Defendant attorney represented buyer in a real estate transaction, in which she obtained only a part of what she expected to get.  Who was at fault, the attorney or the title company?  The Court decided that the title company was not responsible and the attorney went to trial.  After trial, in which the buyer obtained a verdict, the attorney once again tried to sue the title company.  Result?  Dismissal upon a finding of collateral estoppel.

In Herrick v Statewide Abstract Corp.  2013 NY Slip Op 50152(U)   Decided on February 5, 2013
Supreme Court, Westchester County   Connolly, J.  we see that "Herrick, an attorney, represented Luis and Maria Rojas, who were the plaintiffs in the prior action, in all aspects of the purchase transaction of a parcel of property located at 16 Montana Place, White Plains, New York, from negotiation of the contract of sale through the closing of title. Along with the contract of sale, the purchasers were provided with a survey depicting the property to be purchased. The contract of sale included a legal description of the property attached as Schedule "A," which described the property as a "parcel of land, situate, lying and being in the Town of Greenburgh, County of Westchester, State of New York, known and designated as part of Lot No. 8 as shown on the certain Map . . . ."

In connection with the purchase, Herrick, on behalf of Rojas, ordered a title search and report of the subject property through Statewide and requested that Statewide certify title to Rojas’ title insurer, Stewart Title Insurance Company. Herrick provided Statewide with the Schedule "A" legal description of the property and a survey that described the property as a "portion of Lot No.8." Statewide used these documents to conduct its title examination and prepare its title report of the property. This same legal description was included in the title insurance policy issued by Stewart Title, as well as a bargain and sale deed delivered to Rojas from the sellers at the closing held on June 6, 2005. Statewide’s title report stated in several places, including in the Schedule B Title Exceptions and in copies of two deeds by which the sellers acquired the property in 2003, that the subject property to be conveyed was only a portion of Lot No. 8. The parcel conveyed to Rojas at closing consisted of approximately .45 acres of land improved by a residential home. The remaining parcel, which the sellers retained, consisted of approximately .34 acres of unimproved land that had been conveyed to the sellers by quitclaim deed in 2003.

Rojas resided at the property until 2007, when they decided to relocate for employment reasons. As part of the relocation process, Rojas’ employer offered the services of a relocation [*3]company to purchase the property. The relocation company ordered a title search and report, wherein it was revealed that Rojas did not own the entirety of the parcel of land located at 16 Montana Place, in that only a "portion of Lot No. 8," referred to as the house parcel, was conveyed to Rojas, with the sellers retaining title to the remaining parcel containing unimproved land. Upon discovering that the property consisted of only a portion of Lot No. 8, the relocation company would not accept title to the property.

Rojas thereafter commenced a lawsuit against various defendants, including Statewide, Herrick, Stewart Title, the sellers, the sellers’ attorney, and the real estate brokers and agents involved in the 2005 Rojas purchase transaction. The action was entitled, Luis X. Rojas and Maria Rojas v. Andrew Paine, et. al., Westchester County Supreme Court Index Number 27830/07. The Rojas complaint alleged that, despite the fact that the sellers owned two parcels comprising Lot No. 8, the contract of sale and deed purported to sell only a portion of the subject property, the house parcel. The complaint alleged the defendants failed to disclose that the subject property was illegally subdivided by deed into the house parcel and remaining parcel without the permission, consent, or authorization of the Town of Greenburgh, and that due to materially false representations about the true nature and condition of the title issues involving the subject property, Rojas only received the house parcel at the time of closing. Rojas alleged that the illegal subdivision of the parcel created an objection to title, rendering title unmarketable. As is relevant herein, Rojas asserted a cause of action against Herrick for legal malpractice, and asserted three causes of action against Statewide, sounding in breach of contract, negligence, and breach of insurance agreement.

Rojas claimed that Statewide breached its contract with them by failing to properly perform, investigate, and report upon title issues. Rojas also claimed that Statewide negligently, recklessly, and carelessly failed to properly perform, investigate, and report upon title issues and failed to raise an exception to title relative to the illegal subdivision and encroachments. In its answer to the Rojas complaint, Herrick asserted a cross-claim against Statewide for contribution and indemnification, alleging that if the plaintiffs were damaged, such damages were caused by the negligent, intentional, or reckless conduct, acts, or omissions of Statewide and therefore, Herrick would be entitled to judgment over against Statewide for any judgment plaintiff may recover against Herrick.

Following motions to dismiss by the various defendants, the only remaining defendant at the time of trial was Herrick. By decision and order entered on June 29, 2010, the Hon. William J. Giacomo, J.S.C., granted Statewide summary judgment dismissing Rojas’ claims for negligence and breach of insurance contract. The court initially denied Statewide summary judgment on the breach of contract cause of action, stating "[i]n view of the fact that the tax lot issue was subsequently discovered . . . there is clearly a question of fact regarding whether Statewide breached its contract with plaintiffs to perform a proper title search which included a notation that the portion of Lot 8 being purchased by plaintiffs was part of a larger lot for which there was no filed subdivision in the Town of Greenburgh." It further held that "[u]nder the contract for searching titles the defendant may be liable for any damages which its negligence [*4]may have imposed upon the plaintiff," and that "liability can arise in the event the search is performed in a negligent manner."

Thereafter, Statewide moved to reargue Justice Giacomo’s denial of summary judgment on Rojas’ breach of contract claim. The motion was opposed by Rojas, who argued Statewide should be held liable for failing to properly conduct a title search and report title defects. Defendant Herrick also opposed Statewide’s motion and moved for summary judgment against the plaintiffs. In Paul Herrick’s affidavit dated December 22, 2010, he argued:

"The title report prepared by Statewide . . . was defective in several significant respects. First, the title report failed to disclose that the property plaintiffs had contracted to purchase did not conform with the legal description and was only a portion of the tax lot owned by sellers, Andrew and Karen Paine ("the Paines"). Second, the title report included an outdated tax map, which did not include current including their option to terminate the transaction upon receipt of the title report."

By decision and order dated September 30, 2011, the court granted reargument to Statewide, and upon reargument, dismissed Rojas’ breach of contract claim against Statewide.Herrick now commences the instant action against Statewide, seeking contribution and indemnification. The complaint alleges that Statewide negligently performed a search of the public records, and due to Statewide’s faulty title search, Herrick was not informed that the property upon which the house parcel was located constituted only a portion of the tax lot. Herrick alleges that had it been properly informed by Statewide that the property was located on only a portion of the tax map, Herrick would have advised Rojas to exercise their contractual rights to rescind the contract and refuse to purchase the property.

Statewide moves to dismiss the complaint pursuant to CPLR § 3211 (a) (1) and (5) on grounds that a defense is based upon documentary evidence and the cause of action may not be maintained because of collateral estoppel and res judicata. Herrick opposes the motion, arguing that it relied upon Statewide’s faulty title report in counseling Rojas to purchase the property, which resulted in the damages sustained by Rojas. Herrick claims it was forced to concede liability and accept responsibility for the acts of its agent, Statewide, in preparing a defective title report, and that the issue of Statewide’s liability to Herrick was never determined in the prior action.

"The party seeking the benefit of the doctrine of collateral estoppel must establish that the identical issue was necessarily decided in the prior action and is determinative in the present action" Mahler v Campagna, 60 AD3d 1009, 1011 [2d Dept 2009]). "Once the party invoking the doctrine discharges his or her burden in that regard, the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (id.).

Here, Statewide has demonstrated that the identical issue was decided in the prior action and is determinative of the present action, while Herrick has failed to sustain its burden to establish that it lacked a full and fair opportunity to litigate the issue as a party defendant in the prior action. Herrick’s recourse, to which it is availing itself, is to appeal from the orders and judgment in the prior action— not to commence a new action with the hope of relitigating the issue in its favor. Because the identical issue was already litigated and decided, and Herrick had a full and fair opportunity to litigate the issue in the prior action, the action against Statewide is dismissed on the ground of collateral estoppel. "

This case appears to be a fee dispute with a healthy counterclaim.  We glean that defendants waited until (and perhaps only because) they were sued for legal fees.  They responded with a legal malpractice counterclaim.  In Debevoise & Plimpton LLP v Candlewood Timber Group LLC
2013 NY Slip Op 00408   Decided on January 29, 2013   Appellate Division, First Department defendants are permitted a legal malpractice counterclaim only as a monetary offset to plaintiff’s claims.  They are precluded from a positive award above the claims of plaintiff because of the statute of limitations.

Plaintiffs were permitted only one motion for summary judgment, which they had used for a statute of limitations argument. 

"The court properly found that defendants’ legal malpractice counterclaim was time-barred to the extent defendants seek monetary damages (see CPLR 214[6]). The most recent allegation of negligence occurred in May 2006 — more than three years before this action was commenced in November 2009 — and defendants failed to show that the continuous representation doctrine applies. "There were no clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney" (Matter of Merker, 18 AD3d 332, 332-333 [1st Dept 2005] [internal quotation marks omitted]), nor was there "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (McCoy v Feinman, 99 NY2d 295, 306 [2002]). Defendants did not submit affidavits showing "that facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]). As both sides agree, defendants’ malpractice counterclaim is not time-barred insofar as defendants seek to set off their malpractice damages against any recovery plaintiff might obtain (see CPLR 203[d]).

Plaintiff is correct that its second summary judgment motion was not duplicative of its first: Its first motion dealt only with the statute of limitations, whereas its second dealt with the merits of defendants’ malpractice counterclaim. However, "[a]s a general rule, parties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment" (NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427 [1st Dept 2011] [internal quotation marks and brackets omitted]). Plaintiff has not demonstrated that any of the exceptions to this rule apply (see e.g. Jones v 636 Holding Corp., 73 AD3d 409 [1st Dept 2010]; Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39 [1st Dept 2002]). "

Attorney is hired to represent funeral home for a disinterment.  In the retainer agreement, it is specifically set forth that the attorney will also be representing the person requesting the disinterment.  A $10,000 retainer is given, and the work begun.  It ends successfully.  When the bill is sent, the funeral home refuses to pay.  We presume that there was some problem between the person and the funeral home.  In any event attorney does not get paid.  McKeon v SCI New Jersey Funeral Serv., Inc.  2013 NY Slip Op 30218(U)  January 29, 2013  Sup Ct, New York County
Docket Number: 112504/11  Judge: Donna M. Mills turns into an account stated case with defendant interposing 17 defenses.  We reproduce Judge Mills’ decision, which works through the affirmative defenses.

"Turning to the other relief sought, the court shall considered the merit of the seventeen affirmative defenses which are as follows: ( I ) failure to state a cause of action; (2) unclean hands; (3) waiver; (4) statute of limitations and/or laches; (5) estoppel; (6) breach of contract; (7) violation of the notice provisions; (8) violation of the statute of frauds; (9) churning; (10) unconscionability; (11) violation of the Code of Professional Responsibility; (12) legal malpractice; (13) failure to name a necessary party; (14) third-party liability; (15) failure to mitigate; (1 6) attorneys’s lees unrecoverable; and (1 7) reservation of right to assert additional defenses.

Plaintiff seeks dismissal on the grounds that failure to state a cause of action, lack of
specificity, and/or documentary evidence. In response, defendant argues that the motion to
dismiss is premature, where no discovery has yet been conducted. Specifically, defendant asserts
that the first affirmative defense is not subject to dismissal. Plaintiff acknowledges that said
defense is defined as meaningless surplusage by the Appellate Division, First Department. See
Riland v Todman & Co., 56 AD2d 350, 352 ( 1st Dept, I977), but states that it can be dismissed if
all of the other defenses arc subject to dismissal;See. See Raine v. Allied Artists Prods. v Artists Prods., Inc., 63 AD2d 914 (1st Dept, 1978)

The court shall examine the other defenses.The second affirmative defense seeks relief under the unclean hands doctrine. The partyalleging unclean hands must establish that the party charged committed immoral or unconscionable conduct directly related to the subject matter. See Citibank, N.A. v American Banana Co, Inc.., 50 AD3d 593, 594 (1st Dept 2008). This defense is connected to plaintiff‘sequitable claims in the complaint. The court finds that defendant has not made out a defense that plaintiff’s conduct is so immoral and depraved as to warrant a defense of unclean hands. The second affirmative defense is dismissed.

The third affirmative defense, waiver, alleges that plaintiff had intentionally waived a legal right she had. Defendant does not specify in the answer what legal right had been relinquished by her. The court shall dismiss this defense as lacking in specificity, thus, failing to state a proper defense‘ensue.

The fourth affirmative defense, statute of limitations and laches, alleges that this complaint is untimely. ‘J’he statute of limitations for breach of contract claims is six years from the breach. CPLR 2 13 (2). The retainer agreement was executed on September 30,2009, and this action was commenced in 2011, so there is no statute violation. Defendant’s laches defense is deficient where it fails to alleges some evidence of prejudice in addition to delay. See Steele v Motor Vehicle Acc. Indemnification. Gorp., 39 AD3cl 78, 82 (1st Dept 2007). The fourth affirmative defense is dismissed.

The fifth affirmative defense is estoppel. The doctrine of estoppel would preclude plaintiff from asserting a legal right alter leading defendant to reasonably believe that she did not intend to assert-t this right. ’I’his defense is insufficient‘.. There is no indication that plaintiff  misled defendant into relying on some inconsistent conduct on her part, resulting in prejudice. See BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853 (1st Dept 1985). The allegation that defendant was somehow misled into believing that it would not pay any amount beyond the initial $10,000 is belied by the explicit terms of the retainer agreement. The fifth affirmative defense is dismissed.

The sixth affirmative defense alleges that plaintiff breached the retainer agreement by failing to provide regular communications, and by billing excessive charges. The seventh affirmative defense alleges that plaintiff failed to provide regular notice to defendant while providing legal services. Since the account stated claim has been granted, the allegation of excessive fees is moot as defendant’s demonstrated failure to express timely objection to the fees constitutes acquiescence to the reasonableness of‘the fees. ‘The failure to provide notice is also moot. These defenses are dismissed.

The eighth affirmative defense, violation of the statute of frauds, is not relevant, since the suit involves a written agreement. The eighth affirm alive defense is dismissed. ‘The ninth affirmative defense apparently alleges that plaintiff should be barred from recovering fees because she worked beyond the terms provided by the retainer agreement and overcharged defendant for work outside of that stipulated by said agreement. This defense lacks specificity as to what constituted work beyond the terms of the retainer agreement. The ninth affirmative defense is dismissed.

The tenth affirm alive defense alleges that the retainer agreement is unconscionable and unduly burdensome to defendant. This defense is not specific, and no evidence is submitted to show that this agreement is unconscionable. Moreover, plaintiff has provided evidence that prior to the execution of this agreement, the parties had extensive communications as to specific
provisions related to the payment of fees. Defendant has not provided any proof that he objected
or criticized the provisions prior to execution, or at any other time. The tenth affirmative defense
is dismissed.

The eleventh affirmative defense alleges that plaintiff’s conduct violated the Code of Professional Responsibility. Here, there is no reference to any specific code provision. Also, the claim that plaintiff charged excessive fees unreasonable fees beyond the initial retainer fee is belied by the documentary evidence submitted by plaintiff. ’The eleventh affirmative defense is dismissed.

The twelfth affirmative defense is similar to the ninth one, alleging plaintiffs conduct as
going beyond the scope of her employment, Although it is based on tort, rather than contract. The
court shall dismiss this defense as lacking in specificity.

The thirteenth affirmative defense alleges that the failure to name a necessary party to this action precludes plaintiffs claims. This party is supposedly Philip, the deceased’s son. The court does not find him to be a necessary party, as this retainer agreement was only executed by plaintiff and defendant€defendant, Philip Philip was not intended to be a third-party beneficiary. This affirmative defense is dismissed.

The fourteenth affirmative defense alleges that plaintiffs claims are barred because a third-party is liable for money owed. Defendant has not specified the third-party. Plaintiff has provided documentary evidence, a copy or defendant’s’s agreement with Philip, which  provides
that defendant agreed to be responsible for the payment of legal fees concerning the disinterment
and other matters. The fourteenth affirmative defense is dismissed.

The fifteenth affirmative defense alleges h a t plaintiff failed to mitigate her damages. There is no specificity to this defense and it is dismissed.

The sixteenth affirmative defense alleges that plaintiff is not entitled to attorney’s fees. ‘This defense is lacking in specificity. Defendant’s’ s previous explanations as to why plaintiff is not entitled to any fees (breach of contract, malpractice) have been rejected by this court. Thus, this defense is dismissed.

The seventeenth affirmative defense alleges defendant’s entitlement to allege additional
affirmative defenses during the course of this action. This is not a proper affirmative defense and
is dismissed.

The court will dismiss all but the first affirmative defense, as it may relate to the remaining causes of action. The other defenses are either deficient in merit or are disproved by documentary evidence.

Millennium Imports LLC marketed a huge success in the vodka world, "Belvedere."  Millennium was itself a golden child of the Louis Vuitton, Moet and Hennessy (LVMH) companies, so when a California winery that already had a wine called Belvedere claimed trade infringement, a small licensing fee of $ 30,000 per year was nothing to worry about.

Later, the winery wrote that it was intending to be associated with a gin to be called Belvedere.  Millennium and LVMH went into high gear, and had multiple law firms look at the situation.  Their solution was to write a strong letter and threaten. The Winery claimed breach of contract and eventually won $ 38 Million.  Who’s to blame, and how will the resulting legal malpractice litigation shake out?

"It is well settled that an attorney sued for malpractice may assert a third party claim against another lawyer who advised the plaintiff on the same matter. The leading case on this point is Schauer v Joyce (54 NY2d 1 [1981]). In Schauer, an attorney was sued by his client for malpractice, due to his failure to obtain alimony for his client. He, in turn, asserted a third-party claim for contribution under CPLR 1401 against the lawyer who succeeded him in representing the plaintiff, claiming that the successor lawyer’s negligence in failing to properly reapply for alimony contributed to the loss. The Appellate Division upheld the dismissal of the third-party claim, reasoning that the third-party defendant could not be liable for the injury caused to the plaintiff by the third-party plaintiff; in the Court’s view, "[t]he extent to which plaintiff either personally or through her agent [third-party defendant] failed to mitigate damages is a matter of defense" (79 AD2d 826, 826 [3d Dept 1980]). But the Court of Appeals reinstated the contribution claim, explaining that:

"CPLR 1401, which codified this court’s decision in Dole v Dow Chem. Co. (30 NY2d 143), provides that two or more persons who are subject to [*4]liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.’ The section applies not only to joint tortfeasors, but also to concurrent, successive, independent, alternative, and even intentional tortfeasors’" (Schauer, 54 NY2d at 5, quoting Siegel, New York Practice, § 172, p 213; and citing McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 1401, pp 362-363).

Not only do we find this reasoning applicable to the third-party claim against the law firm that served directly as plaintiff’s counsel, but we also see no basis to find this reasoning inapplicable to the law firms whose allegedly negligent advice was supplied to plaintiff via plaintiff’s parent company. It is well settled that attorneys may be liable for their negligence both to those with whom they have actual privity of contract and to those with whom the relationship is "so close as to approach that of privity" (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382 [1992]). Since here the allegations support a finding that the advice of the two firms acting as counsel to plaintiff’s parent company was given "for the very purpose of inducing action" on plaintiff’s part, the third-party claim against those firms for contribution is actionable (id. at 383).

Even if we agreed that the affirmative defense of comparative negligence precludes a claim for contribution against an agent of plaintiff’s, that would only warrant dismissal of the third-party claim against the Berry firm, as counsel to (and agent for) plaintiff. The claim for contribution against the other two third-party defendants could not be viewed as duplicative, since the affirmative defenses did not specifically name them as plaintiff’s agents whose alleged negligence defendants sought to impute to plaintiff for comparative negligence purposes. Consequently, the third-party claims would be viable against third-party defendants the Barack firm and the Fross firm in any event.

With respect to the application to dismiss the third-party action without prejudice under CPLR 1010, there is no indication that the third-party complaint will delay the main action. On the contrary, there clearly are efficiencies to be gained from having the claims proceed together.

Accordingly, the judgments of the Supreme Court, New York County (Milton A. Tingling, J.), entered November 15, 2011, July 6, 2011 and July 18, 2011, dismissing the third-party complaint as against third-party defendants James H. Berry, Jr. and Berry & Perkins, Barack, Ferrazzano, Kirschbaum & Nagelberg LLP and Fross, Zelnick, Lehman & Zissu, P.C., respectively, should be reversed, on the law, without costs, the judgments vacated, and the third-party complaint reinstated. Appeals from the orders, same court and Justice, entered March 30, [*6]2011, July 6, 2011 and July 18, 2011, which granted third-party defendants’ motions to dismiss the third-party complaint, should be dismissed, without costs, as subsumed in the appeals from the judgments."
 

Often, insurance companies seem opaque and distant.  Their decision making is hidden, individuals seem to have significant power over settlement decisions, and the rules that permit denials of coverage are Byzantine.  Here is a rare look into how the defense bar and the insurance companies interact. Insurance Corp. of N.Y. v Smith, Mazure, Director, Wilkens, Young & Yagerman, P.C.   2013 NY Slip Op 30115(U)   January 23, 2013   Supreme Court, NY County
Docket Number: 102485/08  Judge: Saliann Scarpulla.

"In this legal malpractice action, plaintiff The Insurance Corporation of New York ("Inscorp")alleges that, while representing Inscorp, Joel Simon, Esq. ("Simon"), a member of Smith Mazure, negligently rendered legal advice regarding insurance coverage during telephone conversations in late 2004 and early 2005. Inscorp alleges that Simon negligently counseled Michael Weiss (“Weiss”), a claims adjuster employed by Inscorp’s third-party administrator, Ward North America (“Ward”), that Inscorp was contractually obligated to provide a defense and indemnification to West Perry, LLC (“West Perry”) and G.B, Construction, LLC (“G,B. Construction”) in an underlying Labor Law action.

Specifically, Inscorp alleges that Simon improperly advised Weiss that West Perry, the construction site owner, was an additional insured under an Inscorp general liability policy issued to G.B. Construction, a subcontractor at the site, and that the Inscorp late disclaimers of coverage issued by Ward were improper and untimely, and therefore, invalid. Inscorp alleges that the disclaimers were enforceable on the grounds that West Perry was not an additional insured under the Inscorp policy, and that neither G.B. Construction nor West Perry had satisfied the policy’s notice of claim requirements.

Inscorp also alleges that Simon negligently failed to disclose to Weiss that United National Insurance Group (‘UNG’’) had retained Smith Mazure to secure additional coverage for West Perry under the Inscorp policy, following Inscorp’s failure to respond to UNG’s October 15,2004 tender of West Perry’s defense and indemnity. Inscorp further alleges that UNG’s retention of Smith Mazure created a conflict of interest, inasmuch as Smith Mazure had represented UNG and its insureds over a period of years.

Inscorp alleges that, based on Smith Mazure‘s negligent legal advice, it rescinded ts valid disclaimers to West Perry and G.B. Construction, and expended approximately $73,000 in legal fees in defending G.B. Construction and West Perry, and $490,000 in settling the Soto action on behalf of both companies. In the answer, Smith Mazure denies all allegations of wrongdoing. In this motion, Smith Mazure alleges that, at the time that the alleged misconduct occurred, it had not
been retained by Inscorp or Ward to render an insurance coverage legal opinion for either West Perry or G.B. Construction, and had clearly advised Weiss that it was acting on behalf of UNG when Simon contacted Weiss in 2004 and 2005. Smith Mazure explains that, in November or December 2004, Simon had received a request from Cheryl Mawby (“Mawby”), a UNG senior claims examiner, to commence a declaratory judgment action to compel Inscorp to provide a defense to UNG‘s insured, West Perry, in the Soto action, and Simon had contacted Inscorp to verbally request coverage on behalf of West Perry.

An attorney’s simultaneous representation of two adverse parties in a matter, or the failure to disclose such a conflict, may form the basis of a valid claim for legal malpractice. See Hearst v. Hearst, 50 A.D.3d 959, 963 (2d Dept 2008). In determining whether such an attorney- client relationship exists, the court may consider the following factors, among others: whether the parties entered into a fee arrangement; whether a written retainer agreement or other contract exists; whether there was an informal relationship in which the attorney performed legal services gratuitously; whether the attorney actually represented the purported client in an aspect of the matter; whether the attorney excluded the purported client from some aspect of the litigation to protect another client’s interests; and whether the purported client reasonably believed that the
attorney represented him or her. Catizone v. WON 71 F. Supp. 2d 365, 368 (S.D.N.Y.
1999) (applying New York law).

Here, the record consists primarily of deposition testimony and affidavits by Weiss and Simon, which establish triable issues of fact regarding whether an attorney-client relationship regarding coverage issues existed between Inscorp and Smith Mazure at the time Weiss and Simon spoke in 2004 and 2005, See Terio v. Spodek, 63 A.D.3d 719,721. (2d Dept 2009).

Contrary to Smith Mazure’s contention, the lack of a written retainer agreement for a coverage opinion does not conclusively demonstrate that no attorney-client relationship existed, particularly where, as here, such a relationship previously existed between the parties. See Terio, 63 A.D.3d at 721; Moran, 32 A.D.3d at 91 1. Weiss testified that Inscorp and Ward would not disclaim coverage without a legal opinion, and that Ward’s coverage counsel often rendered opinions without retainer agreements and would, on occasion, provide verbal and gratuitous coverage opinions. Similarly, Smith Mazure’s failure to bill Inscorp for a coverage opinion is not dispositive, given that Smith Mazure also failed to bill UNG for Simon’s conversation with Weiss on December 30, 2004, although Smith Mazure contends that it was representing UNG on that date. It is well settled that an attorney owes his continuous clients a fiduciary duty, even in matters for which the attorney is not specifically retained, and that the breach of this duty can also constitute attorney malpractice. See Cavaliere v. Plaza Apts., Inc., 84 A.D.3d 712,713-714 (2d Dept 201 1). The parties here have raised
triable issues regarding whether Smith Mazure simultaneously represented Inscorp and
UNG, expressly disclosed its representation of UNG, and if so, whether Smith Mazure
obtained Inscorp’s consent to the simultaneous representation. Tabnsr v. Drake, 9 A.D.3d
606, 610 (3d Dept 2004). Contrary to Smith Mazure’s contention that Inscorp did not retain Smith Mazure to represent West Perry until after the alleged legal advice was given, Weiss’ statement that
he would consider extending coverage and accepting the tender, if UNG waived its right to recover the attorneys’ fees already expended, is not dispositive. It is not clear from the record whether Weiss believed that he was negotiating with counsel for an adversary, or instructing Inscorp’s counsel regarding negotiations with the adversary. "

Straw buyer and fake seller.  Not unheard of terms in real estate transactions.  They are bad enough, but then the escrow monies on their way to pay off the earlier mortgage go missing.  Who’s to blame?

In Khadidiatou Bah v Stuart   2013 NY Slip Op 30171(U)   January 17, 2013  Supreme Court, New York County  Docket Number: 113354/06  Judge: Joan M. Kenney we see that  "Briefly, on August 22,2005, plaintiff Bah purchased real property located at 721 Commonwealth Ave., Bronx, NY (the property), from Karamoko Diabi (seller). The price of the property was $360,000.00 and in connection with the purchase, Bah obtained a mortgage from WaMu in the amount of $328,000.00.
The seller had a prior mortgage on the property in the amount of $305,733.54, to be satisfied with the proceeds of the sale of the property. Plaintiffs allege that at the closing, on August 22,2005, CILMI & Associates (CILMI), on behalf of WaMu, issued a check to satisfy the prior mortgage to Beneficial. Allegedly, those funds were stolen and converted by co-defendants Stuart, Beneficial, and Dalley, and not used to satisfy the prior mortgage; all of this after Stuart told CILMI, and plaintiffs that the money was needed in escrow to secure the title insurance from Commonwealth. The escrow account was created by Union National Abstract, LLC (Union), Commonwealth’s policy-issuing agent. CILMI believes that because Union is an agent of Commonwealth then Cal Stuart is an agent of commonwealth, because he pushed for the money to be placed into the escrow account. Commonwealth issued the title insurance policy to WaMu for the closing of the property. Third-party-plaintiff alleges that not only is Commonwealth responsible for insuring this loss, but that Cal Stuart was an agent working for Commonwealth, making Commonwealth  culpable for some of the loss. (see also, The third-party summons and complaint, annexed as Exhibit B to the moving papers). The third-party summons and complaint filed against Commonwealth by CILMI alleges that Commonwealth should be responsible for contribution should WaMu prevail against CILMI."

"“Contribution is generally available as a remedy ‘when two or more tort-feasors share in responsibility for an injury, in violation of duties they respectively owe to the injured person,’ (Garrett v Holiday Inns, 58 NY2d 253 …, quoting Smith v Sapienza, 52 NY2d 82 …). ‘A contribution claim can be made even when the contributor has no duty to the injured plaintiff..’(Raquet v Braun, 90 NY2d at 182). In such situations, a claim of contribution may be asserted if there has been a breach of duty that runs from the contributor to the defendant who has been held liable. The ‘critical requirement’ for apportionment by contribution under CPLR Article 14 is that ‘the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought.’(Trump Vill. Section 3, Inc. v New York State Hous. Fin. Agency, 307 AD2d 891 [ 1 st Dept. 2003). CPLR 1401 states that “two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.” A right to indemnity, as distinguished from contribution, is not dependent upon legislative will, but springs from contract, express or implied, and full, not partial reimbursement is sought. (McDerrnott v City of New York, 50 NY2d 211[1980). Pursuant to CPLR 1007, “After the service of his answer, a defendant may proceed against a person not a party who is or may be liable to that defendant for all or part of the plaintiffs claim against that defendant …” Further, 1007 also states that “suits against a third party can only be maintained for contribution or indemnification claims.” (Phoenix Erectors, LLC v Fogarty, 90 AD3d 468 [1st Dept. 2011]). Commonwealth’s self-serving statement that they had no privity with CILMI is unsupported by admissible evidence and is insufficient, at this juncture, to grant the application to dismiss the third-party complaint. It is noted that Commonwealth may still be liable for all or part of the claims asserted by p1aintiff Whether it be contributory or full indemnification, Commonwealth may be liable as the principal to Cal Stuart, the principal to Union, or as the insurer of WaMu. However, the exact nature of the relationships between Commonwealth and the parties to this action during the course of the transaction and sale of the property has not been conclusively established by admissible documentary evidence, no doubt due to the fact that discovery on this 2006 matter is not complete. In fact, it is asserted that discovery on this matter has yet to begin."

Gallet Dreyer & Berkey, LLP v Basile  2013 NY Slip Op 30101(U)  January 16, 2013  Supreme Court, New York County  Docket Number: 109687/11  Judge: Donna M. Mills is a recently decided case that touches on three themes.  The first is legal malpractice cases after settlement, the second is privity and the third is hindsight.  Plaintiffs move forward with many but not all of their claims still alive.

"H&P was retained in 2006 to represent Ms. Holm in an existing Surrogate’s Court  action seeking to revoke an irrevocable trust into which the bulk of Ms. Holm’s assets had been transferred. That action was commenced two months after Ms. Holm married the significantly younger Mr. Basile, and her sons, as trustees, fought the revocation. Gallet was initially retained by Mr. Basile to defend him at a deposition in the Surrogate’s Court Case.

The Surrogate’s Court matter was concluded with all parties entering into a Stipulation of Settlement while a motion for summary judgment by Holm’s sons was pending. The Stipulation provided for the payment of costs associated with Ms. Holm’s living expenses on a monthly basis as well as a cash allowance per month to be paid from the Trust. With respect to a farm property located in New Jersey (the “Farm”) that was transferred to her sons by Ms. Holm in 2002 and 2003, the Stipulation specifically acknowledged the validity of that transfer and specified that Trust funds were not to be used for the upkeep of the Farm, and discontinued an action commenced by summons with notice relating to the transfer of the Farm. A complaint was never filed in that matter
and Ms. Holm never retained H&P to perform any services with respect to that matter. The stipulation also addressed various loans made by Ms. Holm to her sons, setting forth the rates of interest, and that the loans were forgiven upon her death. The Stipulation further provided for the distribution of Ms. Holm’s estate upon her death, one-third to each son and one-third to Mr. Basile with applicable reductions for each. Also pursuant to the settlement, the Trust was to be funded by a refinance of Ms. Holm’s apartment. The crux 6f the allegations in the third-party complaint is that in hindsight, the settlement of the underlying Surrogate’s Court action, allegedly constituted malpractice.

As is set forth in the third-party complaint, Gallet was initially retained by Mr. Basile to defend him at a deposition in the Surrogate’s Court Case. Mr. Basile executed a retainer agreement for the legal service of his own separate and independent, in connection with the lawsuit commenced by his wife, Ms. Holm in the Surrogate’s Court. The third-party complaint admits that while Ms. Holm retained HBP, Basile retained Gallet as his attorneys. The complaint further admits that while Ms. Holm was invoiced for legal services by H&P, Mr. Basile was invoiced for legal services by Gallet.
In opposition to the motion to dismiss, Mr. Basile argues, inter alia, that H&P was his counsel by virtue of a “joint representation” of Ms. Holm and Mr. Basile by both H&P and Gallet. Mr. Basile argues that H&P communicated nearly exclusively with him regarding litigation of the Surrogate Court Case, the State Court Case and related matters. Mr. Basile annexes e mails purporting to show that H&P established a relationship in privity, or sufficiently near privity, to support his malpractice cause of action against it.

“[A] relationship of near privity may … be sufficient to sustain a legal malpractice claim” only in cases where there is negligent misrepresentation ( Federal Ins. Co. v North American Specialty Insurance Co., 47 A.D.3d at 60, 847 N.Y.S.2d 7) and, here, although the third-party complaint alleges that Gallet and H&P made negligent misrepresentations upon which the third-party plaintiffs relied, in light of the fact that the third-party plaintiffs were separately represented by counsel, any justifiable reliance on the purported negligent misrepresentation can only be directed at their own retained counsel. Moreover, contrary to the contention of third-party plaintiffs, their unilateral belief that they had an attorney client relationship with each others counsel, in addition to their own, does not by itself confer upon them the status of clients of their spouses’ counsel.
Since Ms. Holm and Mr. Basile clearly had separate representation in the underlying litigations, they cannot now argue that they were in privity or near-privity with each others lawyers, notwithstanding the fact that both law firms worked closely together and engaged in discussions and decisions jointly. As such, the documentary evidence submitted in support of the third-party defendants’ motion to dismiss, clearly proves that Gallet solely represented Mr. Basile in the underlying actions, and that H&P solely represented Ms. Holm.

According to the third-party complaint, H&P and Gallet’s purported malpractice arises from three instances of alleged negligence: (I) the purported failure to conduct due diligence relating to the ownership of the apartment; (2) the failure to prosecute the Supreme Court Action; and (3) that they were forced to enter into the Stipulation of Settlement which caused them to lose access to certain assets. “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel” ( Bernstein v. Oppenheim & Co., P.C., 160A.D.2d 428,430,554 N.Y.S.2d 487 [I 9901 [citation omitted] ). The third-party complaint alleges that, but for third-party defendants’ negligence in failing to conduct due diligence and the consequential erroneous advice based on this failure, third-party plaintiffs would not have executed the stipulation in the Surrogates Court action, and would have received either a higher settlement or trial verdict. These allegations are sufficient to withstand a CPLR 321 I (a)(7) motion."

Wadsworth Condos LLC sought to develop a condominium building, and took on others as kind-of partners, but really as tenants in common.  What developed thereafter led to problems with municipal entities, a lot of money spent and  a legal malpractice case, Wadsworth Condos LLC v Dollinger Gonski & Grossman   2013 NY Slip Op 30149(U)   January 22, 2013   Sup Ct, New York County   Docket Number: 600899/2009  Judge: Louis B. York discusses both legal malpractice and associated professional negligence.

"Summary judgment is a drastic remedy which is granted only when the party seeking summary judgment has established that there are no triable issues of fact.  Andre v Pomeroy, 35 NY2d 361, 364 (1974). The burden then shifts to the motion’s opponent to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1 st Dept 2006). "In considering a summary judgment motion, evidence should be analyzed in the light most favorable to the party opposing the motion." Martin v Briggs, 235 AD2d 192, 196 (1st Dept 1997). "On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact.” S .I. Capelin Assocs., Inc.. v Globe Mfg.. Corp., 34 NY2d 338, 341 (1974); see Psihogios v Stavropolis, 269 AD2d 295,296 (1st Dept 2000) (holding that issues of credibility should be left for resolution by the trier of fact). Here, there is a clear dispute raised by the testimony of Joe Bobker and Dollinger. While Dollinger slates that the litigation against Fischer was authorized, Joe Bobker disagrees, and states that this litigation was not authorized, and that Dollinger was specifically told not to commence the litigation against Fischer.

There also remains questions of fact as to whether Dollinger’s work for 43 Park
conflicted with the interests of the tenancy in common and the management agreement, and
whether Dollinger did or did not contribute to delays in the litigation which resulted in damages.
Therefore, because here are issues regrading the credibility of the witnesses, as well as issues of
fact regarding Dollinger’s work, Dollinger and the Dollinger law firm’s motion for summary
.judgment must be denied."