Here is the tension:  in order to toll the statute of limitations one must commence an action.  Sometimes there is not enough time to prepare a competent complaint and file it,.  The solution is a summons with notice.  The notice requirement is what separates a good summons (which may lead to a default judgment) from a bad one.  What is enough "notice"?

Smith v Subbaiah  2013 NY Slip Op 31657(U)  July 18, 2013  Supreme Court, New York County
Docket Number: 805332/2012  Judge: Martin Shulman  discusses this issue.

"Defendants argue the summons with notice is jurisdictionally defective because it lacks any supporting facts, such as the date and type of treatment plaintiff received, thus giving no indication of plaintiff’s allegations plaintiff against them. Defendant Subbaiah further alleges that he has treated at least two (2) patients having the common name of Carol Smith and, due to that fact, plaintiffs failure to include more detailed allegations in the summons with notice was particularly insufficient to place him on notice of plaintiffs claims."

"CPLR 305 (b) provides in relevant part:
Summons and notice. If the complaint is not served with the summons,
the summons shall contain or have attached thereto a notice stating the
nature of the action and the relief sought …

The absence of such notice or a defective or inadequate description of the nature of the action which fails to apprise the defendant of the essence of the claim is fatal because it fails to confer jurisdiction over the defendant and must be treated as a nullity. Scaringi v Broome Realty Corp., 154 Misc2d 786, 789,586 NYS2d 472 (Sup Ct, NYCounty 1991), affd 191 AD2d 223 (1 sl Dept 1993). 

Defendants’ motions are denied. "The purpose of the CPLR 305 (b) notice is to provide the defendant with ‘at least basic information concerning the nature of [the] plaintiffs claim and the relief sought”’. Bullis v American Motors Corp., 175 AD2d 535, 536 (3d Dept 1991), citing Parker v Mack, 61 NY2d 114, 117 (1984). "A liberal construction of the statutory requirement of the contents of the notice accompanying a summons served without a complaint is consistent with the general policy of the CPLR". Id. A plaintiff is not required to specifically state her theory of recovery since "absolute precision is not necessary". Id. Here, although plaintiffs characterization of her claim is broad and she offers no specific factual details, this court cannot say that her summons with notice is inadequate at this stage of the litigation. Medical malpractice is the essence of plaintiffs claim and a recognizable cause of action. Scaringi, 191 AD2d at 223. As the lower court noted in Scaringi (154 Misc2d at 789), broadly descriptive words such as "automobile negligence", "negligence", "libel" and "legal services" have been held sufficient to describe an action’s nature. Indeed, in Pilla v La Flor De Mayo Express, Inc., 191 AD2d 224,224 (1 st Dept 1993), the First Department held that CPLR 305 (b)’s requirements were met by the mere statement "personal injury" (compare Roth v State Univ. of New York, 61 AD3d 476 [1 st Dept], Iv den 13 NY3d 711 [2009] [no compliance with CPLR 305 (b) where summons described the action’s nature a’s "violations of federal, New York State, and New York City human rights laws, including but not limited to" various named statutes, since numerous potential causes of action could be brought under such statutes])."
2

A crane topples at East 51st Street, and wrecks the development of a big building.  In the fallout, three legal malpractice law suits ensue, with many big-name attorneys suing or being sued.  How do the cases all fit together for trial?

Arbor Realty Funding, LLC v Herrick, Feinstein LLP  2013 NY Slip Op 51210(U)   Decided on July 24, 2013  Supreme Court, New York County  by Justice Edmead  lays out the principals and holds for complete consolidation.

"In support of consolidation, Herrick (and Gourlay) argue that all three actions should be consolidated as they all share common questions of law and fact arising from malpractice relating to the same zoning issues at the same Project.[FN6] Like Arbor, the Developer alleges that because of the defendants’ participation in the zoning issues, the Developer was ultimately unable to obtain construction financing, and therefore, defaulted on its loans to Arbor. The crane collapse, Mitzner’s opinions (from the outset and subsequent to the crane collapse), and the economic downturn which affected the New York real estate market overlap in all three cases, such that a finding of negligence against any of the defendants would affect the causation analysis with respect to Arbor’s losses. There is also a substantial overlap of the parties, witnesses and evidence.

In addition, consolidation would promote judicial economy by avoiding multiple depositions of the same witnesses on the same issues. It would also save unnecessary costs and prevent delay. Since no depositions have taken place in any of the three cases, consolidation would allow the witnesses, parties and non-party subpoena recipients to be heard once.

Furthermore, consolidation is necessary to prevent any injustice that would result from [*5]divergent decisions, as the court would be forced to analyze the zoning issues, weigh the reasonableness of the professional zoning advice in light of the surrounding circumstances and determine the causation issues in each of the three actions, based on the same set of facts. "

"Pursuant to CPLR § 602(a), when actions involving a common question of law or fact are pending before a court, the court "may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay" (CPLR 602 [a]). While it is not necessary that all rules and all facts be common to both actions, "[t]here must at least be some important rules of law and some substantial issues of fact to be determined that are in common to both actions" (Siegel v Greenberg, 85 AD2d 516, 444 NYS2d 622 [1st Dept 1981], citing Gibbons v Groat, 22 AD2d 996, 254 NYS2d 843 [3d Dept 1964]). Indeed, consolidation is mandated by judicial economy where two lawsuits are intertwined with common questions of law and fact (Teitelbaum [*8]v PTR Co., 6 AD3d 254, 774 NYS2d 699 [1st Dept 2004] (consolidation warranted where both actions arose out of the same partnership agreement, the parties to each possess knowledge and information relevant to the claim in the other, and the lists of potential witnesses in the two cases are almost identical) (emphasis added)).

Further, consolidation is generally favored by the courts "in the interest of judicial economy and ease of decision making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right" (Amcan Holdings, Inc. v Torys LP, 32 AD3d 337, 340 [1st Dept 2006], citing Amtorg Trading Corp. v Broadway & 56th St. Assoc., 191 AD2d 212, 213 [1st Dept 1993]). The burden of demonstrating prejudice to a substantial right is on the party opposing consolidation (Progressive Ins. Co. v Vasquez, 10 AD3d 518, 519 [1st Dept 2004]; Geneva Temps Inc. v New World Communities, Inc., 24 AD3d 332, 334 [1st Dept 2005]).

At the outset, it cannot be disputed that Arbor’s actions against Herrick and Gourlay Actions share the same plaintiff (Arbor), and are premised upon the same (allegedly mistaken) Gourlay Opinion which served as a critical basis for Arbor’s loan to East 51st Street, whose default allegedly caused Arbor significant monetary damages. Notably, no party offered any meaningful opposition to the consolidation of these two actions. Therefore, these two actions (the "Arbor actions") are consolidated for all purposes."
 

"Further, common questions of fact exist concerning the accuracy of the same zoning opinion allegedly rendered and/or endorsed by each of the defendants, i.e., that the "tower" could [*9]be built, as proposed, on the lots in question. This zoning opinion, allegedly endorsed by Cozen/Blank Rome (via Mitzner) in East 51st Street’s action, and by Herrick/Gourlay in Arbor’s actions, which caused East 51st Street to borrow, and Arbor to lend, funds to finance the Project is a critical, material fact shared in all actions. Mitzner’s legal advice in forming the opinion, with Gourley, that the "tower" could be built, as proposed, on the lots in question, is the common thread woven in the fabric of each action.

Critically, Arbor’s cases against Herrick and Gourlay stemming from the advice Herrick gave during the limited time period of the loan process, are not materially different from East 51st Street’s case against Cozen/Blank Rome, which involves advice Cozen/Blank Rome gave to build a project that "evolve[d] overtime." (Transcript, p.36). The advice given by Mitzner (of Cozen/Blank Rome) to East 51st Street at the outset of the Project and before the loan was pursued, later resurfaced when Mitzner allegedly consulted with Herrick to obtain the certification from Gourlay during the loan process. Contrary to Arbor’s contention, the issue of "did you [Herrick] give proper zoning advice or not" or "should you [Herrick] have told me that the advice you were giving me was aggressive" (Transcript, p. 36) is intertwined, and interdependent on whether the opinion given, i.e., the Gourley Opinion (allegedly created with the assistance of Mitzner of Cozen/Blank Rome), was proper, which is the very issue in the Developer’s case. As shown by the parties’ efforts at consolidated document and deposition discovery, there is a significant overlap of witnesses and documents common to each action.

And, although the parties on the plaintiffs’ side, and the parties on the defendants’ side, are different, it has been stated if "it is otherwise proper, a consolidation will not be denied because the parties involved are not identical" (MCC Funding LLC v Diamond Point Enterprises, LLC, 36 Misc 3d 1206(A), 954 NYS2d 760 (Table) [Sup. Ct., Kings County 2012] citing Philip Shlansky & Bro., Inc. v Grossman, 273 AD 544, 546 [1st Dept 1948]). Further, while it cannot be disputed that the plaintiff in the Developer Action was the "borrower," and the plaintiff in the Arbor actions was the "lender," each of which served different purposes with respect to the Project, each had the same interest in the legitimacy of the Opinion that "tower" could be built as planned and represented by Mitzner. Due to the interdependency and relationship of the different defendants (and Mitzner), whose alleged acts and omissions affected the coordination and financing of the Project, and who allegedly coordinated their opinions to complete the Project, consolidation is warranted, notwithstanding that the plaintiffs are the lender and borrower of this Project. "

What happens when two deserving parties vie over the same zero-sum pot of money?  In this case it is a hard-working attorney with a charging lien and the children in a child-support proceeding upstate.  In Piccarreto v Mura   2013 NY Slip Op 23241   Decided on July 3, 2013   Supreme Court, Monroe County, Judge Dollinger writes a thoroughly researched and well-reasoned discussion of whether the children are better off with attorneys getting paid for collections or with attorneys getting stiffed.
 

"The facts are undisputed. A default divorce occurred in 1993, the husband was ordered to pay child support, and the court in 1993 awarded a judgment for $25,226.72 in unpaid child support. Thereafter, in a series of events described in a prior opinion of this court, the parties engaged in repeated court appearances in the mid-1990s. When the dust settled, the original judgment of divorce remained in full force and effect. In 2012, the wife moved, originally in family court, to recover all the accumulated child support, which with accumulated interest, totaled $549,403.62 as of September 2011."

"There has been no determination what amount of the house sale proceeds are necessary to pay any child support arrears owed by the husband. This court has not heard proof on any claimed offsets against the child support obligation. Furthermore, this court is struck by the current legal position of the wife, who, after delaying 16 years, now seeks to recover child support. The children, who were the intended beneficiaries of the support, are either emancipated or nearly emancipated. In affidavits submitted earlier, the wife suggests she made applications for welfare and food stamps while living at her mother’s house at the time of the divorce in the mid-1990s, but there is no evidence before this court that the wife had incurred any financial consequences as a result of the husband’s failure to pay child support for 16 years. There is no evidence that the children suffered any deprivation because of the husband’s failure to pay child support. Against this background and during the midst of serious settlement negotiations, wife’s counsel moved to withdraw, citing friction with his client and her failure to communicate with him. The attorney also sought judgment for fees in the amount $30,545.91, and a charging lien under Section 475 of the Judiciary Law against the house proceeds set aside by the court under its earlier order.

In advance of the return date of the husband’s motion, the wife retained new counsel, who cross-moved to dismiss the attorney’s claim for a charging lien, and sought disgorgement of the sums advanced to both the wife’s former counsel, and husband’s counsel. Wife’s new counsel argued that those sums were erroneously paid from the "wife’s child support." Wife’s new counsel claims that the prior counsel cannot have a charging lien against child support, and cannot, under any circumstances, be paid attorney fees from the wife’s child support. He argues that the former attorney did not create any "new funds" on which the charging lien under Section 475 of the Judiciary Law could attach because the entire amount owed to the wife was child support and no liens are permitted against child support. Wife’s counsel also disputes the former attorney’s [*3]compliance with several portions of the New York rules of court. "

"Several New York courts have held that an charging lien does not attach to maintenance or alimony. Theroux v. Theorux, 145 AD2d 625 (2nd Dept. 1988). The line of authority regarding liens against maintenance goes back nearly a century to the New York Court of Appeals decision in Turner v. Woolworth, 221 NY 425, 430 (1917): "equity, confining the fund [for alimony] to the purposes of its creation, declines to charge it with liens which would absorb and consume it." See also Indell v. Tabor, 185 NY 873, 874-75 (1920) (attorney not entitled to reach client’s alimony to satisfy his judgment for attorney fees). On the question of the charging lien asserted against child support, there is less judicial authority from New York’s appeals courts. The Appellate Division, Fourth Department suggested that no retaining lien could be asserted against child support arrears. Schelter v. Schelter, 206 AD2d 865, 614 NYS2d 853, 854 (1994) ("if the funds were treated as payments for child support, we would conclude that such payments are not subject to an attorney’s retaining lien").[FN2] While Schelter v. Schelter involved a retaining lien, nonetheless it provides some [*5]indication that attorneys’ liens cannot be enforced against arrears in child support. But the Fourth Department’s omission in Schelter v. Schelter to cite any then-existing New York authority, the acknowledged difference between the common law retaining lien and the broad reach of the statutorily-mandated charging lien in New York leaves the question still somewhat undefined."

Read on in the case for Judge Dollinger’s discussion of California and other states’ law on this issue and how he comes to a compromise.

Up until now, we had always thought the question was answered and no was no longer in doubt.  One need not exhaust all appeals before starting a legal malpractice case.  In Grace v Law  
2013 NY Slip Op 05383  Released on July 19, 2013 Appellate Division, Fourth Department  we were surprised to see the 4th department call this a novel point of law.  The answer is still no.
 

"Initially, we reject defendants’ contention that plaintiff waived or abandoned his legal malpractice claim by voluntarily discontinuing what remained of his medical malpractice action and failing to take an appeal from District Court’s November 2010 order dismissing the bulk of his claims. In support of that contention, defendants primarily rely upon this Court’s decision in Rupert v Gates & Adams, P.C. (83 AD3d 1393, 1396), in which we concluded that the plaintiff waived his right to raise certain allegations of legal malpractice in the context of a matrimonial action based upon his execution of a settlement agreement. Specifically, we concluded that, although certain allegations of legal malpractice had merit, Supreme Court in that case "did not err in granting defendants’ motion concerning those alleged errors because they could have been corrected on an appeal from the final judgment in the matrimonial action, and plaintiff consented to the dismissal on the merits of any appeal in the matrimonial action as part of the global settlement resolving a bankruptcy proceeding in which he was involved. In so doing, plaintiff precluded pursuit of the very means by which defendants’ representation of plaintiff in the matrimonial action could have been vindicated . . . We therefore conclude that plaintiff, by virtue of his global settlement, waived the right to raise those shortcomings in this legal malpractice action" (id. [emphasis added]). "

"Although the precise question presented herein appears to be an issue of first impression in New York, we note that several of our sister states have rejected the per se rule advanced by defendants herein (see e.g. MB Indus., LLC v CNA Ins. Co., 74 So 3d 1173, 1176; Hewitt v Allen, 118 Nev 216, 217-218, 43 P3d 345, 345-346; Eastman v Flor-Ohio, Ltd., 744 So 2d 499, 502-504; Segall v Segall, 632 So 2d 76, 78). As has been noted, such a rule would force parties to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action, thereby increasing the costs of litigation and overburdening the court system (see Eastman, 744 So 2d at 504). The additional time spent to pursue an unlikely appellate remedy could also result in expiration of the statute of limitations on the legal malpractice claim (see MB Indus., 74 So 3d at 1181). Further, requiring parties to exhaust the appellate process prior to commencing a legal malpractice action would discourage settlements and potentially conflict with an injured party’s duty to mitigate damages (see Crestwood Cove Apts. Bus. Trust v Turner, 164 P3d 1247, 1254; Eastman, 744 So 2d at 504). "

Sometimes, Supreme Court of the State of New York acts like an appellate court in legal malpractice cases.  In Pasquale v Heppt 2013 NY Slip Op 31560(U) July 15, 2013
Supreme Court, New York County Docket Number: 112890/2011 Judge: Doris Ling-Cohan we see one such example.  Note that plaintiff argues that a decision of Queens County shows that the attorney committed legal malpractice, and Judge Ling-Cohan comes to the completely opposite conclusion, acting, in essence as an appellate court.

"This action arises out of the defendant’s legal representation of plaintiff Lillian De Pasquale (Lillian) in an underlying action involving the disputed estate of her late husband, Joseph De Pasquale (Joseph), as well as the legal representation of plaintiff Vincent De Pasquale (Vincent), son of Lillian, for employment and contract claims in a separate matter.

Lillian was the executrix of Joseph’s estate. In 2005, Daniel De Pasquale (Daniel), brother of Joseph, commenced an action against Lillian in Supreme Court, Queens County (the Estate Action). In March 2009, Lillian agreed to settle the Estate Action with Daniel, and the settlement was entered into on the record before the court. In April 2009, Lillian and Vincent engaged the legal services of defendant, and allegedly paid him a retainer of $5,000 each, for a total of $10,000. Lillian allegedly retained defendant, a f t e r a settlement was reached in the Estate Action, which was entered on the record, to complete the settlement of the Estate Action, while Vincent allegedly
retained defendant to research and litigate claims relating to employment and contractual issues in a separate matter.

After judgment was entered, the Honorable Orin R Kitzes,Justice of the Supreme Court, Queens County, denied Lillian’s order to show cause to vacate the settlement, and stated in his decision that the proper procedure was to bring a plenary action. Lillian alleges that she had to pay post-judgment statutory interest on the judgment, as well as statutory poundage to the Marshal, as a result of defendant’s act of filing an order to show cause, rather than filing a plenary action. Lillian alleges claims of legal malpractice and breach of contract.

In regard to Lillian’s claim for legal malpractice,the documentary evidence presented by defendant establishes that filing an order to show cause instead of a plenary action was not the proximate cause of Lillian’s damages. Regardless of whether defendant filed a plenary action or not, the settlement payment was due June 8, 2009. After payment was not made on that date, as stated by Justice Kitzes, the plaintiff in the Estate Action engaged the services of the Marshal after taking "various actions to compel [Lillian] to appear for depositions to determine her assets and for those assets to not be dissipated” (Furman affirmation in support of motion to dismiss, exhibit E). Thus,
it was not the filing of an order to show cause versus a plenary action, which caused the poundage owed to the Marshal, rather, it was Lillian’s failure to timely pay the settlement amount, and
the actions of Lillian afterwards, which caused the poundage and interest to accrue. It is noted that"[s]tipulations of settlement are favored by the courts and not lightly cast
aside … This is all the more so in the case of ‘open court’ stipulations … within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process.  Only where there is a cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation.. .". Hallock v. State of New York, 64 NY2d 224, 230 (1984) (citations omitted). Thus, Lillian’s claim for legal malpractice is dismissed."
Only where there is cause sufficient

Violation of a disciplinary rule alone is insufficient to uphold a legal malpractice cause of action.  We see, in Schlam Stone & Dolan, LLP v Poch   2013 NY Slip Op 51176(U)   Decided on July 9, 2013   Supreme Court, New York County   Hagler, J. how a cause of action for legal malpractice founders on the inability to link the violation with ascertainable damages. 
 

"Arfa and Shpigel were members of various entities that owned and managed various properties in the Bronx, New York. They were the sole members and owners of Ocelot Capital Management LLC ("OCM"). (Exhibit "A" attached to the Affidavit of Howard R. Poch, sworn to on December 23, 2011, in Opposition to the Motion ["Poch Aff."].) OCM partnered with Eldan-Tech Inc. ("Eldan") to form Ocelot Portfolio Holdings LLC ("Ocelot Portfolio") to pursue real estate ventures. Eldan retained an eighty percent interest and OCM had a twenty percent interest in Ocelot Portfolio. However, OCM was the managing member of Ocelot Portfolio. (Id.) Ocelot Portfolio was sole member and owner of entities known as OCG I, LLC, ("OCG I") and OCG V, LLC ("OCG V"). OCG I owned 1268 Stratford Avenue, Bronx, New York, and OCG V owned 1524 Leland Avenue, Bronx, New York. (Exhibit "B" attached to the Poch Aff.) Ocelot Properties Management, Inc. ("OPM"), was the entity that managed the properties for OCG I and OCG V. Ocelot Capital Group, LLC ("OCG") owned OPM, which was controlled solely by Arfa and Shpigel. (Exhibit "C" attached to the Poch Aff.) "

"In late 2007, Shafir had discussions with Poch to retain him as OCM’s landlord-tenant counsel. (Exhibit "E" attached to the Poch Aff.) The negotiations continued in the beginning of 2008, when the parties finally agreed via e-mail to Poch’s retention at $5,500 per month to handle all of OCM’s landlord-tenant disputes. (Exhibit "G" attached to the Poch Aff.) However, no formal written retainer agreement was executed by the parties.

Poch then took over the old inventory of cases and started new ones. The custom and practice between the parties was that Poch communicated with Mendez and Aryeh on these cases. (Exhibits "H," "I," and "M" attached to the Poch Aff.) As part of his duties, Poch defended the various OCG entities in proceedings in Housing Court that the Department of Housing and Preservation and Development of the City of New York ("HPD") brought against them to repair certain violations in various buildings ("HP Proceedings"). Poch settled these HP Proceedings with consent orders requiring payment to HPD of civil penalties and fines by a date certain which would increase ten-fold if not timely paid. Poch advised Mendez and Aryeh of at least four defaults in payment and resulting increased penalties. (Exhibits "O" and "P" attached to the Poch Aff.) "

"In this case, plaintiffs mainly rely on the uncontroverted fact that Poch never communicated directly with Arfa and Shpigel before executing the Consent Orders in the HP Proceedings. In support thereof, plaintiffs offer the expert opinion of Bruce Green, Esq. ("Green"), who opines that Poch’s failure to communicate directly with Arfa and Shpigel violated the former Disciplinary Rule 6-101, which consequently resulted in a breach of his duty or negligence. Plaintiffs conclude that Poch’s failure to communicate itself constitutes legal malpractice. While Poch’s failure to communicate directly with Arfa and Shpigel may have been unwise in hindsight, or said conduct may have even been violative of a disciplinary rule, that alone is insufficient to give rise to an actionable cause of action. (Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193 [1st Dept 2003].)

Indirect communication may have been acceptable under these circumstances as defendants allege that there was a prior custom and practice wherein Arfa and Shpigel specifically delegated all communications with Poch to their designated agents, Shafir and Aryeh. It is noteworthy that Arfa and Shpigel’s designated agents forwarded the petitions, which included them as individual respondents, to Poch to seemingly defend the respondents in the HP Proceedings. It is common and customary in landlord-tenant practice, for the same attorney (i.e., Poch), to represent both the corporate respondents (e.g., OCG I and OCG V), and related individual respondents such as corporate officers or agents acting in their official duties (i.e., Arfa and Shpigel), in HP Proceedings. (Affidavit of Greg Calabro, Esq., dated December 23, 2011 ["Calabro Aff."] at ¶ 6). (See, also, Cooke v Laidlaw Adams & Peck, Inc., 126 AD2d 453 [1st Dept 1987].) At the very least, Arfa and [*5]Shpigel "ratified the authority of Poch to enter into the consent order[s] by receiving the benefit of its terms and failing to raise any objection for more than one year from the date of the order[s]." (Orders of the Appellate Term, First Department decided April 21, 2011, 2011 NY Slip Op 50707[U] and 2011 NY Slip Op 50708[U], attached as Exhibit "O" to the Hitchcock Aff.) As such, Poch may have been permitted to communicate through intermediaries rather than in a direct manner. "

"Plaintiffs also have failed to demonstrate the second element of proximate cause. They have failed to demonstrate by expert or any other testimony that "but for" the defendants’ alleged negligence Arfa and Shpigel would have obtained a favorable result or not sustained damages. On this limited record, it appears that entry of judgments against Arfa and Shpigel occurred as a result of OCG I and OCG V’s failure to correct hundreds of violations and pay negotiated civil penalties as promised in the Consent Orders. HPD obtained personal liability against Arfa and Shpigel for failure to correct housing violations because the term "owner" is broadly construed as any person who is directly or indirectly control of the subject building as defined in Multiple Dwelling Law § 4(44) and the Housing Maintenance Code Section 27-2004(45). Therefore, personal liability may attach to a corporate officer who is construed to be an agent irrespective if the officer is or is not involved with the operation of the subject building. This is a strong motivating factor to quickly correct violations or the officers may be exposed to personal liability notwithstanding the usual corporate protections. In other words, responsible officers can not turn a blind eye or hide behind a corporate shield, but they must timely correct violations that are deemed a danger to life, health or safety. (Dept. of Housing Preservation and Development of the City of New York v Livingston, 169 Misc 2d 660 [App Term 2d Dept 1996]; Dept. of Housing Preservation and Development of the City of New York v Chana Realty Corp., NYLJ, June 7, 1993 [App Term 1st Dept].) Moreover, plaintiffs do not address a glaring inconsistency in their argument in that, had Poch not appeared for Arfa and Shpigel in the HP Proceedings, a default judgment would nonetheless have been entered against them due to their failure to appear. (Calabro Aff., at ¶ 11.) "

Plaintiff owes three banks, and one of them is really trying to recover its money.    Plaintiff recently transferred his home ownership to his wife.  Plaintiff goes to an attorney to discuss how to shield an upcoming inheritance from his father.  The attorney is willing to take two of the three cases, but not the third, because it represents the bank which is really trying to recover its money.  Plaintiff discloses all his financials to the attorney.

When another attorney is able to settle the bank debt for 35%, all seems good.  Then the bank calls and says, "no deal,"  It seems that they know about the house and the inheritance.  How?

 In  Rubinstein v Kriss & Feurstein  2013 NY Slip Op 31575(U)  July 12, 2013  Sup Ct, NY County
Docket Number: 653136/12  Judge: Saliann Scarpulla we see plaintiff lose the case. 

"1. Negligence
In the first cause of action, Plaintiff alleges negligence based on Defendants’ violation of Rule 1.6 of the Rules of Professional Conduct. I grant Defendants’ motion to dismiss this claim. A private cause of action cannot be based on a violation of the professional rules of conduct. Weintraub v. Phillips, Nizer, Benjamin, Krim & Balian, 172 A.D.2d 254, 254 (1 st Dep’t 1991). 

2. Legal Malpractice
To prevail in a legal malpractice action, a plaintiff must demonstrate that he or she would have succeeded on the merits of the underlying action "but for" the attorney’s negligence. Aquino v. Kuczinski, Vila & Assoc., P.c., 39 A.D.3d 216,218 (lst Dep’t 2007).
Here, I grant Defendants’ motion to dismiss the legal malpractice claim. Based on the documentary evidence and affidavits submitted, Defendants demonstrated that Plaintiff does not have a cause of action for legal malpractice because Defendants did not reveal any confidential information about Plaintiff to Valley National Bank. Defendants submitted an affidavit from Valley National Bank’s vice president David Jacques, in which Jacques states that the bank’s knowledge of Plaintiffs financial situation came from search of public records, conversations with former employees, or information provided Plaintiff himself. Defendants also demonstrated that the information about Plaintiffs house and the inheritance from his father was available in public records prior to the initial client meeting between Plaintiff and Defendants on April 23, 2010.
Plaintiff claims that issues of fact exist as to whether Skurman learned the information about his financial situation from Defendants. However, Plaintiff fails to raise a material issue of fact. Although Schoenwald stated in his affidavit that Valley National Bank’s lawyer Paul Skurman informed him over the phone that "he had heard that Mr. Rubinstein [Plaintiff] had transferred his house into his wife’s name and was expecting an inheritance from his fathers estate" – this statement does not in any way establish that Skurman learned this information from Defendants. Plaintiffs allegation  that Defendants revealed confidential information to Valley National Bank is vague and conclusory, and therefore his legal malpractice claim must be dismissed. Lester v. Braue, 25 A.D.3d 769, 769 (Ist Dep’t 2006).

For the above reasons, I grant Defendants’ motion to dismiss the second cause of action for legal malpractice.
 

3. Breach of Fiduciary Duty
An "attorney stands in a fiduciary relationship to the client which relationship is imbued with ultimate trust and confidence that imposes a set of special and unique duties, such as maintaining confidentiality." Beltrone v. Gen. Schuyler & Co., 252 A.D.2d 640, 641 (3d Dep’t 1998); Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1,9 (Ist Dep’t 2008).
Here, I grant the Defendants’ motion to dismiss the breach of fiduciary claim because it is duplicative of the legal malpractice claim. Plaintiff claims that Defendants breached their fiduciary duties by revealing confidential information and he seeks economic damages resulting from the breach. This is a duplicative claim that must be dismissed because it is based on the same allegations as the legal malpractice claim and seeks identical relief. Nevelson v. Carro, Spanbock, Kaster & Cuiffo, 290 A.D.2d 399, 400 (Ist Dep’t 2002)."

Some of the defendants ended up in Federal prison, and some ended up being sued.  Plaintiff ended up owing on a mortgage and not owning the house.  It’s all fallout of the mortgage crisis and now will go to trial.  Defendant attorney Dash was suspended for 5 years and the AD found that he co mingled his IOLA funds and aided a suspended attorney in the practice of law.

It’s a mess.  Weston v 35 Plank Rd Realty Corp.  2013 NY Slip Op 31417(U)  July 2, 2013
Supreme Court, Richmond County  Docket Number: 104141/08  Judge: Joseph J. Maltese  "In this case the plaintiff was purportedly approached by Simon to help prevent a bank from foreclosing on property owned by the defendant Doud Elder. The plaintiff states that she never had any dealings with Doud Elder. In connection with this transaction, the plaintiff was found to qualify for a mortgage. Once it was determined that the plaintiff could qualify for a home loan, Home Savers promised payment in the amount of $10,000 to the plaintiff for her participation. According to the plaintiff she would obtain a mortgage for the purchase of Doud Elder’s home at 35 Plank Road, Staten Island, New York. Thereafter, pursuant to a side agreement executed at the closing Home Savers or Elder would make the mortgage payments.

The home closing took place on February 3, 2006. The defendant, Argent Mortgage Company, LLC, (“Argent”) provided and recorded a mortgage on the property. However, the defendant Reliant Abstract & Settlement Corp., failed to record the deed transferring 35 Plank Road, Staten Island, New York from Doud Elder to Lisa Weston. While Argent issued a mortgage in the name of Lisa Weston, not one payments has been made on that account. As a result of the foregoing facts, Lisa Weston remains financially obligated on the mortgage, but does not have a recorded ownership in the property. Consequently, Doud Elder continues to reside in the premises and not pay a mortgage. Furthermore, without being a record owner of the property, Weston is unable to evict Elder from the premises.

The Dash Defendants do not dispute that a fiduciary duty existed with the plaintiff. Instead, the Dash Defendants argue that plaintiff has not provided any evidence that constitute a breach of fiduciary duty. A breach of fiduciary duty arises from the violation of a relationship of trust and confidence.6 Here, Dash’s own testimony causes doubt as to whether he fully prepared  to conduct the real estate closing at issue here. Consequently, this cause of action must stand. The plaintiff’s nineteenth cause of action for legal malpractice requires a showing that the defendant attorney failed to exercise the ordinary reasonable skill and establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney’s breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages.7 Once again, the statements of Jan Dash during his deposition raise a question as to whether he properly conducted the real estate closing. Consequently, this cause of action must stand."