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). "

Frequently, clients discern mistakes make in their cases, and wish to start a legal malpractice case.  Unfortunately, departure from good practice is but one of the four elements of legal malpractice.  The merit of most legal malpractice cases is determined by analysis of the middle two points.  Was the mistake a proximate cause of damage and would the same result have obtained "but for" the mistakes of counsel. 

In Grimaldi v Newman & Okun, P.C. 2013 NY Slip Op 02663  Decided on April 18, 2013  Appellate Division, First Department plaintiff argues that a failure to seek leave to file a late notice of claim. The Court, however, concentrated on the lack of "serious physical injury" in this motor vehicle injury case. In the end a court found that plaintiff could not show either of the two middle elements of legal malpractice.
 

"Defendants contend that the legal malpractice action was correctly dismissed because, notwithstanding any alleged failure on counsel’s part, plaintiff would not have prevailed in the underlying serious injury action since the record evidence shows that plaintiff could not have raised a triable issue of fact as to whether he suffered a serious injury.

Plaintiff alleged that the July 2003 accident resulted in serious injury to his right knee under three statutory categories. Defendants’ evidence in the form of, inter alia, (a) pre-2003 medical reports noting prior incidents of trauma to plaintiff’s right knee, (b) plaintiff’s sworn statements regarding his daily activities in the first 180 days following his 2003 accident, and (c) a medical examination and opinion from defendants’ expert orthopedist, was sufficient to establish prima facie entitlement to summary judgment dismissing plaintiff’s serious injury allegations.

Plaintiff’s proof of the alleged serious injury was insufficient to support his claim. Plaintiff did not offer proof of objective testing, accompanied by quantified results as would support the claimed knee limitations, apart from early range-of-motion flexion tests whose findings, as to restrictions, were improperly premised upon subjective complaints of pain (see generally Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]). The qualified assessment of plaintiff’s right knee condition, made by plaintiff’s treating orthopedist, whose opinion in support of plaintiff’s serious injury claim was premised upon his observations made during an arthroscopic procedure he performed on plaintiff’s knee in 2006, failed to address the "unremarkable" findings of a 2003 MRI study, which was ordered approximately nine days after [*2]plaintiff’s accident. Moreover, the surgical observations made by plaintiff’s orthopedist did not objectively explain how alleged limitations in plaintiff’s right knee differed from what would be the knee’s normal function, purpose and use (see Toure, 98 NY2d at 350). Further, by 2011, plaintiff’s orthopedist acknowledged that plaintiff had noted only occasional weather-related complaints with his right knee. Plaintiff was able to resume skiing, but not running.

Plaintiff’s own sworn statements, including that he returned to work a week after the accident and was primarily unable to partake in regular recreational exercise, undermined his claim that he was unable to partake in substantially all the material acts that constituted his usual and customary daily activities for at least 90 of the first 180 days (see Valdez v Benjamin, 101 AD3d 622, 623 [1st Dept 2012]; Atkinson v Oliver, 36 AD3d 552 [1st Dept 2007]). Moreover, plaintiff’s treating orthopedist failed to substantiate, via a medically objective opinion, whether plaintiff lacked the capacity to engage in substantially all of his customary daily activities for 90 out of the first 180 days (see e.g. DeSouza v Hamilton, 55 AD3d 352 [1st Dept 2008]; Ortega v Maldonado, 38 AD3d 388 [1st Dept 2007]).

Further, as found by the motion court, plaintiff’s unexplained gap in treatment between April 2006 and February 2011 undermined his serious injury claim (see e.g. Pommells v Perez, 4
NY3d 566 [2005]; Valdez, 101 AD3d at 623). "

Is it that Plaintiff could not articulate a reason why Defendant made a mistake that caused him damage?  Is it that the Appellate Division just didn’t like the case and agreed that it should be dismissed?  Did the attorneys make a subjectively and objectively reasonable choice of strategy that just didn’t work?  We’ll never know. 

Siracusa v Sager   2013 NY Slip Op 02563   Decided on April 17, 2013   Appellate Division, Second Department  stands for the proposition that it might be any of these three. 
"Initially, we agree with the plaintiff’s contention that the Horn defendants did not establish their entitlement to dismissal of the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1). "A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) will be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" (Bodden v Kean, 86 AD3d 524, 526; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 810). Here, the evidence submitted by the Horn defendants [*2]either was not documentary within the meaning of CPLR 3211(a)(1) or failed to utterly refute the plaintiff’s allegations and conclusively establish a defense as a matter of law (see Rietschel v Maimonides Med. Ctr., 83 AD3d at 811; Fontanetta v John Doe 1, 73 AD3d 78, 84-85; see also Bodden v Kean, 86 AD3d at 526).

However, the Supreme Court correctly granted the Horn defendants’ motion to dismiss the complaint insofar as asserted against them to the extent that it was predicated on CPLR 3211(a)(7), as well as the separate motion of the defendants Audrey Sager, Steven Gellerman, and Sager & Gellerman, Esq., to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7).

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87; Rietschel v Maimonides Med. Ctr., 83 AD3d 810).

To succeed in a legal malpractice action, a plaintiff must prove that his or her attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, and that this failure proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Markowitz v Kurzman Eisenberg Corbin Lever & Goodman, LLP, 82 AD3d 719; Frederick v Meighan, 75 AD3d 528, 531; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 640-641).

Here, the plaintiff’s allegations with respect to whether the defendants exercised the degree of care, skill, and diligence commonly possessed by a member of the legal community amounted to no more than his dissatisfaction with their "strategic choices" and, thus, as a matter of law, did not support a malpractice claim (Albanese v Hametz, 4 AD3d 379, 380; see Rosner v Paley, 65 NY2d 736, 738; Bernstein v Oppenheim & Co., 160 AD2d 428, 430-431; cf. Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562). In any event, the complaint fails to set forth facts sufficient to allege that the defendants’ purported negligence proximately caused the plaintiff to sustain actual and ascertainable damages (see Wald v Berwitz, 62 AD3d 786). "

A basic rule of legal malpractice is that an attorney may not be granted a fee by a court or tribunal if there is legal malpractice present.  Since an attorney may not obtain a fee if there has been legal malpractice, it follows, ipso facto, that if a court or a tribunal grants a fee to an attorney, then there can have been no legal malpractice.  For the most part, it does not matter whether the question of legal malpractice has been raised or not.  So it goes in Bob v Cohen   2013 NY Slip Op 02499
Decided on April 16, 2013   Appellate Division, First Department.  In Bob the attorneys asked for a fee in the WC proceedings, and then used that fee as a defense to legal malpractice.
 

"On the merits, defendants were entitled to dismissal of this legal malpractice action commenced by their former client on res judicata grounds. The Workers Compensation Board’s award of legal fees to defendants, imposed as a lien against the ultimate award of compensation to plaintiff (see Workers’ Compensation Law § 24), precludes plaintiff’s present claim that defendants represented him negligently, a claim that could have been raised in opposition to defendants’ fee application (see e.g. Lusk v Weinstein, 85 AD3d 445 [1st Dept 2011], lv denied 17 NY3d 709 [2011]; Zito v Fischbein Badillo Wagner Harding, 80 AD3d 520 [1st Dept 2011]). "
 

In this subrogation case, an insurance company has successfully pleaded fraud and legal malpractice.  The insurance company plaintiff proceeded in the subrogation and alleged that legal malpractice was committed in failing to pursue a default judgment.  They claimed fraud when the law firm billed for making a motion for a default judgment when it did not. So, in Vermont Mut. Ins. Co. v McCabe & Mack, LLP   2013 NY Slip Op 02392   Decided on April 10, 2013   Appellate Division, Second Department the AD found:

 "However, the Supreme Court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging fraud. "To properly plead a cause of action to recover damages for fraud, the plaintiff must allege that (1) the defendant made a false representation of fact, (2) the defendant had knowledge of the falsity, (3) the misrepresentation was made in order to induce the plaintiff’s reliance, (4) there was justifiable reliance on the part of the plaintiff, and (5) the plaintiff was injured by the reliance" (Pace v Raisman & Assoc., Esqs., LLP, 95 AD3d 1185, 1188-1189; see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553; New York Univ. v Continental Ins. Co., 87 NY2d 308). Here, the complaint alleged that the defendants committed fraud by misrepresenting that they "made a motion for a default judgment" when they "never made, filed, or drafted" such a motion, that the plaintiff relied on the misrepresentation, and that the defendants billed the plaintiff for drafting the motion. Those allegations were sufficient to state a cause of action to recover damages for fraud (see Guggenheimer v Ginzburg, 43 NY2d at 275; Rabos v R & R Bagels & Bakery, Inc., 100 AD3d 849, 853).

The defendants’ alternate ground for dismissal of the causes of action alleging fraud, that those claims were duplicative of the causes of action alleging legal malpractice (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545), is without merit. The evidence submitted by the defendants does not establish that the plaintiff sustained no other damages, separate and apart from those sought as a result of the alleged legal malpractice, as a result of the defendants’ alleged fraudulent conduct (see Guggenheimer v Ginzburg, 43 NY2d at 274-275; East Hampton Union Free School Dist. v Sandpebble Bldrs. Inc., 66 AD3d 122, affd 16 NY3d 775; Fleming v Kamden Props., LLC, 41 AD3d 781). Where, as here, tortious conduct independent of the alleged malpractice is alleged, a motion to dismiss a cause of action as duplicative is properly denied (see Lax v Design Quest N.Y. Ltd., 101 AD3d 431; Rupolo v Fish, 87 AD3d 684, 686).

Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the causes of action alleging fraud.

If one reads enough legal malpractice cases, there are interesting overlaps.  One such overlap, with surprising results came up today.  in Angeles v Aronsky   2013 NY Slip Op 02454   Decided on April 11, 2013   Appellate Division, First Department  we see the following: "For a claim for legal malpractice to be successful, "a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [internal citation omitted]). A client is not barred from a legal malpractice action where there is a signed "settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel" (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435 [1st Dept 2011] [internal quotation marks omitted], quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]). "

It has been the law in NY for some time that a settlement of the underlying action that has been effectively compelled does not bar a subsequent legal malpractice action.  The overlap we speak of was created by a second decision in Garnett v Fox, Horan & Camerini, LLP   2013 NY Slip Op 50560(U)   Decided on April 5, 2013   Supreme Court, New York County   Kern, J.   Here, the Garnett claims were ultimately dismissed.  "Plaintiff commenced the instant action asserting, among other things, a claim for legal malpractice against defendant in relation to defendant’s representation of Boylan International, Inc. ("Boylan International") in an underlying rent non-payment action. Defendant now moves for an order granting it summary judgment and dismissing plaintiff’s complaint. For the reasons set forth below, defendant’s motion is granted."

"On or about October 22, 2008, plaintiff commenced the instant action. Plaintiff’s initial complaint contained five causes of action: (1) legal malpractice in failing to properly prepare for trial; (2) legal malpractice in failing to properly conduct the trial; (3) legal malpractice in negotiating and coercing the settlement; (4) legal malpractice in acting under a clear conflict of interest in coercing the settlement; and (5) fraud in attempting to dissuade Boylan International from taking action to vitiate the settlement. Fox Horan moved to dismiss the initial complaint and the court granted its motion. However, it also granted leave to amend the first three causes of action for legal malpractice. Boylan International then submitted its Amended Complaint and Fox Horan again moved to dismiss. The court granted Fox Horan’s motion and Boylan International appealed. On appeal, the Appellate Division First Department reversed the lower court’s dismissal, reinstated the malpractice claims and remanded the case for response, discovery and trial. Fox Horan has now made the instant motion for summary judgment.On a motion for summary judgment, the movant bears the burden of presenting sufficient evidence to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). Once the movant establishes a prima facie right to judgment as a matter of law, the burden shifts to the party opposing the motion to "produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim." Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). However, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat summary judgment. Id. "

Representation of clients may be limited or general.  An attorney-client relationship is considered to be general unless it is specifically limited by a retainer agreement.  That retainer agreement had best be very specific, and it should set the limits quite clearly.  If it does not, then the attorney can be held responsible for all acts that should have been performed, even if outside the scope of the "limited" retainer.

In Superior Tech. Solutions, Inc. v Rozenholc ;  2013 NY Slip Op 30690(U)  April 1, 2013
Sup Ct, New York County  Docket Number: 100856/12  Judge: Joan A. Madden we see one such example.  The attorney says that he was retained solely for  potential litigation with the commercial landlord.  The client then, after some representation, fails to renew the lease.  Is the attorney responsible?

"However, the issue of whether Rozenholc had a duty to renew the plaintiffs’ lease is different from whether the plaintiffs’ orally renewed their lease, and this issue was not addressed in the prior two actions. In the New York Supreme Court decision dated May 1 1,20 1 1 , the court merely determined that Lee’s alleged attempt to orally renew the lease was insufficient under the terms of the lease. The Bankruptcy Court similarly discussed the validity of Lee’s oral lease renewal. A determination of whether the lease renewal was within Rozenholc‘s duties was not made within the course of either litigation, so the doctrine of law does not apply.

Under this standard, the complaint adequately states a cause of action for legal malpractice based on allegations that Rozenholc failed to advise the plaintiffs of the date that the renewal option had to be exercised? and/or failed to exercise the renewal option on behalf of plaintiffs and that but for Rozenholc’s negligence, Superior would not have become holdover tenant, subject to an eviction proceeding and ineligible for a buyout offer, and therefore damaged.

The court also rejects Rozenholc’s argument that he is not the proximate cause of plaintiffs’ damages due to successor counsel’s liability. While it has been held that predecessor counsel’s negligence may not be the proximate cause of plaintiffs’ alleged damages when subsequent counsel had a sufficient opportunity to protect plaintiffs’ rights (E& Perks v. Lauto & Garabedian, 306 A.D.2d 261,262 (2nd Dept 2003), this rule is inapplicable here, as the right to renew the relevant lease expired on October 3 1,20 10, before the subsequent counsel was retained ."

Finally, the documentary evidence and in particular the retainer agreement does not establish that the legal malpractice action is insufficient as a matter of law. Specifically, the retainer agreement which describes Rozenholc’s services to include which includes bringing actions to protect plaintiffs’ interest in the lease and representing plaintiffs in negotiations with the landlord arguably can be interpreted to include exercising plaintiffs’ renewal option under the lease."

Hearing that your legal malpractice case is "unavailing" is terrifying.  Nevertheless, this case was dismissed, appealed, reversed, remanded, and immediately dismissed again, this time on summary judgment.  Garnett v Fox, Horan & Camerini, LLP  2013 NY Slip Op 30703(U)  April 5, 2013  Sup Ct, New York County  Docket Number: 114079/2008  Judge: Cynthia S. Kern is the story of a business gone bad, with crippling rent that it could no longer handle.

"Plaintiff commenced the instant action asserting, among other things, a claim for legal malpractice against defendant in relation to defendant’s representation of Boylan International,
Inc. (“Boylan International”) in an underlying rent non-payment action. Defendant now moves
for an order granting it summary judgment and dismissing plaintiffs complaint. For the reasons
set forth below, defendant’s motion is granted.

Over the years, Boyland International failed to make payments required by the Lease and
subsequent non-payment proceedings were initiated, including the Underlying Action herein at
issue. The Underlying Action was brought on or about August 2003, On or about April 2 1,
2004, Boylan International retained Fox Horan to represent it in the Underlying Action pursuant
to a written retainer (the “Retainer Agreement”). At that time, Boylan International was already
in default and facing eviction. However, after retaining Fox Horan, a stipulation was entered into
which, among other things, allowed Boylan International to Answer and assert an affirmative
defense. During the course of the litigation, the landlord’s attorney became ill and the case was
marked off the calendar for approximately two years. During this period, Boylan International
did not pay rent or additional rent and the arrears grew to approximately $675,000.

During trial, Fox Horan presented expert testimony of Gary Goldman in order to establish
that Boylan International should not be liable for $243,897 of the $276,000 in real estate tax
arrears based on the New York Supreme Court’s holding in Blacktar Publishing Company v.
460 ParkAssociates, 137 Misc.2d 414 (N.Y. Sup. Ct. 1987) (the“Blackstar defense”). In
Blackstar, the court found that a tax escalation clause in a commercial lease requiring the tenant
to pay as additional rent a percentage of real estate taxes for every year during the lease did not
necessarily require the tenant to pay for any increased tax assessments which resulted from
extraordinary improvements to the premises that were not contemplated by the parties at the time
the lease was executed. See id. Thus, both parties agree that the testimony of Mr. Goldman was
crucial as this was its only viable defense to the non-payment of the real estate taxes. Fox Horan
tried to offer various exhibits to corroborate the testimony of Mr. Goldman but the Court refused to admit these exhibits based on objections by opposing counsel. Both parties herein agree that
these exhibits were “improperly precluded.” After Mr. Goldman finished his testimony, Fox
Horan called Ms. Boylan to testify. While on the stand, after having been sworn in, Ms. Boylan
addressed the Judge directly before counsel from Fox Horan had an opportunity to ask any
questions. The Judge then went off the record and a settlement was reached (the “Stipulation of
Settlement”).

In the instant action, the defendant has presented sufficient evidence demonstrating the
absence of any material issues of fact warranting a grant of summary judgment in its favor. A
prima facie case for legal malpractice requires a plaintiff to establish “that the defendant attorney
failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member
of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would
have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence.” Lsder
v. Spigel, 9 N.Y.3d 836 (2007) (quoting Am-Base Corp. Y: Davis Polk & Wardwell, 8 N.Y.3d 6
 

Specifically, when the underlying action was settled, a plaintiff must show that
but for its attorney’s actions it would not have entered into the settlement or it would have been
entitled to a more favorable settlement. See Rau v. BorenkofJ; 262 A.D.2d 388,389 (lst Dept
1999); See Rogers v. Ettinger, 163 A.D.2d 257 (lst Dept 1990). Thus, in order to succeed “on a
motion for summary judgment to dismiss the action, a defendant must proffer admissible
evidence establishing that the plaintiff is unable to prove at least one of the essential elements of
his or her case.” E. Suydam v. J 0 ’Neill, 276 A.D.2d 549 (2ndD ept 2000).