While we understand the principal, it is nevertheless shocking to read a case in which the defendant attorney admits that they blew the statute of limitations, but argue that plaintiff had no case anyway.  It just seems wrong, somehow. 

In Hagensen v Ferro, Kuba, Mangano, Skylar, Gacovino & Lake, P.C. 2013 NY Slip Op 04980
Decided on July 2, 2013   Appellate Division, First Department   the court rejected a motion for summary judgment. 

"Defendant failed to timely serve the pleadings in an underlying personal injury action it commenced on plaintiff’s behalf, and the action was dismissed on statute of limitations grounds. Defendant moved for summary judgment in the instant action, alleging that plaintiff could not establish the proximate cause element of the malpractice claim (see generally Wo Yee Hing Realty, Corp. v Stern, 99 AD3d 58, 62-63 [1st Dept 2012]). Defendant argues that plaintiff’s evidence failed to raise a triable issue that "but-for" defendant’s negligence, plaintiff would have been successful in the underlying action.

Plaintiff’s deposition testimony that she fell on loose gravel and/or small rocks on the paved surface of the driveway of the premises she rented, and that the area of the driveway on which she fell was somewhat obscured from view by a parked car, raises factual issues as to whether the cause of her fall was attributable to the loose gravel condition. Any inconsistencies in plaintiff’s testimony as to the cause of her fall raise credibility issues for the jury (see Cuevas v City of New York, 32 AD3d 372, 373 [1st Dept 2006]).

Defendant’s argument that plaintiff’s preexisting medical conditions compromised her ability to ambulate and was the cause of her fall is not supported by the evidence and, in any event, the testimony by plaintiff alone raises triable issues as to whether her fall was attributable to the loose gravel/small rock condition on the driveway. There can be more than one proximate [*2]
cause of an accident, and a plaintiff need not exclude every other possible cause apart from the landowner’s alleged breach of its duty owing to the plaintiff (see Lopez v 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 AD2d 230, 232 [1st Dept 2002]). "

The interplay of bankruptcy and personal injury or legal malpractice cases is complicated. Basically, once one files a Chapter 7 petition, all assets, including the penny in petitioner’s pocket becomes part of the Bankruptcy estate. That estate includes any personal injury claims, and even any future legal malpractice claims. If they are listed in the schedules, then the trustee has the right to litigate and collect for the creditors. If they are not, then, for the most part, they will be lost to the plaintiff. Here, in Santonocito v Moskowitz, Passman & Edelman; 2012 NY Slip Op 30580(U)
Supreme Court, New York County ;Docket Number: 114418-2010; Judge: Judith J. Gische we see a plaintiff who has a good legal malpractice case lose it all.

"On June 1,2004, prior to filing the personal injury action, plaintiff and his wife flied a voluntary petition for bankruptcy under Chapter 7 of the bankruptcy ("bankruptcy petition"). The Santonocitos brought the petition pro-se, but a legal services company (We the People) prepared and filed the petition on their behalf, charging them a $229 fee.

Schedule B of the bankruptcy petition requires that the debtor "list all personal property of the debtor of whatever kind." Item 20 requires that the debtor lid "Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims. Give estimated values." Item 17 of Schedule B requires the debtor to also list "Other liquidated debts owing to debtor, including tax refunds." The Santoncitos response was that they had "Proceeds from Auto Accident"

"When a debtor files for bankruptcy protection, this creates an "estate’ comprised of ‘ail legal and equitable interests of the debtor as of the commencement of the case (1 1 USC 541 [a][1]. A pre-petition injury qualifies as a legal interest, within the meaning of the statute (In re Corbi, 149 B.R. 325,329 [Bankr.E.D.N.Y.l993]) and a debtor is required to disclose in its bankruptcy petition any causes of action that would be brought by the debtor (Kunica v. St. Jean Financial Inc., 233 8.R. 46 [SDNY l999Q]). This is for the benefit of the creditors (Kunica v. St. Jean, supra). If the debtor fails to list a claim, "an unscheduled claim remains the property of the bankruptcy estate… Crawford v. Franklin Credit Management Corp., ., -B .R.–, 201 1 WL 1118584 [S.D.N.Y. 2011; also Bromley v. Fleet, 240 AD2d 611 (2d Dept 1997), Consequently, the debtor lacks standing to bring a lawsuit in connection with such claims after emerging from bankruptcy, and if s/he does, the lawsuit must be dismissed."
 

Some years ago the Legislature overruled the Court of Appeals, and passed CPLR 214(6). That statute was interpreted to say that all claims against an attorney (some other professionals) were subject to a 3 year statute, whether the claim was made in negligence or contract.

Here, in Walter v Castrataro 2012 NY Slip Op 02676, Appellate Division, Second Department we see a plaintiff unsuccessfully attempting to get the benefit of a typical 6 year statute for breach of contract.

"On April 16, 2003, the plaintiff signed a retainer agreement, wherein the defendant agreed to represent her in a matrimonial action. By letter dated July 1, 2003, the plaintiff terminated the defendant’s representation. On June 11, 2009, the plaintiff commenced this action, alleging in [*2]her complaint that the defendant "negligently failed to represent the Plaintiff and breached her duties" and "[a]s a result of the Defendant’s breach of contract the Plaintiff has suffered substantial damages[.]" The defendant moved, inter alia, for summary judgment dismissing the complaint on the ground that the complaint sounded in legal malpractice and, thus, was barred by the applicable three-year statute of limitations (see CPLR 214[6]). In her opposing affidavit, the plaintiff stated that she "may have inadvertently misused language on the Summons and Complaint. However, the object of the said application served upon Defendant asserts breach of contract verbatim and notably, Plaintiff never uses the term Legal malpractice" (emphasis in original). In her affidavit, the plaintiff alleged numerous "breaches" by the defendant in connection with the underlying matrimonial action, including a failure to file an application for pendente lite support, failure to move to vacate a certain forensic report, and failure to "modify" a certain stipulation. The Supreme Court, among other things, granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred.

The complaint is "nothing more than a rephrasing of the claim of malpractice in the language of breach of contract" (Mitschele v Schultz, 36 AD3d 249, 252). The defendant satisfied her initial burden by demonstrating, prima facie, that the complaint sounded in legal malpractice and that the three-year statute of limitations began to run no later than July 1, 2003 (see Sladowski v Casolaro, 84 AD3d 1056, 1057). In opposition, the plaintiff failed to raise a triable issue of fact, e.g., by submitting proof demonstrating that the statute of limitations was tolled by the continuous representation doctrine, or otherwise (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, the Supreme Court properly concluded that the action, commenced almost six years after the alleged legal malpractice was committed, was barred by CPLR 214(6), and, thus, properly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred. "
 

Client trips and falls because of a defect in a parking lot. Client goes to attorney who fails to commence the case within the statute of limitations. Client sues attorney who comes up with very inventive defenses. What happens to the case on summary judgment?

inDuque v Perez 2012 NY Slip Op 03593, Appellate Division, Second Department plaintiff wins, so far. "The plaintiff Jairo Duque (hereinafter Duque) allegedly slipped and fell in a hole in a parking lot at a medical facility in Middletown. He and his wife allegedly retained the defendant attorneys to commence a personal injury action on his behalf (hereinafter the underlying action). After the statute of limitations had expired, the medical facility filed an answer containing an affirmative defense that it did not own the property. The defendant Allan Kuslansky presented the plaintiffs with a general release, which they executed, and informed them that Duque had "a better medical malpractice case" against the doctor who, after the accident, performed surgery on Duque’s knee. The underlying action was discontinued. "

"Here, Perez and Lewis failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, as the evidence they submitted failed to eliminate a triable issue of fact as to whether there was an attorney-client relationship between them and the plaintiffs (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Nelson v Roth 69 AD3d 912, 913). Moreover, contrary to their contention, Perez and Lewis failed to establish, prima facie, that the legal malpractice cause of action was time-barred (see 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704, 705). Further, all of the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, since they failed to submit evidence supporting their contention that their alleged malpractice did not cause the plaintiffs to sustain any losses because the plaintiffs would not have been able to establish that the premises owner had actual or constructive notice of the alleged defective condition.

Accordingly, since the defendants failed to meet their prima facie burden on their motions for summary judgment, those branches of the defendants’ respective motions which were for summary judgment dismissing the cause of action alleging legal malpractice insofar as asserted against each of them were properly denied, regardless of the sufficiency of the plaintiffs’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). "
 

Insurers tell insureds that legal fee cases are the surest way of starting a legal malpractice case. In Blank Rome, LLP v Parrish ;2012 NY Slip Op 00820 ;Decided on February 7, 2012 ;Appellate Division, First Department we see how this develops.

"Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered on or about March 25, 2011, which, in an action to recover unpaid legal fees, denied the motion of third-party defendants Bouchard Margules & Friedlander, P.A. and David Margules (collectively BMF) to dismiss the third-party complaint for indemnification and contribution, and granted plaintiff/third-party plaintiff Blank Rome LLP leave to amend the third-party complaint, unanimously modified, on the law, to dismiss Blank Rome, LLP’s cause of action for indemnification and to allow amendment of the third-party complaint to the extent of asserting additional allegations in furtherance of its cause of action for contribution, and otherwise affirmed, without costs.

"Insofar as the third-party and proposed amended third-party complaints allege that BMF represented defendant, agreed to represent him with respect to the issues giving rise to the legal malpractice alleged in defendant’s counterclaims, and that BMF was negligent with respect to such representation, the motion court properly declined to dismiss Blank Rome’s third-party claims for contribution since this cause of action was sufficiently pleaded (see Schauer v Joyce, 54 NY2d 1, 5 [1981] ["two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them"] [internal quotation marks omitted]). However, the motion court erred when it denied BMF’s [*2]motion to the extent it sought to dismiss the third-party cause of action for indemnification. In order to recover on a claim for common law indemnification, "the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the causation of the accident for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law" (Correia v Professional Data Mgt., Inc., 259 AD2d 60, 65 [1999]). Here, insofar as neither the third-party nor proposed amended third-party complaint assert that Blank Rome, LLP’s liability is solely statutory and not based upon its own negligence, they fail to state a cause of action for common law indemnification. Blank Rome also fails to state a cause of action for contractual indemnification since "[a] party is entitled to full contractual indemnification provided that the intention to indemnify can be clearly implied from the language and purposes of the entire agreement and the surrounding facts and circumstances" (Drzewinski v Atlantic Scaffold & Ladder Co., 70 NY2d 774, 777 [1987] [internal quotation marks omitted]; Masciotta v Morse Diesel Intl., Inc., 303 AD2d 309, 310 [2003]). Here, neither the third-party nor the proposed amended third-party complaint identifies any agreement, let alone alleges that BMF ever agreed to indemnify Blank Rome, LLP for any legal malpractice committed in the course of its representation of the defendant.

The principal of account stated, "an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and the balance due. By retaining billing statements and failing to object to the account within a reasonable time,  the recipient of the bill implies that he or she agrees with the sender regarding the amount owed."  is a powerful, and often determinative Issue.  In Brunelle & Hadjikow, P.C. v O’Callaghan 2013 NY Slip Op 31302(U) June 17, 2013  Sup Ct, NY County Docket Number: 158213/2012 Judge: Shirley Werner Kornreich it is the decisive and only factor considered.

"There is no doubt that B&H is entitled to an account stated on all amounts included in the June 7 Bill. O’Callaghan’s written acknowledgment that he owed those amounts precludes his current objections as to how they were calculated, such as his qualms about rate increases. As for  O’Callaghan’s objections to the amounts billed after June 7, 2006, which were made for the first time in his December 27,2006 letter, he is precluded from objecting to virtually all of the amounts billed because his objections were not made within 30 days of the relevant monthly invoices (except for his objections to invoices sent after November 27,2006). Nonetheless, even if he were entitled to challenge all of the invoices sent after the June 7 Bill, his objections would still fail. First, his objection to the rate increases, provided for in the Retainer, occurred long after such increases went into effect and were billed. Second, his objection to being overcharged for the NYSE appeal fails because the invoices clearly evidence the credits that lowered the appeal billings to $75,000. His self-serving contention about B&H billing him more than $75,000 for work on the appeal (they purportedly billed it as work for his other NYSE proceedings) is refuted by the invoices and is  insufficient to defeat summary judgment."

We remember some Shakespeare quote about how Caesar’s wife must be more worthy than any other politician/emperor’s wife. Similarly, here a legal malpractice case is dismissed for failure to file a complaint after a demand had been made. In Dayan v Darche 2012 NY Slip Op 04312 Appellate Division, Second Department the Court writes:
 

"To avoid dismissal of the action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Perez-Faringer v Heilman, 79 AD3d 837, 838; Gibbons v Court Officers’ Benevolent Assn. of Nassau County, 78 AD3d 654, 654; Pristavec v Galligan, 32 AD3d 834, 834; Maldonado v Suffolk County, 23 AD3d 353, 353-354). Here, the plaintiff failed to proffer any excuse for her lengthy delay in serving the complaint. Furthermore, she failed to establish that she had a potentially meritorious cause of action (see generally Rosner v Paley, 65 NY2d 736, 738; Allen v Potruch, 282 AD2d 484, 484-485; Iannacone v Weidman, 273 AD2d 275, 276-277; Rubinberg v Walker, 252 AD2d 466, 467). Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the action.

In addition, the plaintiff’s motion for leave to renew her opposition to the defendant’s motion to dismiss the action was properly denied. In support of her motion, the plaintiff proffered her attorney’s affirmation in an attempt to provide a reasonable excuse for the delay in serving the complaint. However, the attorney’s affirmation, which, inter alia, proffered an unsubstantiated excuse of disabling illnesses, was insufficient to warrant a change of the prior determination (see CPLR 2221[e][2]; Cynan Sheetmetal Prods., Inc. v B.R. Fries & Assoc., Inc., 83 AD3d 645, 646; Mattera v Capric, 54 AD3d 827, 828; Borgia v Interboro Gen. Hosp., 90 AD2d 531, affd 59 NY2d 802; Wolfe v Town of Hempstead, Dept. of Parks & Recreation, 75 AD2d 811, 812). Moreover, the plaintiff failed to offer a reasonable justification for failing to present this affirmation in opposition [*2]to the defendant’s original motion (see CPLR 2221[e][3]; Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d 510, 512; Zarecki & Assoc., LLC v Ross, 50 AD3d 679, 680; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533). "

Immigration law legal malpractice cases are relatively rare.  One reason is that the plaintiff is usually not int he US and a second reason is that damages are somewhat difficult to calculate, in these days of purely economic or "out-of-pocket" damages.  Here is an unusual case.  Delgado v Bretz & Coven, LLP   2013 NY Slip Op 04720   Decided on June 20, 2013   Appellate Division, First Department   Manzanet-Daniels, J., J.  
 

"In this case we determine whether plaintiff has sufficiently alleged that defendants’ legal advice concerning the consequences of applying for an adjustment of immigration status constitutes malpractice, and whether she has sufficiently alleged that such misguided advice was the but-for cause of her ultimately being taken into custody and deported. [*2]

Plaintiff is a native of Ecuador. On May 5, 1999, she first attempted to enter the United States at Houston International Airport by falsely presenting herself as a returning resident alien, using a visa belonging to her cousin, who has the same surname. Plaintiff was removed and returned to Ecuador, but in December 2000, reentered the United States without inspection by crossing the Mexican border. As an alien previously ordered removed who thereafter entered the United States without permission, plaintiff was deemed "inadmissible" pursuant to Immigration and Nationality Act (INA) § 212(a)(9)(C)(i)(II) (8 USC § 1182[a][9][C][i][II]), and, by statute, could not apply for readmission until ten years had passed from the date of her last departure from the United States (INA § 212(a)(9)(C)(ii) (8 USC § 1182[a][9][C][ii]).

On January 8, 2006, plaintiff married a United States citizen, Jarret Kahn. On February 23, 2006, plaintiff retained defendant Bretz & Coven LLP to represent her before the United States Citizenship and Immigration Service (CIS) in order to obtain legal residency in the United States. Plaintiff alleges that defendant Kerry Bretz, a partner at the firm, determined that she could apply for adjustment of status without leaving the United States, based on a Ninth Circuit precedent, Perez-Gonzalez v Ashcroft (379 F3d 783, 788-789 [9th Cir 2004]).

On July 11, 2006, the firm filed several immigration forms with CIS, including a Form I-485 petition for adjustment of status to lawful permanent resident, Form I-212 for permission to reapply after deportation or removal, and a Form I-130 petition for classification of an alien as an immediate relative of a United States citizen.

On October 26, 2006, plaintiff and her husband appeared with defendants for an interview at CIS, which denied her requests on the I-485 and I-212 forms that same day. CIS found her ineligible for adjustment of her status because she had entered the United States without permission after having been removed. CIS found that plaintiff did not qualify for a waiver of inadmissibility, as set forth in section (a)(9)(C)(ii) because 10 years had not yet passed from the date of her last departure from the United States, and she did not seek permission for readmission before she reentered in December 2000.

Plaintiff was arrested on the same day by immigration authorities, who reinstated her expedited removal order of May 5, 1999. They released her from detention the same day pursuant to an agreement reached with her lawyers, but the reinstatement order remained in effect. "

"We now modify to reinstate plaintiff’s claim for legal malpractice against defendant law firm and Bretz. The claim against defendant Guadagno was properly dismissed. Inasmuch as the well-reasoned and thorough Second Circuit opinion was not contingent on defendant Guadagno’s argument or briefing, it was not a but-for cause of plaintiff’s deportation.

We disagree with the motion court’s conclusion that due to intervening events, defendant law firm and Bretz’s malpractice was not a "but for" cause of plaintiff’s removal from the United States. Plaintiff was unambiguously ineligible for relief under prevailing case law when defendants submitted her application to immigration authorities. Once her application was submitted and denied and the removal order reinstated, any efforts by Kahn, whom plaintiff had retained to represent her after terminating defendants’ services, were too late to remedy the situation. By that point, the only intervening event sufficient to break the causal chain would have been a change in the relevant immigration law. The passage of four years between plaintiff’s consultation with defendants and her removal did not disrupt the chain of causation.

When defendants submitted plaintiff’s application, the government had already publicly announced that it would not grant relief to those in her position in light of the BIA’s decision in Matter of Torres-Garcia (see e.g. CIS Interoffice Memo dated Mar. 31, 2006, p. 2, attached to the complaint and available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2006/perezgonz033106.pdf, stating that in light of Torres-Garcia, "in any case where an alien is inadmissible under section 212(a)(9)(C)(i) of the INA and 10 years have not elapsed since the date of the alien’s last departure from the United States, USCIS should deny any Form I-212 requesting consent to reapply for admission"). However, instead of advising plaintiff concerning the clear implications of the BIA’s ruling in Torres-Garcia — to which the Ninth Circuit owed deference under Chevron USA — defendants assured plaintiff "she would not be deported much less detained" if she applied.

Given plaintiff’s allegations that she had no chance of obtaining immigration relief and that defendants failed to thoroughly discuss the possibility, if not certainty, of reinstatement of the order of deportation and removal upon submission of the application, plaintiff has sufficiently alleged that defendants followed an unreasonable course of action in pursuing the application (see Phoenix Erectors, LLC v Fogarty, 90 AD3d 468, 469 [1st Dept 2011]). Moreover, she has sufficiently alleged proximate cause, because the submission of the application alerted authorities to her status, which led to the issuance of the reinstatement order and ultimately to her removal (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Phoenix Erectors, 90 AD3d at 469). Plaintiff’s unlawful status alone did not trigger her removal, since she had resided in the United States, albeit unlawfully, for more than six years; she was removed only after defendants affirmatively alerted immigration authorities to her presence. The record does not indicate on this motion pursuant to CPLR 3211 that plaintiff would have otherwise come to the attention of the immigration authorities. Without discovery on the issue, it cannot yet be said, as defendants assert, that plaintiff would have been deported regardless of defendants’ malpractice. Indeed, had plaintiff waited four more years she would have been eligible to apply for reinstatement under INA § 212(a)(9)(C)(ii), which provides that an alien in [*5]plaintiff’s position can apply for admission if more than ten years have passed from the date of the alien’s last departure from the United States."