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). "

In an otherwise garden or varietal attorney fee dispute with a legal malpractice defense, we ran across the "French Person" defense to attorney fees for the first time. Justice Gische, in Singer v Adler ; 2010 NY Slip Op 33439(U); Sup Ct, NY County gave it short shrift.

"This action is based upon claims for legal services rendered by plaintiff, Stephen Sayre Singer, to defendant, Joel A. Adler. Adler brings a pre-answer motion to dismiss the verified complaint against him on the basis that it is barred by the statute of limitations and alternatively, he is a “French person” and a New York Court does not have personal jurisdiction over him, pursuant to Article 14 of the Civil Code of the Republic of France. Both parties are attorneys at law and each is self represented in this action."

"Defendant generally claims there is no personal jurisdiction over him because he is a “French person.” Whether this argument pertains to long arm jurisdiction or service of process, it fails.
CPLR 5 302 provides that a court may assert jurisdiction over a non-domiciliary when the non-domiciliary “transacts any business within the state” and the cause of action arises out of that business. See CPLR 302 (a)(l). In order to have personal jurisdiction over a defendant, it is essential that the suit against the non-domiciliary have some “articulable nexus” to the business transacted. See McGowan v, Smith, 52 NY2d 268, 272 (1981). The basis of plaintiffs complaint, premised on plaintiffs performance of legal services for defendant, and the non-payment of legal fees, while defendant was domiciled in New York, amounts to “transaction of business within the state” and has an “articulable nexus” to the business transacted, specifically the provision of legal
services. Therefore, personal jurisdiction over defendant is proper. "

The undisputed facts in this case are shocking. "The following facts are undisputed. In or about May 2004, plaintiff, which had a lease on the building located at 2944 3d Avenue in the Bronx , retained the law firm of Gold, Rosenblatt & Goldstein to commence a commercial summary nonpayment action against the subtenants of the building, Diab and Hasan Saleh, who were doing business as 2944 3d Ave Retail Corp.("Retail Corp."). Defendant Steven E. Goldstein, a then-partner of the firm undertook the representation of plaintiff, and after commencing the action (Steven’s Distributions, Inc. v 2944 3rd Ave Realty Corp., Index No. 90110 (Civ Ct, B r o n x Co, 2 0 0 8 ) , fabricated several court orders purporting to award plaintiff various sums in back rent, so as to persuade plaintiff that Goldstein was actively prosecuting the action. "

So goes Steven’s Distribs. Inc. v Gold, Rosenblatt & Goldstein 2012 NY Slip Op 31990(U)
July 24, 2012 Supreme Court, New York County Docket Number: 106283/09 Judge: Joan A. Madden. This case is another example of the microscopic examination of "proximate cause" that goes on in legal malpractice litigation.

Justice Madden goes on to find that no matter how much fooling around took place during the litigation it was doomed from the start because no demand for rent had been timely made. If no demand for rent, then no case. If no case, then the internal bad behavior of of no interest.

"Accordingly, while Goldstein’s erroneous naming of the parties in the caption was unquestionably malpractice sufficient to have caused the dismissal of plaintiff’s petition, and while, perhaps, Goldstein’s (or Lubellls) failure to prepare plaintiff’s bookkeeper for her testimony would also have been sufficient to cause the dismissal, plaintiff in any event could not have prevailed in the first proceeding, since it had failed to prove a pre-litigation rent demand. For that reason, Goldstein’s (and possibly, Lubellls) negligence ”was not a proximate cause of any damages arising from the ?loss of the underlying action. Barnett v. Schwartz, 47 AD3d 197, 204 (2nd Dept 2007). Nor can plaintiff prove that, but for Goldstein’s failure to prosecute the underlying case for almost t w o years, Retail Corp.’s motion to vacate its default would not have been granted by Judge Rodriguez. While Judge Rodriguez based her decision on l1 [the long standing status of [the] proceeding with no indication that respondent neglected to appear or negotiate, and no indication that petitioner zealously prosecuted its claim" (Chera Aff., Exh. 10, at 2 ) , Diab Salehls’ affidavit in support of
Retail Corp’s order to show cause noted both that there was no such entity as the petitioner named in the caption of the proceeding, and that petitioner lacked standing to prosecute i t s claim, since its lease with the over-landlord had been terminated for nonpayment."
 

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. "