court, New York County
Ling-Cohan,  only to lose on a CPLR 3211 motion. 

"Defendants argue that plaintiff is seeking to re-litigate issues that were settled in the Surrogate’s Court Action, and, thus, plaintiff’s claims are barred by res judicata. Defendants further argue that, pursuant to CPLR 3211(a)(1), the undisputed documentary evidence disposes of plaintiff’s claims. Defendants also contend that plaintiff’s complaint must be dismissed as it fails to state a cause of action.
In opposition to defendants’ motion, plaintiff argues that she was not previously provided with a full and fair opportunity to litigate her claims of fraud, negligence, and legal malpractice [*3]in the Surrogate’s Court Action. Plaintiff also argues that the Executors failed to support the claim of pre-arrangement contracts with conclusive facts. Plaintiff alleges that on April 6, 2012, she received an email from defendants which contained a Final Accounting and a Stipulation of Settlement which differed from what was agreed upon. According to plaintiff, this proves defendants’ deceit and fraudulent behavior. Specifically, in her opposition, plaintiff seeks damages of $7,171 for the difference between the agreed upon sale price of the Amsterdam Memorial Chapel and the actual sale price. In support, plaintiff proffers a letter sent by defendant Law Firm, dated November 10, 2011, to plaintiff’s attorney in the Surrogate’s Court Action with a proposed settlement of, inter alia, a "distribution of the estate’s interest in the [Amsterdam Memorial] chapel in kind, or a sale for $60,000, whichever [plaintiff] prefer[s]. …[I]f there is a distribution in kind, [defendant Harris] intends to sell her interest to Mr. Bethea in a separate transaction." Dash Affidavit in Opposition, Exh. K, p. 1. Plaintiff also proffers a copy of the email and Final Accounting, dated April 6, 2012, which lists the sale of the interest in the Amsterdam Memorial Chapel at $52,829, rather than $60,000. See Dash Affidavit in Opposition, Exh. L, Schedule A.

It is well settled that New York has adopted the transactional analysis approach to res judicata. "Under the transactional analysis approach…, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy". Cornwall Warehousing, Inc. v Town of New Windsor, 238 AD2d 370, 371 (2d Dep’t 1997) (internal quotations omitted).

Here, plaintiff concedes that she raised objections in the Surrogate’s Court Action, obtained an attorney to represent her, negotiated and ultimately agreed to a settlement in the Surrogate’s Court Action, and withdrew her objections with prejudice. While plaintiff proffers a proposed settlement allegedly offered by defendants to settle the Surrogate’s Court Action, such proposal did not result in the final settlement agreement. Significantly, plaintiff does not allege that she agreed to settle on the terms proposed in defendants’ letter of November 10, 2011, and, thus, such proposed settlement is not conclusive proof of agreed upon terms. Further, the Final Accounting proffered by plaintiff dated April 6, 2012 – nearly five months after the proposed settlement – was admittedly received and reviewed by plaintiff, prior to her entering into the Stipulation of Settlement in the Surrogate’s Court Action on April 19, 2012. Plaintiff, knowing that the interest in the Amsterdam Memorial Chapel was sold for $52,829, nonetheless, chose to settle the Surrogate’s Court Action and withdrew her objections with prejudice; thus, she may not now contest her decision to settle the Surrogate’s Court Action. "

When a claim for legal malpractice accrues is a contentious source of motion practice in legal malpractice litigation.  Traditionally it is said that malpractice accrues on the date of the mistake, but that it can be tolled because of continuous representation.  Continuous representation is said to require an understanding between client and attorney that more work needs to be done, and that there is a relationship of trust and confidence between them.  Disciplinary complaints tend to undermine the "trust and confidence" aspect of the equation.

in Miller v Friedman  2013 NY Slip Op 32030(U)  August 23, 2013  Sup Ct, New York County  Docket Number: 400833/12  Judge: Joan A. Madden finds that the attorneys continued to represent the client for a while, and that this particular disciplinary complaint did not end the continuous representation.

"An action for legal malpractice must be commenced within three years of accrual, regardless of whether the underlying theory is grounded in tort or contract law. See McCoy v. Feinman, 99 NY2d 295,301 (2002); CPLR 214(6). Accrual is measured from the date when the injury occurs. See Ackerman v. Price ‘Waterhouse, 84 NY2d 535 (1994). However, aider the continuous representation doctrine, when an attorney continues to represent a client in the matter from which the claim arises, the statute of limitations on the legal malpractice claim is tolled and the limitations period does not begin to run until the termination of the attorney-client relationship. Shumsky v. Eisenstein, 96 NY2d 164 (2001); Riley v. Segan, Nemerov & Singer, P.C., 82 AD3d 572 (lst Dept 2011). For the doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing and dependant relationship between the client and the attorney.” Elizabeth Arden, Inc v. Abelman, Frayne & Schwab, 29 Misc3d 1215(A) (Sup Ct, NY Co 2010) (citing Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 AD2d 505,507 [2d Dept 1990); accord Henry v. Leeds & Morelli, 4 AD3d 229 (lst Dept 2004) (“relationship and bond of continuous trust necessary for the continuing representation doctrine to apply”).

Furthermore, contrary to defendants’ position, under these circumstances, plaintiffs complaint to the Disciplinary Committee filed in 20 10, does not establish as a matter of law that it no longer
represented plaintiff in April 20 1 1. Accordingly, the motion to dismiss on statute of limitations
grounds is denied."
However, defendants’ motion is granted to the extent of striking plaintiffs request for

Except for the fact that they were there, there is little in this decision to show why the attorneys were sued.  Antonelli v Guastamacchia  2013 NY Slip Op 32046(U)  August 22, 2013  Supreme Court, Richmond County Docket Number: 100705/08  Judge: Joseph J. Maltese tells the story of a good real estate and mortgage company gone bad, and how the attorneys were not involved.

"The plaintiff, Nicholas Antonelli, is a businessperson versed in real estate transactions and money lending. Antonelli operates several real estate businesses, including several mortgage brokerage firms. On or about December 27, 2004, Antonelli advanced the sum of $600,000 for
the purposes of purchasing property to construct, and eventually sell eight homes on Sprague
Avenue and Amboy Road, on Staten Island, New York to the Decker Defendants’ escrow account to pay for expenses of the project, for which the 7296-7304 Realty Corp (“Realty Corp.”) was established. Steven Decker, Decker, Decker, Dito & Internicola, LLP and their predecessor firm represented Antonelli, his wife Susan Guiffre, and his various companies in connection with making mortgage loans for 20 years. Guastamacchia and Lentini constructed the eight homes. The first six homes were sold without incident. According to the deposition testimony elicited in this action, Guastamacchia would keep Antonelli apprised of the status of the closings as they took place. During the first six closings the Decker defendants represented Realty Corp. in the transactions, with Guastamacchia appearing on behalf of the Realty Corp. "

"The last two units to be sold were located at 7300 Amboy Road and 7302 Amboy Road on Staten Island. On August 28, 2007, the defendant Catherine Guastamacchia applied for a loan from the defendant HCI to “refinance” and “cash out” the properties located at 7300 Amboy Road and 7302 Amboy Road. On September 13, 2007 and September 14, 2007 the Realty Corp transferred these to properties to Catherine and Vito Lentini and the properties were subsequently refinanced. These actions were taken without Antonelli’s knowledge or consent. Indeed, there is no evidence that the Decker defendants were in anyway involved with the transfers and subsequent mortgages on the last 2 houses that Guastamacchia and Lentini transferred from the Realty Corp. unto themselves without Decker’s knowledge or consent. This was a conversion by Guastamacchia and Lentini.
On or about February 10, 2006, Antonelli’s corporation, Cucamonga, LLC made a loan in the amount of $499,000 to V.E.V. Development LLC. In return Cucamonga, LLC received a mortgage on property located at 157 Kiswick Avenue, Staten Island, New York. The plaintiffs’ allege that the Decker defendants failed to file a mortgage lien on this property. In deposition testimony in connection with this action, Antonelli testified that this loan was repaid in its entirety and consequently, there are no damages sustained by Antonelli. But more importantly, Cucamonga, LLC is not a party to this action."

‘Here, the Decker Defendants demonstrated that they did not commit any acts of negligence. It is acknowledged by the plaintiffs that the Decker Defendants were not in any way involved in the transfer of 7300 Amboy Road and 7302 Amboy Road from the Realty Corp. to the Lentinis. Moreover, with respect to the Kiswick Avenue property, it is conceded that the plaintiff Antonelli’s loan was repaid in fully. Consequently, there is no evidence that Antonelli sustained any damage
irrespective of whether the Decker Defendants failed to file a mortgage lien on the Kiswick  Avenue property. Consequently, the plaintiffs’ failed to raise an issue of fact in opposition to the defendants’ motion for summary judgment, nor have they met their burden going forward on
their own motion for summary judgment. Therefore, summary judgment is granted in favor of
the Decker Defendants."

Kassel v Donohue  2013 NY Slip Op 32015(U)  August 22, 2013  Supreme Court, New York County  Docket Number: 150886/2013  Judge: Eileen A. Rakower is an example of the court working its way through a series of causes of action, and individually (rather than blanketly) upholding or dismissing them.

"As alleged in the proposed Amended Complaint, in or about July 2010, Plaintiff retained the legal services of defendant C&D, a New York law firm of which defendant Donohue was a member, in connection with an arbitration pending against Plaintiffs former employer ISSI Holdings, LLC. The arbitration arose from ISSI’s alleged default on a prior judgment in Plaintiffs favor in the amount of$I,822,500. It is alleged that at Donohue’s bequest, Plaintiff executed an engagement letter with
the accounting firm of CC&C and Lynch to provide forensic accounting services and expert testimony in connection with the arbitration. Donohue, along with Plaintiff and Lynch, also executed that engagement letter. As further alleged in the proposed Amended Complaint, Plaintiff became
dissatisfied with CC&C and Lynch’s services in the weeks preceding the arbitration, and instructed Donahue to discharge them. It is further alleged that Donahue ignored Plaintiffs instruction, Donohue and Lynch concealed from Plaintiff the full extent of their involvement in the preparation for arbitration, and Donohue directed Lynch to opine contrary to Plaintiff s position that the appropriate interest rate applicable to the Default Judgment was 9%, rather than a two percent rate of interest. The proposed Amended Complaint asserts the following causes of action: legal
malpractice as against defendants Donohue and C&D (first cause of action), breach of contract against defendants CC & Lynch (second cause of action), and seeks to set aside the engagement letter of defendants CC & Lynch (third cause of action)

"To sustain a cause of action for legal malpractice, moreover, a party must show that an attorney failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession." (Darby & Darby v. VIS Int ‘I, 95 N.Y. 3d 308, 313 [2000]). In order to prevail against an attorney on a legal malpractice claim, a plaintiff must first prove that the attorney was negligent, that such negligence was the proximate cause of the loss sustained, and that actual damages resulted. (see Tydings v. Greenfield, Stein & Senior, 2007 NY Slip Op 6734, *2 [1 st Dept. 2007]). Here, the four corners the Amended Complaint make out a claim for legal malpractice against defendants Donohue and C&D. The Complaint alleges that defendants Donohue and C&D were negligent in "advocat[ing] for the improper interest rate at the 2011 Arbitration," "advocating for no acceleration on the default," and by failing to correct his alleged legal and factually incorrect assertions concerning the default rate when provided an opportunity", and that but for this
negligence, the arbitrators would have awarded 9% statutory interest and accelerate the payment of the amount in default. The second cause of action of the proposed Amended Complaint alleges breach of contract against defendants CC and Lynch. It alleges that Plaintiff and CC and Lynch entered into a contract with Plaintiff, that pursuant to its terms, CC and Lynch were to provide Plaintiff with biweekly billing for services rendered under the Retainer Agreement, and that they failed to do so thereby depriving Plaintiff of notice of the extent of the services being rendered. It further alleges that CC & Lynch were required to request and receive payment prior to the drafting of an expert report and that they failed to submit the required advance notices for these services. However, despite this alleged breach of the terms of the contract, the Complaint then asserts that
"Plaintiff sustained economic damages as a direct and proximate result of the professional malpractice of Defendants CC and Lynch," and that "but for" this professional negligence, Plaintiff would not have sustained economic damages. This cause of action therefore fails to state a claim because although it asserts the existence of a contract and breach of that contract, it does not allege damages as a result of that breach but rather as a result of Defendants’ "professional negligence," a claim that Plaintiff has withdrawn."