Commencement of a new case and the service of process are anachronistic to New York, and provide a wealth of potential problems for the experienced practitioner. Imagine how confusing it is to the pro-se plaintiff. In any event, were one to query a group of experienced attorneys, we predict that a shockingly large number would have trouble correctly explaining CPLR 306-b.

So, Henneberry v Borstein ; 2012 NY Slip Op 00235 ; Decided on January 17, 2012 ;Appellate Division, First Department provides a splendid primer in the area. Plaintiff pro-se started an action, hired a process server, had some problems with service, started a second action, and in the end everything was dismissed. Here is how the AD settled the issue:
 

"The unintended effect of the disposition of the first two orders appealed from was to deprive plaintiff of an opportunity to pursue her timely filed lawsuit, based entirely upon her failure to effectively complete the ministerial act of properly serving defendants within 120 days of the filing of notice. This was error.

CPLR 306-b provides, as relevant:

"Service of the summons and complaint, summons with notice, . . . shall be made within one hundred twenty days after the filing of the summons and complaint, summons with notice, . . . . If service is not made upon a defendant within the time period provided in this section, the court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service."

The statute requires that a defendant challenging service move to dismiss on that ground (Daniels v King Chicken & Stuff, Inc., 35 AD3d 345 [2006]). In deciding such a motion, the express language of CPLR 306-b gives the court two options: dismiss the action without prejudice; or extend the time for service in the existing action. Here, defendants made their motions after the statute of limitations had expired. In these circumstances, the court’s options were limited to [*3]either dismissing the action outright, or extending the time for plaintiff to properly effect service.
The first order appealed from dismissed the action, without prejudice to the filing of a new action, and granted plaintiff’s cross motion for an extension of time to effect service. This directive was internally inconsistent, and it led plaintiff to file the 2010 action, later dismissed as untimely (Matter of Rodamis v Cretan’s Assn Omonoia, 22 AD3d 859, 860 [2005] [court cannot grant CPLR 306-b extension where action has been dismissed and statute of limitations has expired]; see Sottile v Islandia Home for Adults, 278 AD2d 482, 484 [2000]). The court should have limited its ruling in the first order on appeal to granting plaintiff’s cross motion for an extension of time to effect service pursuant to CPLR 306-b (see Lippett v Education Alliance, 14 AD3d 430, 431 [2005]).

CPLR 306-b authorizes an extension of time for service in two discrete situations: "upon good cause shown" or "in the interest of justice" (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-106 [2001]). The Court of Appeals has confirmed that the "good cause" and "interest of justice" prongs of the section constitute separate grounds for extensions, to be defined by separate criteria (id. at 104). The Court stated,

"Our analysis is buttressed by an examination of the legislative history behind the amendment [to CPLR 306-b]. The New York State Bar Associations Commercial and Federal Litigation Section Committee on Civil Practice Law and Rules characterized the interest of justice standard as more flexible’ than the good cause standard, specifically noting that [s]ince the term "good cause" does not include conduct usually characterized as "law office failure," proposed CPLR 306-b provides for an additional and broader standard, i.e., the "interest of justice," to accommodate late service that might be due to mistake, confusion or oversight, so long as there is no prejudice to the defendant’".

(id. at 104-105 [emphasis added]). A "good cause" extension requires a showing of reasonable diligence in attempting to effect service upon a defendant. At least one Appellate Division decision has suggested that good cause is likely to be found where "the plaintiff’s failure to timely serve process is a result of circumstances beyond [its] control" (Bumpus v New York City Tr. Auth., 66 AD3d 26, 32 [2009] [noting difficulties of service with person in military or difficulties with service abroad through Hague Convention]).
Even if this case does not qualify for an extension under the "good cause" exception (see Mead v Singleman, 24 AD3d 1142, 1144 [2005]), we find that it qualifies under the "interest of justice" category. Under this prong of CPLR 306-b, the Court of Appeals has instructed that a court "may consider [plaintiff’s] diligence, or lack thereof, along with any other relevant factor . . ., including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff’s request for the extension of time, and prejudice to defendant" (Leader, 97 NY2d at 105-106).

Here, plaintiff’s attempted March 2008 service, although ultimately deemed defective, was a diligent attempt by a pro se plaintiff to hire a process server to serve defendants at their law firm, within 120 days of the timely filing of a summons with notice. By the time the court ruled on the motions in the 2007 Action, the statute of limitations had expired, precluding the filing of a new action. In addition, defendants were aware of the 2007 Action and appeared to demand a complaint as early as April 2008 – they were not prejudiced by the service errors and were afforded full participation in discovery (see Spath v Zack, 36 AD3d 410, 413 [2007]). Finally, construing the pleading in the light most favorable to plaintiff, as is required on consideration of [*4]a CPLR 3211 motion to dismiss, we find that it asserts actions and omissions by defendants that support viable claims for recovery (see Leder v Spiegel, 31 AD3d 266 [2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]).

Khedouri v Equinox (73 AD3d 532 [2010]) and Shelkowitz v Rainess (57 AD3d 337 [2008]), cited by the defense in support of dismissing the action, are both distinguishable on their facts. In Khedouri, the court found that dismissal was warranted because plaintiff made no attempt to serve the defendant, a fitness corporation, within 120 days of filing the summons and complaint. In addition, this Court found no merit to the plaintiff’s underlying claims, given the voluntary assumption of risks inherent in fitness training (73 AD3d at 532-533). Similarly, dismissal was granted in Shelkowitz, a personal injury action involving the accumulation of snow and ice at the defendant’s building, where plaintiff made no attempt to serve the defendant within 120 days of the filing of the action, and the extension request was made 20 months after filing the complaint (57 AD2d at 337). Here, unlike both Khedouri and Shelkowitz, plaintiff attempted service within the 120-day period, defendants were aware of the action soon after the filing of the complaint, and, viewing the amended pleading in the light most favorable to plaintiff, we find it sets forth actionable claims (Spath v Zack, 36 AD3d 410 [2007], supra; Mead v Singleman, 24 AD3d 1142 [2005], supra; Lippett v Education Alliance, 14 AD3d 430 [2005], supra).

Granting plaintiff the opportunity to pursue this action is not only consistent with the "interest of justice" exception set forth in CPLR 306-b, but also with our strong interest in deciding cases on the merits where possible (see e.g. L-3 Communications Corp. v SafeNet, Inc., 45 AD3d 1 [2007]). Accordingly, given our conclusion that the 2007 Action qualified for an extension of time to effect service pursuant to CPLR 306-b, we reverse the third order appealed from ."

Courts are ready to consider dismissal of legal malpractice cases, especially when the motion for dismissal is predicated on the "but for" portion of the legal malpractice formula.  Put another way, even on thinly produced evidence, and before there is any discovery, courts are willing and able to determine whether plaintiff could have succeeded in the underlying case, even though the defendant attorney has not been deposed, and has not been required to exchange documents. 

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire   2013 NY Slip Op 03566  decided on May 16, 2013 Appellate Division, First Department is an example. 
"The motion court properly dismissed the legal malpractice claim, as defendant failed to "meet the case within a case’ requirement, demonstrating that but for’ the attorney’s conduct the [plaintiff] client would have prevailed in the underlying matter or would not have sustained any ascertainable damages" (Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).
Longmire failed to show that he would have established a prima facie case of race-based discrimination (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 305 [2004]; see also McDonnell Douglas Corp. v Green, 411 US 792, 802-804 [1973]).

First, Longmire failed to show that he was terminated, as he himself testified in the underlying suit that he voluntarily left his former employment. In addition, based on his own allegations in the complaint and his affidavit, if he was terminated at all, it was due to his refusal to testify on his employer’s behalf in his employer’s matrimonial proceedings, and it was not due to Longmire’s race. Thus, Longmire would not have prevailed on such a claim had Warshaw pursued it in opposing summary judgment.

Warshaw’s decision not to move for reconsideration of the decision dismissing the underlying federal lawsuit was a strategic choice, and does not amount to legal malpractice because "[a]n attorney’s selection of one among several reasonable courses of action does not constitute malpractice’" (Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552 [1st Dept 2011], quoting Rosner v Paley, 65 NY2d 736, 738 [1985]). [*2]

The motion court correctly rejected Longmire’s submission of an expert affidavit on the issue of whether Warshaw acted negligently (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d "
 

As the economic times turn around, we are still seeing the results of the mortgage bubble.  in Ferreira v Citiwide Real Estate & Mgt. Co.   2013 NY Slip Op 50745(U)   Decided on May 8, 2013
Supreme Court, Queens County   Kitzes, J.  we see a typical issue.  What happens when the system spins, and the owner is put on the street?  Litigation follows. 

Of particular interest is what happens when an attorney negligently or carelessly enters into a stipulation on behalf of a client in "open" court?  Case law says that the client is bound.  however. we are puzzled by what seems to be a complete lack of a remedy here.

" The court finds that plaintiff’s proposed complaint adequately alleges a cause of action for legal malpractice based Mr. Solda’s alleged failure to review the mortgage foreclosure file, and move to vacate the judgment of default, foreclosure and sale, and the referee’s deed on the grounds of lack of personal jurisdiction, rather than entering into the stipulation of settlement which resulted in plaintiff vacating the subject premises. To the extent that Mr. Soldas asserts that he was only retained to represent Mr. Ferreira in the civil court matter, the retainer agreement does not identify the court in which the Deutsche Bank action was pending, does not contain an Index Number for the matter entitled "Deutsche Bank v J Ferreira, et al", and refers to "[a]ll legal matters relative to defense of claims arising out of the above referenced matter and the foreclosed property." The retainer agreement on its face, thus, does not specifically limit Mr. Solda’s representation of Mr. Ferreira to the civil court matter.

However, to the extent that Mr. Ferreira alleges he did not authorize Mr. Solda to enter into the stipulation in civil court, this claim cannot form a basis for legal malpractice. It is well settled that a stipulation made by the attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the stipulation (see Hallock v State of New York, 64 NY2d 224, 231 [1984]).

In view of the foregoing, with respect to the motion by defendant Deutsche Bank and Paul Solda, summary judgment dismissing the complaint is granted as against Deutsche Bank and denied as to Paul J. Solda, Esq.; cancellation of the notice of pendency against 24-27 Curtis Street, East Elmhurst, New York is granted; and an award of counsel fees and costs are denied. "

Plaintiff’s mother brought a personal injury case against the City of New York for plaintiff from an injury of December 20, 2002. She retained defendant attorneys to represent her. She discharged the attorneys via a "Consent to Change Attorneys" in August , 2006. She brought the legal malpractice caseFleyshman v Suckle & Schlesinger, PLLC ; 2012 NY Slip Op 00176 ; Appellate Division, Second Department. This case was dismissed on the statute of limitations.

"The Supreme Court erred in denying that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the first cause of action, alleging legal malpractice, as time-barred. The defendants sustained their initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in May 2010 (see CPLR 214[6]; Rupolo v Fish, 87 AD3d 684, 685; Krichmar v Scher, 82 AD3d 1164, 1165). In response, the plaintiff failed to raise a question of fact as to whether the statute of limitations was [*2]tolled by the doctrine of continuous representation. All of the documentary evidence demonstrated that the relationship necessary to invoke the continuous representation doctrine terminated in August 2006, and the plaintiff’s submissions did not indicate that her trust and confidence in the defendants continued, or was restored, after that date (see Rupolo v Fish, 87 AD3d 684; Krichmar v Scher, 82 AD3d at 1165; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488; Piliero v Adler & Stavros, 282 AD2d 511, 512; Aaron v Roemer, Wallens & Mineaux, 272 AD2d 752, 754-755).

Moreover, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged a violation of Judiciary Law § 487. Even as amplified by the plaintiff’s affidavit, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted "with intent to deceive the court or any party" (Judiciary Law § 487[1]; see Jaroslawicz v Cohen, 12 AD3d 160, 160-161). Further, the plaintiff’s allegation that the defendants "willfully delayed [her] recovery with a view to their own ends and benefit" is a bare legal conclusion, "which is not entitled to the presumption of truth normally afforded to the allegations of a complaint" (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969; see Judiciary Law § 487[2]). "
 

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. "
 

When clients depend upon the expertise of an attorney, and then end up with a bad result, they can successfully plead legal malpractice. Does a client settle the personal injury case or litigate on? Depending on how the attorney advises the client, there may or may not be legal malpractice. Here is an example.

Polanco v Greenstein & Milbauer, LLP 2012 NY Slip Op 04385, Appellate Division, First Department concerns a case in which plaintiff was struck in the neck by a piece of lumber. She alleged that the defendant was negligent in urging her to settle the case without a MRI and telling her that a MRI would not lead to a more favorable result. She settled the case for $ 20,000 only to find out later that she was permanently disabled.
 

"after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant’s negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations are sufficient to state a claim for legal malpractice (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 435 [2011]; see generally Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005]). Plaintiff was not required to [*2]show a likelihood of success in the underlying action, but was "required only to plead facts from which it could reasonably be inferred that defendant’s negligence caused [her] loss" (Garnett, 82 AD3d at 436). Plaintiff plead such facts. "
 

Reading the background information or the caption of some legal malpractice cases often reveals issues about the case itself.  In Stuart v Robert L. Folks & Assoc., LLP   2013 NY Slip Op 03319
Decided on May 8, 2013   Appellate Division, Second Department , we saw that the defense counsel’s name was all alone in the appearance section of the appeal.  Plaintiff appealed from the dismissal of his case, yet his name did not appear at the top, implying that plaintiff was pro-se and did not participate in oral argument.  Sometimes that’s a great decision, other times, not so great.
 

We read on to see that the Appellate Division decided the case on a somewhat related issue.  From the decision:  "Applying these standards to the instant case, the Supreme Court properly directed the dismissal of the legal malpractice cause of action. The plaintiff alleged that the defendants negligently advised him to prosecute an underlying action despite the fact that it was time-barred. However, the documentary evidence submitted by the defendants established that they specifically advised the plaintiff about probable statute-of-limitations problems, and that they reasonably commenced the underlying action despite such concern. Moreover, the documentary evidence also established that the underlying action was dismissed solely because the plaintiff failed to appear pro se with new counsel in that action within the time specified by the court, after the court had granted the motion of Robert L. Folks & Associates, LLP, a defendant in this action, to be relieved as counsel for the plaintiff in the underlying action. "

While the decision inZaidman v Marcel Weisman, LLC  2013 NY Slip Op 03323 Decided on May 8, 2013  Appellate Division, Second Department  does not specifically set forth what Plaintiff could not prove, we believe it would have been "notice" of a defective condition, and lack of proof (in the alternative) of creation of the dangerous condition.  In other words, could plaintiff prove that the plastic wrapper was left by the distributors or not?
 

"The defendant was retained to represent the plaintiff in an action to recover damages for injuries she allegedly sustained when she slipped and fell on a plastic-wrapped package of advertising flyers left on the steps of her residence. The defendant commenced an action on behalf of the plaintiff against the owner of the residence and against a marketing distribution company which allegedly distributed the flyers. The owner of the residence defaulted, and the defendant obtained a judgment against her and in favor of the plaintiff. Depositions of a representative of the marketing distribution company were not conducted until after the expiration of the statute of limitations, at which time the representative testified that the company did not start distributing that particular advertising flyer until a date subsequent to the plaintiff’s accident, and named another company which allegedly was the distributor at the relevant time. The defendant was unable to commence an action against this other company or against the publisher of the advertising flyers, as the statute of limitations had expired, and the plaintiff commenced this action alleging legal malpractice. "

"The plaintiff failed to establish her entitlement to judgment as a matter of law on the issue of defendant’s liability for malpractice, as she failed to establish, prima facie, that she would [*2]have prevailed in the underlying action against certain persons or entities whom she identified, even had they been timely joined as additional defendants (see Greene v Sager, 78 AD3d at 779; Theresa Striano Revocable Trust v Brancato, 71 AD3d 1122). "