Its not always easy to say when the last date upon which an attorney renders service to a client, nor when the statute of limitations commences. . is it on the day that a defective security agreement is prepared? is it on the day that the security agreement is given to debtor? In this case, its no earlier than the day when the last signature is executed.

Americana Capital Corp. v Nardella 2012 NY Slip Op 04927, Appellate Division, First Department determines the date upon which a malpractice claim arose.
 

"Plaintiff’s legal malpractice claim was not barred by the statute of limitations (see CPLR 214[6]). Plaintiff alleges that the deceased negligently drafted a security agreement preventing plaintiff, as the creditor, from being able to enforce the agreement as against the debtor once the debtor defaulted.

Plaintiff’s legal malpractice claim accrued no earlier than when the agreement was executed, which occurred on November 29,
2002, the date of the last signature on the agreement (see McCoy v Feinman, 99 NY2d 295 [2002]), and this action was commenced less than three years later. "
 

An interesting article in today’s New York Law Journal discusses the effects of checklists. Brook Boyd writes: "Lawyers can dramatically improve the quality, efficiency, and speed of their work by using "smart" checklists that are digitally integrated with their forms, and that reflect the complexity of their practices. But there are also other very important reasons to use these "smart" checklists and integrated forms."

He discusses the use of checklists in piloting.  Even in the least sophisticated single engine Cessna there are at least 5 checklists, covering normal operation, take off, landing, weight and balance requirements and emergencies.  As he discusses, these checklists save lives.  In lawyering, they save mistakes.

"Checklists Protect Lawyers Against Impaired Judgment Caused by Stress. But there is a practical problem. It takes time to make a good checklist, and clients will not pay for developing an internal law firm form that is intended for general use. So we take five minutes, and just copy a similar form from another deal that closed last week. Why invest any time in developing detailed checklists for any matter when we have extensive experience in similar matters, and every minute billed to preparing a detailed checklist, or reading it, increases the cost to the client?

Lawyers also have a much bigger problem, which we are not even consciously aware of. We are instinctively overconfident.26 We think we know more than we do, and we minimize the risk of error.27

Worse, we are especially likely to make errors when we are under time pressure, multitasking,28 anxious about impressing important clients,29 or otherwise stressed—in other words, a typical day for a lawyer. In these stressful situations, we also lose some self-control, react aggressively to provocations,30 are more gullible,31 and make poor judgments, just as we do when we have had a few drinks or too little sleep.32 We are also much more likely to see these deficiencies in others than ourselves.33

Nobel Laureate Daniel Kahneman illustrated the dangers of multitasking when he described a famous experiment based on a "short film of two teams passing basketballs. The viewers of the film are instructed to count the number of passes made by one team…. Halfway through the video, a woman wearing a gorilla suit appears, crosses the court, thumps her chest, and moves on. The gorilla is in view for 9 seconds. Many thousands of people have seen the video, and about half of them do not notice anything unusual. It is the counting task—and especially the instruction to ignore one of the teams—that causes the blindness. No one who watches the video without that task would miss the gorilla…. [W]e can be blind to the obvious, and we are also blind to our blindness."

Barely submerged below the decisions of trial and appellate courts is the fear that if legal malpractice litigation is given full rein, there will be a legal malpractice case which immediately follows every trial of any nature. After all, the one thing that legal malpractice always has are claims of attorney misrepresentation, and every trial has one or more attorneys. So, in Kleinser v Astarita 2012 NY Slip Op 01130 ; Appellate Division, First Department we see such a situation. Plaintiff sues and loses a case, and then sues and loses a legal malpractice.
 

"We need not decide the statute of limitations issue, because even if timely commenced, plaintiff failed to raise an issue of fact as to his claims of legal malpractice and breach of contract. Plaintiff’s contention that defendants did not place before the trial court in the underlying action the evidence of his ownership interest in the "47BH Account" is unsupported in the record. The trial court in the underlying action expressly found that plaintiff had a 1/3 interest in the 47BH Account. Moreover, the court explained, in detail, that that 1/3 interest entitled plaintiff to recover only $37,108, not the much greater sums he sought. Plaintiff does not argue that the court’s calculation of damages was erroneous or a result of defendants’ negligence. Hence, he failed to show that any negligence on defendants’ part proximately caused him to recover less than he was otherwise entitled to (see Brooks v Lewin, 21 AD3d 731, 734 [2005], lv denied 6 NY3d 713 [2006]). To the extent plaintiff argues that defendants did not sufficiently emphasize his ownership in the 47BH account, the argument is unavailing, since an insufficient emphasis would be, "at most, a mere error in professional judgment not rising to the level of legal malpractice" (see Geller v Harris, 258 AD2d 421, 421 [1999]; Rubinberg v Walker, 252 AD2d 466, 467 [1998]).
As to his breach of contract claims, plaintiff failed to present evidence establishing the term of his alleged oral agreement with defendant Martin Kaplan whereby Kaplan agreed that defendant Gusrae Kaplan & Bruno would prosecute all appeals from the underlying judgment for no more than $50,000. "

Attorney retainer agreements often seem to be contracts of adhesion…a term we rarely see post-law school.  Client comes to attorney at many disadvantages.  Client is in trouble, is coming to a "wise man" seeking help, knows that client needs to pay, and is subject to a serious disparity between their bargaining positions.  Nevertheless, the vast majority of attorney-client relationships work out just fine.  This one didn’t.  The New York Law Journal’s Christine Simmons reports  that Justice Jeffrey Spinner in Suffolk County has dismissed a fee claim by Bryan L. Salamone & Associates:  ""Counsel has the insufferable temerity to actually admonish this Court for expressing its distress over the terms and conditions of Plaintiff’s over-reaching retainer agreement (clearly a contract of adhesion on its face), baldly stated that all of the terms thereof ‘…are all within the ambit of the law,’" Spinner said in response. "

The Salamone firm brought a collection suit in July 2012 against Melissa Cohen for $52,701: $10,540 in collection suit fees and $42,161 in fees and interest in an underlying divorce "at the rate of 18 (percent)" from February 2012.

"Spinner cited a 1985 case, Eikenberry v. Adirondack Spring Water, 65 NY2d 125, which found an agreement to pay attorney fees was subject to General Obligations Law §5-501 and its interest rate ceiling of 6 percent per year.

Since the Salamone agreement provided for interest at a rate of more than 6 percent a year, "the said agreement is found by this Court to be usurious," Spinner said in the May ruling.

He found the agreement unenforceable, reversed summary judgment in favor of Cohen and dismissed the law firm’s complaint with prejudice." "But in his ruling Thursday, Spinner said he again reviewed the firm’s billing and found it to be "facially outrageous and certainly bereft of reasonableness" while Cohen’s assertions are "factually at odds" with Salamone’s claims.

The judge also said the firm’s court papers used "an unpleasant, somewhat sarcastic and clearly condescending tone throughout, which, counsel is warned, borders upon conduct that may well be sanctionable."

Spinner said Wan scolded the court for failing to provide statutory and common law bases for certain findings, "even though the character of and deficiencies within the retainer were so painfully obvious on their face." "

In Dombrowski v Bulson   2012 NY Slip Op 04203 [19 NY3d 347]   May 31, 2012   Lippman, Ch. J.
Court of Appeals decided that incarceration – loss of liberty was not an economic damage, and was "non-pecuniary."  It wrote: "We see no compelling reason to depart from the established rule limiting recovery [*4]in legal malpractice actions to pecuniary damages. Allowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions. We therefore hold that plaintiff does not have a viable claim for damages and the complaint should be dismissed in its entirety. "

One might think that the Court of Appeals’ clear statement would hold true in all cases, but there are many slips "between the cup and the lip."   In D’Alessandro v Carro  2013 NY Slip Op 51275(U)  Decided on July 25, 2013  Supreme Court, New York County Hagler, J., a motion to dismiss on this basis goes awry.
 

Plaintiff sued for legal malpractice claiming that his appellate counsel negligently failed to raise a speedy trial issue, resulting in many years of incarceration.  When defendants moved to dismiss, Supreme Court denied the motion citing the AD decision in Dombrowsky, soon to be reversed by the Court of Appeals.  A notice of appeal was filed, and after the Court of Appeals decision, the appeal was not pursued.

Now, on a new motion to Supreme Court, defendants find that they cannot get the case dismissed. "While defendants are correct that every trial court has the inherent discretion to change its own decisions, that is only true prior to an appellate determination on the merits of the case. In other words, this Court no longer can grant renewal of the Prior Order due to the subsequent order of the Appellate Division which operated as a dismissal of the appeal on the merits. However, the Appellate Division is not so constrained to review its own dismissal of the Prior Order for lack of prosecution.

Moreover, defendants have not provided any reason for their failure to forestall the dismissal of the appeal and the Court’s exercise of its discretion. Defendants had many options to avoid this result such as: (1) timely perfecting the appeal, (2) seeking an extension to perfect the appeal, or (3) simply withdrawing the appeal. Instead, the Appellate Division was required to issue an order dismissing the abandoned appeal for want of prosecution.

Under these circumstances, this Court does not have the discretion to grant defendants’ motion for renewal after the Appellate Division has dismissed the appeal of the Prior Order for lack of prosecution, which operated as a dismissal on the merits. "

Client settles case and then turn around and sues attorney who settled the case for client, or worse (for the attorney) client settles case on his own, and then sues attorney who was already off the case. Can a client sue for legal malpractice after settling the case? The answer is yes, if the settlement was effectively compelled by the attorney’s malpractice.

Put in a more elegant way, the Appellate Term decided Garg v Wigler 2012 NY Slip Op 50494(U)
Appellate Term, First Department:

"Accepting plaintiff’s allegations as true, and according them the benefit of every favorable inference, as we must in the context of a motion to dismiss on the pleadings (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we find the complaint, as amplified by plaintiff’s verified answers to defendant’s interrogatories, sufficient to state a cause of action for legal malpractice. The record so far developed raises triable issues as to whether defendant-attorney’s prior representation of plaintiff — including defendant’s acknowledged failure to timely file an administrative appeal following the denial of plaintiff’s claim for disability benefits — was so deficient as to compel plaintiff to settle the underlying federal lawsuit (see Jones Lang Wootten USA v LeBoeuf, Lamb, Green & MacRae, 243 AD2d 168, 175 [1998], lv dismissed 92 NY2d 962 [1998]; Whitman & Ransom v Revson, 220 AD2d 321 [1995]). "Settlement, when compelled by an attorney’s breach of the standard of care, does not present an intervening cause so as to bar a malpractice action" (Jones Lang Wooton USA, at 175). We find unavailing defendant’s contention that there are no issues of fact as to whether its malpractice, if any, caused plaintiff damages. "

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. "