The Appellate Division, Second Department is a busy place and provides many many decisions every year.  Many of them are definite, but sparse on detail.  In Montero v Cohen , 2013 NY Slip Op 01382  Decided on March 6, 2013   Appellate Division, Second Department  we see that this was a matrimonial case, we see that it is an international case, but we have no idea of what plaintiff’s claims were.  We do see that they were dismissed on summary judgment and affirmed.
 

"The plaintiff and his former wife, Nives Montero, married in 1973 in Argentina. They had no children, and, in 2001, the former wife commenced an action for a divorce. In 2005, after several years of litigation, the parties entered into a stipulation of settlement, and they were divorced by a judgment entered in August 2005 and amended a month later (see Montero v Montero, 85 AD3d 986). The defendant attorneys represented the plaintiff at that time, but the plaintiff became dissatisfied with the terms of the stipulation and later discharged the defendants and commenced this action against them to recover damages for legal malpractice. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court granted the motion. The plaintiff appeals.

The plaintiff failed to raise a triable issue of fact as to whether the defendants’ alleged breach of the duty of care proximately caused him to suffer actual and ascertainable damages (see McCoy v Feinman, 99 NY2d 295, 302; DeGregorio v Bender, 4 AD3d 385, 386). Accordingly, the Supreme Court properly granted the defendants’ [*2]motion. "
 

The legal malpractice statute of  limitations commences when the mistake is made.  It runs for three years from that date, although it may be tolled by the continuous representation doctrine.  That continuous representation doctrine requires that the attorney and client agree that more work needs to be done, that the attorney continues to work on the case, and that a relationship of trust and confidence ensues.  Here,in Singh v Edelstein  2013 NY Slip Op 01255   Decided on February 27, 2013 Appellate Division, Second Department  it looks like the post-nup agreement was the last act by the defendant, and that plaintiff did not discover the problem until too late.

"To dismiss a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired (see DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812). The statute of limitations for a cause of action sounding in legal malpractice is three years (see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538). The three-year period of limitations runs from the day of the alleged malpractice (see Alicanti v Bianco, 2 AD3d 373, 374, citing McCoy v Feinman, 99 NY2d 295, 306). The statute of limitations for legal [*2]malpractice may be tolled by the continuous representation doctrine " where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim’" (Zorn v Gilbert, 8 NY3d 933, 934, quoting McCoy v Feinman, 99 NY2d at 306).

Here, the defendant met his initial burden by establishing that the alleged malpractice occurred in November 2007, when the postnuptial agreement was executed, and that the action was commenced in August 2011, more than three years thereafter. Accordingly, the burden then shifted to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether she actually commenced this action within the applicable limitations period (see Jalayer v Stigliano, 94 AD3d 702, 703; DeStaso v Condon Resnick, LLP, 90 AD3d at 812; Williams v New York City Health & Hosps. Corp., 84 AD3d 1358, 1359; Krichmar v Scher, 82 AD3d 1164, 1165). The plaintiff failed to meet that burden (see Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 11; Rodeo Family Enters. LLC v Matte, 99 AD3d 781, 784). "

Dealy-Doe-Eyes Maddux v Schur   2013 NY Slip Op 01309  Decided on February 28, 2013 Appellate Division, Third Department  is the remaining portion of a twin legal malpractice case that has suffered grievous injury.  "Plaintiff commenced two legal malpractice actions against defendant, the second of which proceeded to trial and was dismissed by Supreme Court at the close of her proof. She has repeatedly sought, without success, to vacate the order of dismissal in that case (Maddux v Schur, 83 AD3d 1156 [2011]; Maddux v Schur, 53 AD3d 738 [2008]). Plaintiff then moved for a variety of relief, including to "clarify" the status of the two actions. Supreme Court found that the first action remained pending and otherwise denied plaintiff’s motion, and plaintiff appeals.

We affirm. Initially, to the extent that plaintiff is asserting a claim relative to the second action, including claims pursuant to CPLR 2221 or 5015 in that action, we agree with Supreme Court that it has already "proceeded through a well litigated course," and find the application to be repetitive, lacking grounds that could not have been presented in the prior proceedings (see [*2]Maddux v Schur, 83 AD3d at 1157-1158; Maddux v Schur, 53 AD3d at 739; see also Lambert v Schreiber, 95 AD3d 1282, 1283 [2012]). Further, we discern no error in Supreme Court’s determination that there had been no prior application to consolidate and join the two actions (see CPLR 602 [a]), nor in its direction for the parties to proceed to a conference before the court [FN2]. Plaintiff’s remaining arguments have been considered and found to be without merit. "

Its becoming harder to discern when a Judiciary Law 487 pleading will withstand a motion to dismiss on the pleadings.  In Cohen v Kachroo  2013 NY Slip Op 30416(U)  February 22, 2013
Supreme Court, New York County  Docket Number: 111735/10  Judge: Eileen A. Rakower  the motion to dismiss was denied, unfortunately without significant comment by the Judge.

"As set forth in the Verified Second Amended Complaint, Plaintiff entered into a retainer agreement with Defendants on January 5,20 10, wherein Defendants agreed to represent Plaintiff in prosecuting her claims against her husband in federal court, and to defend any claims brought by the attorney who previously represented her in the federal action. Pursuant to the retainer agreement, Plaintiff was to pay a $25,000 initial retainer, and to supplement that amount in order “to cover minimal costs of litigation.” The agreement further states:

We shall be compensated upon recovery, whether by settlement or judgment. . . compensation shall be in the amount awarded by the Court, but, in no event, shall We seek contingency compensation in excess of 30% . . , of any recovery plus reasonable expenses less the
retainer amounts received , . , Plaintiff paid the retainer amount. On June 7,20 10, Defendant KLS resigned as Plaintiff’s attorney in the federal action allegedly due to Plaintiff’s inability to meet
her financial obligations, Plaintiff alleges that Defendants threatened to abandon her action if she not did pay additional money to them, and that they tried to coerce her into adding payment terms to the retainer agreement. Plaintiff alleges that, as she was only required to pay the initial $25,000, and a percentage of any recovery made in the federal action, Defendants misrepresented to the federal court judge that she failed to pay her legal fees when they sought withdrawal, and that they subsequently abandoned the action without cause. Defendants now move to dismiss certain causes of action contained in Plaintiffs Verified Second Amended Complaint pursuant to CPLR 321 1 (a)(7).

Defendants seek to dismiss Plaintiffs claims for legal malpractice, breach of fiduciary duty, breach of the New York Rules of Professional Conduct, Breach of New York Judiciary Law 487 for failure to state a claim, and punitive damages. Defendants contend that “this matter does not constitute anything more than a fee dispute.”

Plaintiff‘s sixth cause of action alleges that Defendants breached Judiciary law, Section 487. Judiciary Law, Section 487 permits a party to recover treble damages against an attorney who:
1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, 2. Willfully delays his client’s suit with a view to his own gain; or, willfully
receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for. Plaintiff’s allegations concerning the alleged deceit by Defendants to Plaintiff and to the Courts are sufficient to establish a violation of Judiciary law 487( 1). “Because damages for breach of a contract are allowed as compensation for the  injury or damage resulting from such breach rather than by way of punishment, the general rule in actions for breach of contract is that the damages are limited to the pecuniary loss sustained, and that exemplary damages are not recoverable. However, punitive damages are recoverable in an action to recover for breach of contract upon a showing of gross, wanton, or willful fraud or of high moral culpability of the defendant.” (36 N.Y, Jur. 2d Damages Section 188). Here, Plaintiff‘s allegations of alleged coercion by Defendants are sufficient to support Plaintiffs prayer of relief for punitive damages."

Coverage under a legal malpractice insurance policy, is the sole reason for paying premiums, and probably one good reason that litigating attorneys fall asleep at night. They are handling multi-million dollar cases, earning big fees and (hopefully) helping their clients.  If it all goes wrong, and in the field of human events there are always mistakes, then the insurance is there to cushion the blow.  However, in legal malpractice policies there is the reporting clause.  In Property & Cas. Ins. Co. of Hartford v Levitsky   2013 NY Slip Op 30273(U)  January 25, 2013  Supreme Court, New York County  Docket Number: 109550/11  Judge: Lucy Billings  the attorneys did not timely report a problem, and lost their coverage.

"Defendants represented Paul Rowland as a plaintiff in an action in Monroe County for personal  injuries sustained on October 24, 2003, while Rowland was performing construction work
at a mall. On August 29, 2006, less than two months before the statute of limitations of three years expired, C.P.L.R. § 214(5), defendants commenced an action on Rowland’s behalf against
Wllmorite, Inc. Defendant Levitsky believed that Wilmorite owned the Eastview Mall where Rowland was injured, based On a sign at the premises and on common knowledge that Wilmorite owns all the large malls in the Rochester area, including Eastview." Steven Levitsky (Nov. 30, 2011) Ex. 8, at 1. On October 19, 2006, five days before the statute of limitations expired, Wilmorite answered Rowland’s complaint, Aff. of denying ownership of the mall where Rowland was injured. Almost 14 months later, at a deposition December 12, 2007, a witness on behalf of Wilmorite again denied that it owned the mall and claimed Great Eastern Mall, LP, was the owner. That same witness, however, testified that Great Eastern Mall and Wilmorite worked closely together and shared an office address.

Wilmorite was the construction manager on the site when Rowland was injured under a contract with Great Eastern Mall. Only then did defendants undertake any investigation and eventually learn that that contract required Great Eastern Mall to maintain insurance for Wilmorite covering persona1 injuries arising from employees’ operations at the site. Based on that relationship between Great Eastern and Wilmorite, defendants believed Rowland still would be entitled to recover from Wilmorite, e.q., N.Y. Labor Law §§ 200, 240(1); Walls v. Turner Constr. Co., 4 N.Y.3d 861, 864 (2005); Rizzuto v. Wenqer Contr. CO., 91 N.Y.2d 343, 352-53 (1998), or, despite the expiration of the statute of limitations, . to join Great Eastern Mall under the relation back doctrine. C.P.L.R. § 203(b). e.g.., Buran v Cural, 87 N.Y.2d 173, 178 (1995); Cooley v. Urban, 6 A.D.3d 1077, 1078 (4th Dep’t 2004 ) .

On February 5, 2008, Wilmorite moved to dismiss Rowland’s claims against it. On May 28, 2008, defendants opposed Wilmorite’s motion and cross-moved to join Great Eastern Mall as
a defendant. On July 30, 2008, the Supreme Court, Monroe County, granted Wilmorite’s motion and denied Rowland’s cross-motion,

On August 19, 2008, Rowland’s new attorney informed defendants that he had been retained for purposes of a possible malpractice claim against defendants. On May 4, 2009, Rowland  commenced, through his new attorney, a malpractice action against defendants.Defendants first notified plaintiff of a possible malpractice claim . August 29, 2008. Levitsky Aff. Ex. 8, at 2. From defendants’

From defendants’ vantage point, defendants thus notified plaintiff of the potential claim 30 days after the Supreme Court granted Wilmorite’s motion to dismiss Rowland’s action and denied his cross-motion to join Great Eastern Mall, 10 days after Rowland’s new attorney informed defendants Rowland was pursuing a possible malpractice claim, and several months before he commenced an actual malpractice action. Nevertheless, defendants’ notice came more than one year and 10 months after Wilmorite’s answer informed defendants that, with less than a week remaining before the statute of limitations expired, defendants had not sued the premises’ owner and more than eight months after deposition testimony confirmed that fact, then more than a year after the statute of limitations expired.

The notice provisions are not ambiguous. Nothing in their plain language suggests that 2(b) supersedes 2(a) or that 2(a) applies only to a claim after the policy period has expired.
Although 1 provides that "claims subsequently made against an insured arising out of that circumstance will be considered to have been made and reported during the policy period nothing in 1 suggests that the requirement to report circumstances that may give rise to a claim is limited to post-policy period claims. Coploff Aff. Ex. D § III(A) , at 8 (emphases omitted). Nor do  1’s terms indicate any modification of  2(a).

Once they became aware of circumstances that might produce a claim, however, it is irrelevant whether eventually they learned of evidence regarding Wilmorite’s relationship with the owner of Rowland’s injury site that led to a reasonable, good faith belief in his right to recover from Wilmorite or to join the owner. between Wilmorite and the owner until the December 2007 deposition, 14 months after defendants became aware of a potential claim, obligating them to notify plaintiff within 60 days. By the time of the deposition, defendants already had  breached that policy requirement and lost entitlement to coverage."

Rather than try to boil this case down, we quote fromHadar v Pierce  2013 NY Slip Op 30185(U)
January 4, 2013 Sup Ct, New York County Docket Number: 652811/11 Judge: Eileen Bransten. 

"This action arises from an underlying dispute between Eric Hadar and his father Richard Hadar. Eric Hadar has been a successful real estate developer for over fifteen years. Affirmation of John S. Rand, Ex. A. ("Comp!."), ~ 3. Eric Hadar suffered from drug addiction, and, on October 3,2008, he was arrested for drug possession. Id. at ~ 26. Eric Hadar subsequently entered a rehabilitation program. Id. Richard Hadar offered to "hold down the fort" at Eric Hadar’s real estate business
until Eric Hadar completed his treatment. Id. at ~ 28. Plaintiffs claim that, rather than "hold down the fort," Richard Hadar took advantage of his son’s absence to attempt to wrest control of the real estate business from Eric Hadar. Id. Plaintiffs claim that Richard Hadar’s plan to accomplish this scheme was to accuse his son of mismanagement of the real estate company and the EDHFT. Id. at ~ 28. For example, Plaintiffs assert that, in January or February 2009, Richard Hadar and his attorney,Michael Rosenbaum, told partners in Lawrence One, L.P., which was one of Eric Hadar’s
real estate ventures and Robert Weir, who was then the trustee of the EDHFT, that Eric Hadar: (1) mismanaged and neglected various properties and trusts; (2) engaged in self dealing by taking interest-free loans and misappropriating assets from EDHFT; (3) along with Allied Partners, charged excessive and unauthorized management fees; (4) negligently managed a property near Kennedy Airport known as "Carlton House"; and (5) was no longer able to manage real estate competently. Id at ~ 30. Rosenbaum prepared a letter containing these alleged mis representations and had Weir and Yohalem sign the letter. Id. at ~ 31. On February 11,2009, Richard Hadar, Ira Yohalem as trustee of the Joshua D. Hadar Family Trust ("JDHFT") and several holding companies for Eric Hadar’s various real estate developments (the "Holding Company Plaintiffs") brought an action against Eric Hadar, Allied and JFK (the "Prior Action"). Winter Affirm., Ex. A, p. 1. Defendants Rosenbaum and Patterson served as plaintiffs’ attorneys. Id. The plaintiffs in the Prior Action accused Eric Hadar of mismanaging and wasting the plaintiffs’ assets and investments. Id. at p. 9. The Prior Action alleged breach of fiduciary duty, breach of contract, and sought to remove Eric Hadar from his position as a manager of the Holding Company Plaintiffs and to enjoin Eric Hadar from taking any further action as manager. Id at pp. 18-24.

Defendants assert that the "judicial proceedings privilege" shields them from liability for bringing the Prior Action and the Surrogates Action. Defendants argue that all of Plaintiffs’ claims derive from the filing of these lawsuits, and, because the filing of lawsuits is protected by the judicial proceedings privilege, the complaint should be dismissed in its entirety. Defamation Claim Against Rosenbaum Ordinarily, "a statement made in the course of legal proceedings is absolutely privileged ifit is at all pertinent to the litigation." Sexter & Warmflash, PC. v. Margrabe,
38 A.D2d 163, 171 (1st Dep’t 2007) (internal citations and quotation marks omitted). However, the "privilege may not be extended to a litigant who commences a sham lawsuit for the sole purpose of defaming his adversary." Sexter & Warmflash, P.C., 38 A.D2d at 173, n. 5. Plaintiffs have alleged that Rosenbaum commenced the Prior Litigation against Eric Hadar solely to harass and disparage Eric Hadar in an effort to alienate his partners and investors in his real estate business. PI. Memo, pp. 8-9. Plaintiffs further claim that the allegations in the Prior Action and Surrogates Court Action were patently false, and that Rosenbaum conspired with Richard Hadar to invent the allegations. Plaintiffs assert that Rosenbaum was assisting Richard Hadar in his ultimate goal of taking over Eric Hadar’s real estate business."

The balance of the motion to dismiss was denied.  Read on, in the decision, for privity, privilege and documentary evidence issues.

To what extent did defendant attorneys participate in the negotiation and advice given to a doctor who had a condo along with a professional suite, and then rented the suite?  Was co-defendant the attorney who gave all the advice and defendant merely one who attended the closing?

In Gershkovich v Miller, Rosado & Algios, LLP   2013 NY Slip Op 50050(U) [38 Misc 3d 1211]  Decided on January 9, 2013  Supreme Court, Kings County  Schmidt, J. we see such a question.  More than that, we see the folly of an early motion for summary judgment, made before plaintiff testified.
 

"In support of its motion for summary judgment, Miller had submitted the affidavit of Christopher Rosado. In his affidavit (see Zamurs aff., Ex. B) therein, Mr. Rosado stated that he [*2]was retained by co-defendant, Arthur Welsher, solely to represent the plaintiff at the closing of the purchase of the units. All other aspects of the purchase were performed by the co-defendant. Mr. Rosado did not negotiate, or participate in any way in the negotiation of the contract of sale of the subject units. He did not review any documents with plaintiffs prior to the date of the closing. Plaintiffs did not seek his advice concerning the leasing of the units and Mr. Rosado did not represent them or prepare any documents concerning the leasing of the units.

In opposition to Miller’s motion, plaintiffs submitted the affidavit of Tibor

Gershkovich, a practicing medical doctor, in which he stated that Miller (through Rosado) advised him and his wife that "the commercial units were merely an appendage to the plaintiffs condominium, had zero percentage of the common elements, paid no condominium dues or assessments, and were not bound by any of the restrictions imposed upon the residential unit owners." See affirmation of Roman Popik dated September 5, 2012 (Popik aff.), Ex. B, ¶ 29. Dr. Gershkovich also stated in his affidavit that, following the advice of Miller, he did not submit prior notice to the Board of Managers concerning the entering into the leases for the subject units. Id., ¶ 20.

This court, in denying Miller’s motion for summary judgment, found that Mr. Rosado’s affidavit was sufficient to make a prima facie showing that Miller did not negligently advise the plaintiffs. However, the court found that the affidavit of Dr. Gershkovich raised a question of fact as to whether Mr. Rosado advised the plaintiffs that the commercial units were not bound by any of the restrictions imposed upon the residential unit owners.

Subsequently, on January 25, 2012 and March 28, 2012, the deposition of plaintiff Tibor Gershkovich was held. See Zamurs aff., Ex. C (transcript).

Miller now moves to renew its summary judgment motion, arguing that the testimony of plaintiffs at their depositions contradict the affidavit relied on by plaintiffs to defeat Miller’s motion for summary judgment and also provide evidence which clearly demonstrates that plaintiffs cannot establish the requisite elements of legal malpractice against Miller.

A motion for leave to renew is addressed to the sound discretion of the court." Matheus v Weiss, 20 AD3d 454, 454-455 (2d Dept 2005). Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e] [2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion." CPLR 2221(e) (3).

In the matter at bar, the court finds that Miller has established reasonable justification for his initial failure to submit the new facts in that the evidence revealed by the testimony of plaintiff Dr. Tibor Gershkovich was not known at the time of the making of the original motion for summary judgment. Therefore, the court grants Miller’s motion to renew its prior summary judgment motion.

Upon renewal of Miller’s motion for summary judgment, the court further finds that Miller has established entitlement to judgment dismissing plaintiffs’ complaint.

At his deposition, Dr. Gershkovich testified that the contract of sale for the subject units was negotiated solely by Mr. Welsher. Tr. at 31. According to plaintiff, Mr. Welsher told him that the units could be rented out like a commercial unit. Id. Plaintiff did not speak to anyone other than Mr. Welsher prior to the signing of the contract of sale. Id. at 48.

At the closing, plaintiffs were represented by Mr. Rosado. Id. at 59. According to Dr. [*3]

Gershkovich, he spoke to Mr. Rosado one week prior to the closing. Id. at 60. During the conversation, he asked Mr. Rosado if he reviewed all of the documents needed for closing on the units and whether there would be any problems during the closing. Id. Significantly, however, Dr. Gershkovich acknowledged that he did not mention any particular problems that he may have had in mind. Id. "

Plaintiff must always prove that departures from good and accepted practice by the defendant were a proximate cause of the injury.  Note that there need be no proof that the departure was the proximate cause.  In Arbor Realty Funding, LLC v Herrick, Feinstein LLP   2013 NY Slip Op 01216
Decided on February 26, 2013   Appellate Division, First Department  we see such an application. 
"Defendant argues that even if, but for its allegedly erroneous legal advice as to zoning issues, plaintiff would not have made bridge loans to the developer of a residential tower at 303 East 51st Street in Manhattan, plaintiff cannot establish legal malpractice or negligent representation because it cannot demonstrate that the zoning advice proximately caused its loss on the defaulted loans. Plaintiff made the loans in mid-2007. Defendant contends that the crane collapse at the project site in March 2008, which killed seven people, the market collapse beginning in late 2007 and continuing through 2008, and plaintiff’s insufficient response to the Department of Buildings letter notifying plaintiff of its intent to revoke the project’s building permits, constituted intervening events that severed the causal link between defendant’s zoning advice and plaintiff’s loss (see Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]).

There is, however, evidence in the record that raises an issue of fact as to causation (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). It appears [*2]that potential takeout lenders had concerns about the zoning issues even before March 2008. To the extent later events contributed to plaintiff’s loss, they are properly considered by a fact-finder (see e.g. Schauer v Joyce, 54 NY2d 1 [1981]). "