We believe the legal malpractice case based upon an unsuccessful medical malpractice case is among the most difficult cases of any to litigate.  The practitioner must understand medical malpractice as well as legal malpractice, an in Vitale v Meiselman  2013 NY Slip Op 30910(U)
April 25, 2013  Sup Ct, New York County  Docket Number: 108969/12  Judge: Eileen A. Rakower there is the additional layer of New Jersey v. New York law with which to contend,

"This is an action for legal malpractice arising from defendants  Meiselman & Gordon LLP, Alvin Gordon, and Michael Meiselman’s (collectively, “Defendants”) representation of plaintiffs Felicia Vitale and Louis Vitale (collectively, “Plaintiffs”) in a medical malpractice action that was dismissed by the United States District Court of New Jersey (‘the District Court”) with prejudice.. This action was commenced on August 3, 201 1. In its initial Complaint, Plaintiffs asserted a claim for legal malpractice based on Defendants’ failure to comply with the New Jersey Affidavit of Merit statute, N.J.S.A. 2A: 53A-26 to 29. Issue was joined on or about October 1 1 , 20 1 1. Plaintiffs then moved for leave to file a supplemental summons and amended complaint by motion dated March 28,2013
to add a claim based on Defendants’ failure to name the individual parties who had rendered care and treatment services, thereby limited Plaintiffs’ recovery. That motion was granted. Defendants answered the amended complaint on or about September 1 1,2012, denying that claim.
 

Plaintiffs move for an Order granting them partial summary judgment pursuant to CPLR $3212 as to the issue of negligence/liability against Defendants for legal malpractice in causing the underlying medical malpractice action to be dismissed with prejudice due to their failure to comply with New Jersey’s Affidavit of Merit statute, N.J.S.A. 2A53A-26 to 29. Plaintiffs state that they are “not seeking summary judgment on the ultimate issue of whether Defendants committed legal malpractice,” but rather on the “’sole issue of whether the defendant was negligent, an issue that has already been determined in the underlying action.’’

As plaintiffs’ expert Fruhling asserts in his affidavit, the New Jersey Affidavit of Merit Statute requires “a plaintiff, in an action for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, to supply an affidavit within 60 days following the date of the filing of the answer to the complaint by the defendant.” Fruhling asserts that the statute requires the expert to opine that there is a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment,
practice or work that is the subject of the litigation fell outside acceptable professional or occupational standards or treatment practices. In Plaintiffs’ underlying medical malpractice case, Defendants submit the Affidavit of Merit of Salvatore Tedesco, M.D., a physician certified in the field of general surgery, who did not have a board certification in psychiatry and had no experience in the use of ECT and did not treat psychiatric patients in his clinical practice. Fruhling states that “an
attorney’s retention of a general surgeon to execute an Affidavit of Merit in support of a psychiatric malpractice claim was a departure from good and accepted legal malpractice.” Fruhling concludes that Defendants “failed to exercise the degree of care, skill and diligence commonly possessed and exercised by a member of the legal profession in New Jersey, and such failure led to the dismissal of Plaintiffs underlying action on the merits, with dismissal.”

Here, as the parties present conflicting expert affidavits concerning whether defendants were negligent in failing to exercise that degree of care, skill and diligence commonly exercised by an ordinary member of the legal community, Plaintiffs’ summary judgment motion is denied. Defendants’ cross motion for summary judgment as to Plaintiffs’ legal malpractice claims is also denied in light of issues of fact that exist in this case. Defendants have not established prima facie entitlement to summary judgment as to these claims. While Defendants allege that Plaintiffs have failed to demonstrate any evidence of proximate cause to support their legal malpractice action, Plaintiffs point to the affidavit of Dr. Goldstein (that had been submitted by Defendants on behalf of
Plaintiffs in the underlying action), who opines, with a reasonable degree of medical psychiatric certainty, that the treatment rendered at the Carrier Clinic departed from accepted standards of psychiatric practice and proximately caused Ms. Vitale serious and permanent injuries. Furthermore, Defendants have not established entitlement to summary judgment on Plaintiffs’ claim that they were negligent in limiting Plaintiffs’ recovery to $250,000 and by only naming Carrier Clinic as a party defendant. Defendants contend that they would have later named individual
defendants pursuant to the relation back doctrine. Plaintiffs state that Defendants have failed to demonstrate that the doctrine applied, and an amendment would have been permitted. As such, issues of fact exist with regard to this claim."

 

Yes, they are, and Soja v Keystone Trozze, LLC   2013 NY Slip Op 03147   Decided on May 2, 2013  Appellate Division, Third Department  is an example of their application.  In this professional malpractice (architects/house designers) plaintiff alleges that they built the house in violation of FEMA / flood elevation principals.
 

"Here, plaintiffs allege that a letter they received from Keystone in 2001 proves that Keystone failed to use the flood elevation report provided by plaintiffs’ surveyor or to consult with the local Federal Emergency Management Agency coordinator when designing the home, as Keystone was contractually obligated to do [FN1]. Plaintiffs claim that, as a result of Keystone’s allegedly faulty design plans, the first floor of their home was built almost two feet lower than applicable regulations allow, leading to increased flood insurance premiums, among other things. Plaintiffs contend that Keystone’s conduct constitutes gross negligence, abrogating the limitation of liability clause. "

""As a general rule, parties are free to enter into contracts that absolve a party from its own negligence or that limit liability to a nominal sum" (Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d 675, 682-683 [2012] [citations omitted]). As a matter of public policy, however, exculpatory or limitation of liability clauses are not enforceable in the face of grossly negligent conduct (see id. at 683; Sommer v Federal Signal Corp., 79 NY2d 540, 554 [1992]; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d 377, 384-385 [1983]). "This applies equally to contract clauses purporting to exonerate a party from liability and clauses limiting damages to a nominal sum" (Sommer v Federal Signal Corp., 79 NY2d at 554). "

We disagree. The parties do not dispute the legal standard to be applied in determining whether conduct amounts to "gross negligence." In this context, it is settled that "gross negligence differs in kind, not only in degree, from claims of ordinary negligence. It is conduct that evinces a reckless disregard for the rights of others or smacks of intentional wrongdoing" (Finsel v Wachala, 79 AD3d 1402, 1404 [2010] [internal quotation marks and citations omitted]; see Abacus Fed. Sav. Bank v ADT Sec. Servs., Inc., 18 NY3d at 683).

In our view, even assuming that the letter relied upon by plaintiffs may ultimately be used to prove a breach of contract or professional malpractice by Keystone, it does not raise a question of fact as to whether Keystone was grossly negligent. That is, while plaintiffs may have stated causes of action based upon breach of contract and common-law negligence, the conduct alleged does not evince the necessary reckless indifference to the rights of others that would render the limitation of liability clause unenforceable (see Colnaghi, U.S.A. v Jewelers Protection Servs., 81 NY2d 821, 824 [1993]; David Gutter Furs v Jewelers Protection Servs., 79 NY2d 1027, 1029 [1992]; Rector v Calamus Group, Inc., 17 AD3d 960, 961-962 [2005]; compare Abacus Fed. Sav. Bank v ADT Sec. Servs., 18 NY3d at 683-684; Kalisch-Jarcho, Inc. v City of New York, 58 NY2d at 385). Accordingly, Supreme Court properly granted partial summary judgment in Keystone’s favor.

 

ENGLAND and MIDWEST GEMS, INC., -against- . FELDMAN and FELDMAN LAW GROUP, Defendants.11 Civ. 1396 (CM) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 36382; , is as good a primer in the general and substantive laws of legal malpractice as one might read. There, Judge McMahon tells us:

"Plaintiffs’ First Cause of Action alleges a legal malpractice claim against Defendants. Defendants argue that Plaintiffs have not pleaded facts tending to show that Defendants were negligent or that Defendants caused Plaintiffs harm. Yes, they have."

"Thus, a plaintiff "must . . . establish[] that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community." Stokes v. Lusker, 2009 U.S. Dist. LEXIS 23471, 2009 WL 612336, at *10 (S.D.N.Y. Mar. 4, 2009) (quoting Hatfield v. Herz, 109 F. Supp. 2d 174, 180 (S.D.N.Y. 2000)).

"To [*10] establish the elements of proximate cause and actual damages for a claim of legal malpractice, the plaintiff must show that ‘but for the attorney’s negligence, what would have been a favorable outcome was an unfavorable outcome.’" Stonewell Corp., 678 F. Supp. 2d at 209 (quoting Zarin v. Reid & Priest, 184 A.D.2d 385, 585 N.Y.S.2d 379, 381 (N.Y. App. Div. 1992)). "The failure to establish proximate cause requires dismissal of the legal malpractice action, regardless of whether it is demonstrated that the attorney was negligent." Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 753 N.Y.S.2d 482, 486 (N.Y. App. Div. 2003).
 

Plaintiffs allege facts tending to show that Feldman’s conduct in the Underlying Lawsuit fell below the standard of care and diligence commonly possessed by other members of the bar. Moreover, Plaintiff’s allege that Feldman’s negligence was the proximate cause of Plaintiffs’ damages—specifically, the loss of certain trademark rights in the "Iceman" mark (Compl. ¶ 47), the inability to assert valid cross-claims and third-party claims against other parties (id. ¶ 40), and the payment of unnecessary legal fees (id. ¶ 47). Plaintiffs’ allegations are sufficient to plead a claim for legal malpractice in New York as they allege facts tending to show attorney negligence by Defendants and that Defendants’ negligence is the proximate cause of the damage Plaintiffs’ suffered.

 

Under New York law, where a claim for negligence, breach of fiduciary duty, breach of contract, or failure to disclose a conflict of interest are premised on the same facts and seek the identical relief as a claim for legal malpractice, these claims are "redundant and should be dismissed." Nordwind, 584 F.3d at 432-33 (quotation marks omitted); accord Amadasu v. Ngati, 2006 U.S. Dist. LEXIS 19654, 2006 WL 842456, at *9 (E.D.N.Y. Mar. 27, 2006) (dismissing plaintiff’s claims for breach of contract, breach of fiduciary duty, negligent misrepresentation, negligent performance, and gross negligence as duplicative). Plaintiffs’ claims for breach of contract and breach of the implied covenant of good faith and fair dealing arise from the same facts as the legal malpractice claim in and do not allege any distinct damages other than the damages suffered as a result of the legal malpractice. See Financial Services Vehicle Trust v. Saad, 72 A.D.3d 1019, 900 N.Y.S.2d 353, 354 (N.Y. App. Div. 2010); [*14] see also Joyce v. Thompson Wigdor & Gilly LLP, 2008 U.S. Dist. LEXIS 43210, 2008 WL 2329227, at *14 (S.D.N.Y. June 3, 2008) (citing Norwind v. Rowland, 2007 U.S. Dist. LEXIS 75764, 2007 WL 2962350, at *4 (S.D.N.Y. Oct. 10, 2007)) (breach of fiduciary duty and breach of contract).

Accordingly, Counts Two and Three are dismissed as duplicative of the legal malpractice claim."

 

Standing in legal malpractice cases is determined by the question of privity.  Privity comes in several flavors.  One is whether there is a contract between client and attorney, written, oral, or implied.  If there is a contract, (even if the contract is implied from the factual representation which takes place), then that particular question of privity is answered.  The second flavor is reached when a question of whether a corporation or an individual has hired the attorney.  Sometimes the legal malpractice cases resembles a shareholder derivative claim, and may be dismissed for lack of standing.

In an analogous case involving accountants,Serano v Lipper  2013 NY Slip Op 30871(U)  April 24, 2013  Supreme Court,New York County,  Docket Number: 604396/2002  Judge: Shirley Werner Kornreich discusses this issue:

"“New York courts impose  a strict privity requirement to claims of malpractice: an accountant is not liable to a third party [or negligence in performing services on behalf of his client.  Lavanant v. General Acc. Ins.Co of America, 164 AD2d 73, 81 ( 1st Dept, 1990).  However, “while privity of contract is generally necessary to stale a cause of action for malpractice liability is extended to third parties, not in privity, for harm caused by professional negligence in the presence of fraud, collusion, malicious acts or other special circumstances.  Good Old Days Tavern, Inc. v. Swirn, 259 AD2d 300 (1st Dept, 1999).

l’he Appellate Division, First Department, has adopted Delaware’s Tooley standard to
determine if a claim is direct or derivative.  See Udell v. Gilbert, 99 AD3d 108, 113-114 (1st Dept, 2012).  Under Tooley, the question of whether a claim is direct or derivative :must turn solely on the following questions: 1 ) who suffered the alleged harm (the corporation or the suing
stockholders, individually); and (2) who would receive the benefit of any recovery or other
remedy (the corporation or the stockholders, individually. Tooley v. Donaldson, Lufkin & Jenrette, Inc.  845 A2d 1031, 1033 (Del, 2004).

This case is really a fight amongst insurance companies, but it highlights an interesting source of legal malpractice cases: the referral.  While at first blush it might seem unreasonable for client to hold attorney responsible for merely giving a name to them to speak to, in American Guar. & Liab. Ins. Co. v Chicago Ins. Co.   2013 NY Slip Op 02845   Decided on April 25, 2013   Appellate Division, First Department we see the consequences of a mass mailing with indiscriminate referrals.
 

"Plaintiff insurer seeks to hold defendant insurer liable for claims it covered on behalf of their mutual insured, nonparty Roger A. Giuliani, Esq. Giuliani had engaged in a mass market mail campaign targeting senior citizens for estate planning legal services. Once the offer for legal services was accepted, Giuliani also offered to refer his clients to financial services representatives. Following the referrals, four clients became the victim of theft and fraud by the financial services representatives.

Each victim filed suit against Giuliani and the financial services representatives, alleging against Giuliani legal malpractice based on his failure to oversee the representatives. Two victims filed suit during the professional liability policy period covered by defendant, and two filed suit during the period covered by plaintiff (the Twomey and Bergmann actions). Giuliani also tendered the defense of the latter two to defendant, which denied coverage based on the claims being made outside the policy period.

Plaintiff settled those claims and then commenced this action, claiming that under defendant’s "claims-made" policy, the latter claims were the "same and/or related" to the first two claims and that defendant should have provided coverage to Giuliani and therefore should reimburse it. The motion court agreed, finding that because the victims’ relationship with Giuliani and the financial services professionals originated with the mass mailing campaign, the claims were related. We disagree. "

 

Today’s New York Law Journal, in an article by Christine Simmons reports that a legal malpractice case against Willkie Farr & Gallagher has been dismissed. 

"His complaint alleged that Willkie lawyers Marc Abrams and Matthew Feldman made "full-throated warnings" that Lichtenstein risked drastic personal exposure if he did not authorize a bankruptcy filing. Lichtenstein said this advice was wrong because he would prevail in any lawsuit for breach of fiduciary duty.

But Acting Supreme Court Justice Melvin Schweitzer (See Profile), ruling on Willkie’s motion to dismiss, said Lichtenstein admitted that the bankruptcy filing was necessary to prevent waste of Extended Stay’s assets. "Where a fiduciary (as Mr. Lichtenstein admits he was) fails to file for bankruptcy or delays filing in order to serve his personal interest, such as to avoid liability under a guaranty, and the corporation’s value is diminished as a result, he faces uncapped personal liability," the judge said. "Willkie was not negligent" and the firm provided advice consistent with the ordinary reasonable skill and knowledge possessed by a member of the legal profession, the judge said.

Thomas Kavaler, a Cahill Gordon & Reindel partner who represents Willkie, said in a statement, "We are gratified that the judge accurately saw that there was never anything to this claim at all." Lichtenstein’s attorney, Andrew Celli, a partner at Emery Celli Brinckerhoff & Abady, declined to comment."
 

We’ll have further comment on this case tomorrow.

 

 

One of the more interesting phenomena is the transition of claims into findings as a case goes to trial.  What were formerly "strong" claims, now are final findings of fact.  In Krausz v Kaufman 2013 NY Slip Op 30803(U) April 9, 2013 Sup Ct, New York County Docket Number: 104174/2008
Judge Debra A. James performs the magic.  Her decision dissects the question of whether plaintiff attorney is due fees, and whether defendant client can pursue legal malpractice claims.

"Under the Engagement Letter dated November 17, 2005, signed by both parties (the  Engagement Letter”), plaintiff attorney was retained by defendant to represent her in connection with a renewal of her spokesperson contract for the Snapple brand of beverages. Defendant
had been a spokesperson for Snapple since I993 and was commonly known as “The
Snapple Lady.” The Engagement Letter began by stating that “you hereby engage my legal
services (“I” or “me”) in connection with the negotiation and review of your proposed
spokesperson contract for 2006 (and possibly future extensions) with the “Snapple”
brand.” With respect to the fee to be charged by plaintiff for legal services, the
Engagement Letter stated in pertinent part Upon execution of this agreement, you shall pay me a sum equal to five percent (5%) of any and all Gross income earned or received by you, or on
behalf of your services and/or activities resulting or deriving from your contract with the “Snapple” brand in any media, now or hereafter known. Notwithstanding the above, to the extent that your compensation includes amounts that are clearly defined as reimbursements of your expenses (including repayment of your staffs’ salaries, or your travel and appearances-related expenses), such amounts shall be excluded from the calculation of my fee.

The genesis of the end of the parties’ attorney-client relationship was a disagreement between defendant and Snapple about what constitutes an “Appearance” as the term is defined under the Contract. In pertinent part, the Contract provided that defendant “make up to fifty personal appearances per each twelve month period (hereinafter referred to as ‘Appearances’) to promote the Snapple brand”. The Contract defined “Appearances” as “a period of four (4) hours, exclusive of [defendant’s] prep and travel time, during which [defendant] gives an interview with the press and/or personally appears in support of a live initiative planned and approved by Snapple with
a focus on promoting the Snapple brand.” As for defendant‘s compensation, the Contract stated that “in full and complete consideration of [defendant] entering and fulfilling all of her obligations under this Agreement, Snapple shall pay [defendant] a fee of Five Hundred Seventy Seven Thousand Five Hundred Dollars ($577,500)” in each of the two years. In accordance with the Contract, Snapple paid defendant her fee in four installments- $350,000 on May 18, 2006; $227,500 on August 30, 2006; $350,000 on March 12,2007, and $227,500 on September 7,2007.

By e-mail on June 21, 2006, plaintiff relayed to Sean Gleason, who had negotiated the Contract on behalf of Snapple, that defendant understood that under the Contact, each individual press interview counted as a single appearance, for example five interviews over a four hour period would count as five of 100 appearances for the two year term. In his reply e-mail, Gleason responded “That is not the contract I signed. If she does 5 interviews- or 500- over the 4-hour period, so long as it stays within the 4 hour time frame, that counts as ONE appearance.”

Promptly after she was paid by Snapple on May 18, 2006, defendant paid plaintiff attorneys fees in the amount of 5% of the first installment of $350,000, or $1 7,500. However, though defendant, in accordance with the Contract, received her installments from Snapple on August 30, 2006, March 12, 2007 and September 7, 2007, she failed to remit any further payments to plaintiff. On September 6, 2006, defendant e-mailed a message to plaintiff that stated in essence that plaintiff would have to wait until defendant determined defendant’s expenses, which would be deducted from the fees defendant received from Snapple, before defendant would apply the 5% to her earnings and remit the balance of the attorneys’ fees owed to plaintiff. Defendant retained the firm of Brown Moskowitz 8 Kallen (“BM&K) who sent a letter dated September 20, 2006 on behalf of defendant to plaintiff. In that letter BM&K, inter alia, noted plaintiffs pledge in her letter of September 8, 2006 to continue to work for defendant pursuant to the Engagement Letter, characterized her demands for payment of attorney’s fees as illegitimate, and acknowledged and accepted plaintiff‘s resignation by e-mail dated September 6, 2006."

"Having reviewed the evidence, both the testimony and records, the court determines that plaintiff fully completed the legal services she promised to render to defendant under the Engagement Letter dated November 17, 2005 (“Engagement Letter”), that defendant breached that Engagement Letter in failing to remit the balance of attorneys’ fees outstanding thereunder, and that plaintiff is entitled to recover such fees from defendant."

Is it possible to prove legal malpractice at a trial which goes to the jury?  While an argument can be made that the attorney failed to call a particular witness, or failed to offer a particular piece of evidence, the countervailing argument will be that an attorney may choose among several different reasonable trial strategies, and if the case went all the way to the jury, regardless of its outcome, then attorney competence is demonstrated.  If the work was incompetent, it would have been dismissed at trial.

Schlenker v Cascino  2013 NY Slip Op 50631(U)  Decided on April 12, 2013  Supreme Court, Albany County  Platkin, J. is a deeply analyzed discussion of just such an incident.  Apparently, the clients were bringing in solid waste, and dumping it on their property, all the while arguing that they were rendering their farm more crop-friendly.
 

"Plaintiff brought this action seeking to recover monies for legal services rendered to defendants. In response, defendants asserted a counterclaim for legal malpractice. After disclosure was completed and a note of issue filed, the Court established a day certain for trial of April 8, 2013. Subsequently, plaintiff moved for summary judgment on the breach of contract and account-stated causes of action and for dismissal of the counterclaim. The Court granted summary judgment to plaintiff on the claim for an account stated, denied as moot the application with respect to the claim for breach of contract and granted in part and denied in part the application to dismiss the counterclaim for legal malpractice (Schlenker v Cascino, et al., Supreme Court, Albany County, Index No. 5650-11, December 31, 2012, Teresi, J.).

A jury was selected on April 8, 2013, and proof commenced the following morning. Defendants’ allegations of malpractice pertain to plaintiff’s representation of them in an enforcement action brought by the Town of Copake ("the Town"). The action ultimately proceeded to trial ("the Copake Trial") over three days in February and March of 2009. Following the close of proof and the parties’ submission of proposed factual findings and legal memoranda, Supreme Court, Columbia County (Nichols, J.) determined that defendants had violated certain provisions of the Town Code by depositing solid waste, operating a recycling business and storing commercial equipment and materials without proper authorization. In so doing, Supreme Court rejected defendants’ contention that the Town’s actions unreasonably restricted their right to engage in farming operations in violation of Agriculture & Markets Law ("AML") § 305-a (see Town of Copake v 13 Lackawanna Props., LLC, 99 AD3d 1061,1062 [3d Dept 2012]).

At the instant trial, plaintiff testified that he decided not to seek the introduction of these documents into evidence after weighing a number of strategic considerations. Among other things, plaintiff testified that he did not believe that these documents reflected the Department’s final word on the subject. Plaintiff explained that he was aware that the Department was reconsidering its prior determinations based upon allegations that defendants’ alleged agricultural use of the property was merely a pretext for commercial activities, including solid waste disposal.

 

The Court concludes that defendants have failed to adduce legally sufficient proof to support their claim that plaintiff deviated from relevant professional standards in failing to introduce the three Department letters at the Copake Trial. An attorney’s exercise of professional judgment involving the selection of appropriate evidence to be introduced at trial generally is not actionable as malpractice (Bixby, 62 AD3d at 1140). Given the ongoing nature of the AML § 305-a review process, concerns that the Town and others had presented the Department with damaging new evidence, and the prospect that the Department’s interim determinations would soon be withdrawn or limited, plaintiff’s uncontroverted testimony establishes as a matter of law that his decision not to introduce the Department letters constituted a reasonable course of action under the circumstances. To be sure, introducing the letters in an effort to bolster Mr. Cascino’s testimony, as defendants’ current counsel advocates, may well have been a legitimate trial strategy. But the "selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 [1985]). "

For more of the Court’s reasoning, read the original, which discusses expert testimony and ascertainable damages.

 

As cases become problems, or as basic problems become more prominent in litigation cases, one offshoot is that litigants take it into their own hands to try to remedy the situation.  Whylie v Pager 2013 NY Slip Op 50601(U)  Decided on April 18, 2013  Supreme Court, Kings County
Schack, J. is just such a case.  She claimed injury, and retained defendants to represent her.  No medical expert was obtained, and her case was dismissed.  We’ll let Judge Schack take it from here:
 

"Defendants, in the underlying action, moved for summary judgment and dismissal of plaintiff WHYLIE’s complaint, claiming absence of medical causation. This was supported by defendants’ medical experts. Defendant PAGER opposed the summary judgment motions, but lacked an expert willing to causally relate the May 3, 2001-incident to the injuries and symptoms claimed by plaintiff WHYLIE. Plaintiff WHYLIE’s treating physician, Dr. Denise Harrison [exhibit A of motion], opined that "a careful review of the literature found no definitive link between the chemicals she was exposed to and her complaints." Further, Dr. Harrison reported that "Ms. Whylie was also evaluated by a neurologist and it was determined that her symptoms had no neurological etiology and was thought to have a psychotic disorder."

In her decision and order of November 7, 2008 in the underlying action, Justice Yvonne Lewis granted defendants’ motions for summary judgment for lack of medical causality and dismissed plaintiff WHYLIE’s complaint. Plaintiff WHYLIE, appearing pro se, appealed Justice Lewis’ decision and order. The Appellate Division, Second Department unanimously affirmed Justice Lewis, on December 7, 2010"
 

Plaintiff WHYLIE, after her dismissal of defendant PAGER, brought numerous applications to Supreme Court, Kings County, in the underlying dismissed action. In one of her affidavits, plaintiff WHYLIE acknowledged that defendant PAGER stopped representing her on November 8, 2008 [exhibit F of motion].

Then, on December 30, 2011, more than three years after PAGER ceased to represent WHYLIE, plaintiff WHYLIE commenced the instant legal malpractice action against defendant PAGER, claiming that in the underlying action, defendant PAGER committed legal malpractice and breach of contract. Plaintiff WHYLIE demanded judgment of $1,000,000 for compensatory damages and $1,000,000 for punitive damages."
 

It is clear that plaintiff WHYLIE failed to allege or demonstrate how defendant PAGER failed to exercise "the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" and how this alleged breach of duty "proximately caused the plaintiff to sustain actual and ascertainable damages." (See Olaiya v Golden, 45 AD3d 823, 823-824 [2d Dept 2007]; Mourtil v Korman & Stein, P.C., 33 AD3d 898, 899 [2d Dept 2006]; Avery v Sirlin, 26 AD3d 451 [2d Dept 2006]; Natale v Samel & Assoc. (308 AD2d 568, 569 [2d Dept 2003]). The underlying action was dismissed because defendants established their entitlement to judgment as a matter of law. Defendants’ evidence demonstrated the absence of medical causality between the May 3, 2001-incident and the damages claimed. Plaintiff WHYLIE, in the underlying action, had no medical evidence to respond with or counter defendants’ arguments. Moreover, plaintiff WHYLIE fails to allege that the underlying action was meritorious or that it would have been successful. "

"Further, the instant summons with notice was filed on December 30, 2011, more than three years after November 8, 2008, the final date of defendant PAGER’s representation of plaintiff WHYLIE. As noted above, in Tsafatinos v Lee David Auerbach, P.C., plaintiff WHYLIE’s breach of contract claim is duplicative of malpractice and therefore subject to the same three-year statute of limitations as the malpractice claim. (CPLR § 214 [6])."

As the Appellate Division plows through the "what would have been the outcome" analysis of Ruotolo v Mussman & Northey    2013 NY Slip Op 02678   Decided on April 18, 2013
Appellate Division, First Department , we see the in depth factual and hypothetical work that’s done in a legal malpractice case.  Here, a former police officer sues his attorneys for failures in suing for employment discrimination and whistle blower status.  He fails, as the AD delves far into how his case hypothetically would have come out, had the attorneys performed as he says they should.
 

"In this legal malpractice action, plaintiff, a retired New York City police officer, retained defendants to represent him in a lawsuit against the New York City Police Department (NYPD) and the City of New York. The complaint in that lawsuit alleged retaliation in violation of the First Amendment based on plaintiff’s writing of a report, written pursuant to his duties as a safety officer, that identified certain possible environmental hazards at his police precinct. The complaint was dismissed because, while the case was pending, the United States Supreme Court held, in Garcetti v Ceballos (547 US 410 [2006]), that a government employee cannot claim First Amendment violations against his employer based on speech made "pursuant to" the employee’s official duties (id. at 421).

Plaintiff subsequently brought this malpractice action, primarily due to defendants’ alleged failure to amend the complaint to include claims that, allegedly, would not have been dismissed in light of Garcetti.

Supreme Court correctly held that defendants made a prima facie showing of lack of causation, and that plaintiff failed to present evidence in admissible form sufficient to raise a triable issue of fact (see e.g. GUS Consulting GmbH v Chadbourne & Parke LLP, 74 AD3d 677, 679 [1st Dept 2010], lv denied 16 NY3d 702 [2011]). In particular, plaintiff failed to demonstrate that he would have succeeded on the merits of the underlying action "but for" defendants’ alleged negligence in failing to amend the complaint (Aquino v Kuczinski, Vila & Assoc., P.C., 39 AD3d 216, 218-219 [1st Dept 2007]).

Indeed, plaintiff would not have prevailed on his First Amendment retaliation claim even if defendants had amended the complaint to include plaintiff’s April 2000 conversation with a Police Benevolent Association (PBA) attorney regarding his report. The NYPD Patrol Guide states that, as a safety officer, he was required to "[a]ct as liaison for command on safety and health issues," which he did in meeting with the PBA attorney. In addition, plaintiff stated, in his deposition in the civil rights matter, that the PBA attorney sought him out specifically to discuss [*2]the report, and that he spoke to the PBA attorney at the precinct, on work time, with his supervisor’s knowledge. Thus, his conversation with the PBA attorney was undoubtedly "pursuant to" his duties as a safety officer and did not amount to speech protected by the First Amendment (Garcetti, 547 US at 421).

Plaintiff also would not have prevailed on any claim of a due process violation based on NYPD’s confiscation of his weapons before his retirement. Indeed, plaintiff does not dispute that there were postdeprivation state remedies available to him (Hudson v Palmer, 468 US 517, 533 [1984]; Hellenic American Neighborhood Action Committee v City of New York, 101 F3d 877, 880 [2d Cir 1996], cert dismissed 521 US 1140 [1997]). Although there is a factual issue as to whether defendants advised plaintiff to obtain counsel to pursue his claim in state court,
it is not a material issue because plaintiff never alleged malpractice on this basis. Nor does it warrant further discovery pursuant to CPLR 3212(f). "