For a well written decision on one of the most complicated factual settings we can remember, read Oikonomos, Inc. v Bahrenberg   2013 NY Slip Op 50017(U)   Decided on January 5, 2013   Supreme Court, Suffolk County   Pines, J.   This legal malpractice-breach of fiduciary duty-breach of contract-fraud-promissory estoppel- equitable estoppel case has even more to it.  The facts of a vastly intertwined series of commercial / loan / guarantee / lease issues are so opaque that there is little sense to trying to describe it.  Justice Pines does a much better job in her decision,
 

"Applying these general principles to the case at bar, the Court finds that there are so many disputed issues of fact surrounding the legal malpractice claim of the Plaintiffs against Bahrenburg, that a trial is necessary. While Bahrenburg asserts he either did not represent or was released from any conflicts by certain Plaintiffs, the Plaintiffs state the opposite. While Bahrenburg offers different reasons for the Plaintiff’s economic losses, the Plaintiffs set forth that each and every breach, whether of a lease, promissory note or guarantee, was caused by Bahrenburg’s disloyalty, misrepresentations and improper acts. There are also issues of fact raised by the Third Party Defendants, the Braysons, with regard to the allegations that Bahrenburg’s actions of collusion and malicious behavior are sufficient to permit them to sue Bahrenburg both as former clients and as third parties to the various transactions, for legal malpractice under the authority set forth above.

In this action, based upon a careful reading of all the papers, the Court is convinced that the allegations in this case of breach of fiduciary duty against Defendant Bahrenburg, while extremely serious , are subsumed under the claims for legal malpractice as they all arise from the same sets of alleged facts and actions. For this reason, although the Court believes that the multitude of claims by the various Plaintiffs against Bahrenburg for breach of his fiduciary duties will be the subject of much of the trial of this action, they are not the basis for a separate cause of action. Accordingly, the motions for Summary Judgment dismissing the twenty seventh claim by the corporate Plaintiffs and the third , fourth, and ninth cross claims by the Braysons against Bahrenburg for legal malpractice are denied. The motion for Summary Judgment, dismissing the fourth and seventeenth claims as well as the first and eighth cross claims against Bahrenburg for breach of fiduciary duties is granted, with the understanding that all of the factual allegations made under such claims may be presented as the basis for legal malpractice.

As with the breach of fiduciary duty claims, the Plaintiffs and third party Cross Claimants have set forth allegations of facts, which if demonstrated at trial, constitute fraud. However, to the extent that such allegations are made against Bahrenburg, they are again, subsumed within the legal malpractice claims and indeed seek the same damages for the loss of the lease, note and guarantee payments on the various underlying agreements that give rise to this lawsuit. Therefore, while Plaintiffs will be free to demonstrate the acts complained of, they are again not separate causes of action. The same is not true with regard to Defendants Clark and Dryfoos, who are essentially accused, through the various affidavits and discovery presented to the Court, of aiding and abetting Bahrenburg in his various alleged concealments, disloyalties to his former clients, and wrongful acts in jeopardizing their contractual rights. Accordingly, the Summary Judgment motions to dismiss the fraud claims against Bahrenburg (fifth, eighteenth and thirtieth) are granted. On the other hand, the allegations set forth by Plaintiffs against Clark and Dryfoos are sufficient to allow the twenty first and thirtieth claims against them, in which they are accused essentially of aiding and abetting Bahrenburg in acts of misrepresentation and concealment, to proceed to trial and are not dismissed on the Summary Judgment motion.

There are numerous contracts at issue in this case, which the Defendants all claim to be barred and the Plaintiffs all assert are enforceable. In this Court’s view each presents ambiguities, when viewing the agreements as a whole, as well their purpose when entered (which is disputed in certain instances). Whether discussing the Oikonomos restructuring agreement, which the Defendants claim void based upon the advice of a non party and Plaintiff claims valid based upon the alleged advice of Windwood and Bahrenburg; the Stonegate lease amendment, which the Foundation asserts relieved it of its obligations and which Stonegate sets forth stands in view of obligations to the initial lending institution; the lease and services agreements between 3390, Educare and Windwood; or the guarantees of the Foundation and Windwood of Maple Valley’s obligations to WDR on its note (which the Defendants claim was expunged and the Plaintiff states is still in effect, either in law or equity under Massachusetts cases), questions of fact have been raised and require the issues to be tried. In this vein, Plaintiffs point to the case relied upon by movants, Awed v Marisco, 538 NE 2d 43 (Mass Ct. App. 1989), which held that even where a co-guarantor pays off a debt, thereby extinguishing the guarantee, such party still has a claim against the co-maker in equity and under the Uniform Commercial Code, for contribution. "

We were unable to select the best of Gerard M. Tanella’s transgressions, and invite you to read the entire list prepared by the Appellate Division in Matter of Tanella   2013 NY Slip Op 00099
Decided on January 9, 2013   Appellate Division, Second Department  Per Curiam.  which determined his "complete abdication by the respondent of his fiduciary duties over client funds and his escrow account; serial neglect by the respondent of legal matters entrusted to him; giving of false testimony to the Grievance Committee; deceiving his clients into believing claims had settled when the respondent had not even commenced actions on their behalf; deceiving third parties into believing the settlement status of claims in order to procure funds; fabrication of court orders by the respondent; issuance of checks which the respondent knew would be returned for insufficient funds; financial injury caused to clients and third parties as a result of the respondent’s misconduct; and participation by the respondent in a criminal enterprise and the failure to extricate himself from such enterprise whose objective was to defraud insurance companies".
 

What we don’t understand is where the money actually sent to clients came from.  However, we will predict that there are as many as 25 former clients that are now considering legal malpractice litigation. 

Battling over the "but for" portion of the legal malpractice requirements is generally where commercial cases such as Garten v Shearman & Sterling LLP  2013 NY Slip Op 00035
Decided on January 8, 2013  Appellate Division, First Department  end up.  Here, in a surprisingly clear recitation, the AD tells us why this case was doomed.
 

"On an appeal from a denial of a dismissal motion, this Court found that plaintiff "has stated a cause of action for malpractice by alleging that but for’ defendant’s failure to prepare and procure documents necessary to provide him with a first-priority security interest, he would have been able to recover the amounts owed to him by the defaulting borrower" (52 AD3d 207 [1st Dept 2008]).

Now, after discovery, it is clear that plaintiff cannot establish either a breach of duty or causation, both of which are necessary to proceed with the claim (see Wo Yee Hing Realty Corp v Stern, 99 AD3d 58, 62-63 [1st Dept 2012]).

Plaintiff’s own deposition testimony establishes that he understood that at the time he was advancing a loan to Pacific Jet, there was a superior lien on the accounts receivable, which were also being used to collateralize his loan. He knew the identity of the senior creditor and fully understood that his position would be junior when his loan was first made and would remain so, unless and until the first lien was paid off. He was, however, under a mistaken impression about the amounts owed to the senior creditors because his friend, Tim Prero, Pacific Jet’s principal, misled him by significantly understating those amounts. Plaintiff’s assumptions about his business risk in getting repaid were based upon false factual information about the financial health of Pacific Jet and how quickly the senior creditors would be paid off. Defendant established a prima facie case warranting dismissal of the complaint by showing that plaintiff’s losses were caused by Pacific Jet’s poor financial condition and plaintiff’s misjudgment of risk based upon the false factual information provided to him by Prero. (see A & R Kalimian v Berger, Gorin & Leuzzi, 307 AD2d 813 [1st Dept 2003]).

Plaintiff failed to raise any factual disputes in opposition. There is no evidence that defendant was retained to review Pacific Jet’s private corporate records. The undisputed evidence reveals that plaintiff alone reviewed Pacific Jet’s private financial records and negotiated the material terms of the transaction. The public UCC records, which defendant searched, revealed a prior security interest, a fact known to all, but no lien amount was recorded. [*2]Although plaintiff asked defendant to "document" his first priority interest, he did not have a first priority interest at the time he advanced the loan and had no expectation of a first priority interest before the senior creditor was paid. Subordination agreements or releases from the senior creditor at the time the loan was made, therefore, were not in order. Plaintiff has not elucidated what other documents defendant could have procured or prepared that would have altered the outcome of what was in hindsight a bad business deal.

Plaintiff no longer claims that defendant could have taken actions that would have allowed him to recover the amounts owed. He currently argues that he would not have entered into the transaction had he known his friend was misleading him about the amounts owed to prior creditors. This position is different from the position he prevailed upon on the motion to dismiss. It is also contrary to his deposition testimony, when in answer to a direct question about whether he considered not making any loans because his friend had failed to show him any documentation, plaintiff could not "speak to his mindset" at the time. Plaintiff’s new claim does not create an issue of fact that would defeat summary judgment (see Madtes v Bovis Lend Lease LMB, Inc., 54 AD3d 630 [1st Dept 2008]). Finally, the undisputed evidence reveals that plaintiff was aware that there were risks associated with having a junior security position at the time he advanced the loan proceeds and negotiated his own remedy of enhanced interest. "

Plaintiff is injured on a cruise ship, and comes back to NY looking for an attorney. Right now we should be thinking, venue, long-arm jurisdiction, state or federal court.  However, in Palmer v Mulvehill  2012 NY Slip Op 33046(U)  December 19, 2012  Sup Ct, Suffolk County  Docket Number: 11-17748  Judge: Daniel Martin  things take off in a totally different direction.  Here, the problem is a contractual one year statute of limitations, delay in bringing the case, and eventual bankruptcy. 

"A CPLR 3211(a) (1) motion to dismiss a complaint on the ground that a defense is founded on
documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s allegations, conclusively establishing a defense as a matter of law (see Peter Williams Enterprises, Inc.. v New York State Urban Dev. Corp., 90 AD3d 1007, 935 NYS2d 624 [2d Dept 2011); Turkat v Lalezarian Developers, Inc.., 52 AD3d 595, 506, 860 NYS2d 153 [2d Dept 2008). In order to sustain a claim for legal malpractice, the plaintiff must 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 her (McCoy v Feinman, 99 NY2d 295, 301, 302, 755 NYS2d 693 [2002). A cause of action sounding in legal malpractice accrues on the date the alleged malpractice was committed, not on the date it was discovered (St. Stephens Baptist Church v Salzman, 37 AD3d 589, 830 NYS2d 248 [2d Dept 2007). Here, the time to file a complaint as a result of damages plaintiff allegedly sustained in the cruise ship accident expired on December 21, 2007, thus the plaintiffs claim for legal malpractice accrued on December 22, 2007 Since the retainer agreement with defendant Mulvehill was not signed until December 5, 2008, after the statute of limitations had expired with regard to plaintiffs underlying claim against the cruise ship, he cannot be liable for malpractice in failing to file the claim in a timely manner. Consequently, defendant Mulvehill has established a defense to plaintiffs claim of legal malpractice as a matter of law in allegedly failing to bring a timely action against the cruise liner..

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) ( 3 ) , the defendant must show that the plaintiff does not have legal capacity to sue. Where a party fails to schedule an asset in a bankruptcy proceeding, she is thereafter deprived of standing to raise it in a subsequent legal proceeding as the asset becomes the property of the bankrupt plaintiffs estate, and, thus if her claim accrued while her bankruptcy proceeding was still pending, she would not be permitted to institute a proceeding involving the said asset (Barranco v Cabrini Med. Ctr., 50 AD3d 281, 855 NYS2d 431 [lst Dept 2008). A lawsuit that is initiated prior to the bankruptcy petition or that could have been initiated by the debtor prior to the bankruptcy petition, “becomes[s] part of the bankruptcy estate subject to the sole direction and control of the trustee, unless exempted or abandoned or otherwise revested in the debtor” (Dennis v Bank United, , 2011 U.S. Dist Lexis 102292 [Dist of MD 2011 ). Thus, the question to be determined is whether the plaintiffs claims accrued before she filed her bankruptcy petition.

Plaintiff alleges in her opposition, and annexes portions of her bankruptcy petition (the original petition was filed on December 22, 2008) which indicate, that the underlying action against the cruise line was added to the bankruptcy petition, in or about October 2010. (Therefore, the issue with regard to standing as it relates the cruise line action must be denied as moot. It should be noted that the bankruptcy trustee was authorized to retain defendants Richard E. Miller, Esq. and John H. Mulvehill, Esq. as co-counsel to prosecute and conclude the cruise line lawsuit.) Insofar as defendants maintain that the within action for legal malpractice must have been alleged in the bankruptcy petition, plaintiff was not aware that she possessed that cause of action until on or after October 2, 2010, when her cruise ship action was dismissed by the Federal District Court as the result of a statute of limitations violation.

The bankruptcy case was closed and a final decree issued on October 12,2010. Thus, the legal
malpractice action could not have been included in the bankruptcy petition as originally filed, or thereafter amended to include the cruise line action. Accordingly, as plaintiffs legal malpractice lawsuit was not initiated, nor could it have been initiated, prior to her bankruptcy filing in December 2008, i:he motions by the co-defendants Panzini and Miller to dismiss plaintiffs complaint on the grounds that she lacked<s standing to sue are denied."

In this legal malpractice case, many of the causes of action are now weeded out after CPLR 3211 motions.  H.P.S. Mgt. Co., Inc. v St. Paul Surplus Lines Ins. Co.   2012 NY Slip Op 09028
Decided on December 26, 2012   Appellate Division, Second Department  
 

"In an action, inter alia, to recover damages for breach of contract, legal malpractice, and fraud, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated May 12, 2011, as granted those branches of the motion of the defendants St. Paul Surplus Lines Insurance Company and Travelers Companies, Inc., which were pursuant to CPLR 3211(a) to dismiss the second, third, fourteenth, and fifteenth causes of action, all without leave to replead, granted that branch of the same motion which was pursuant to CPLR 3211(a) to dismiss so much of the tenth cause of action as sought an award of an attorney’s fee against those defendants, granted that branch of the separate motion of the defendants Seabury & Smith, Inc., Marsh & McLennan Companies, Inc., and Marsh Affinity Group Services which was pursuant to CPLR 3211(a) to dismiss the eleventh cause of action, without leave to replead, granted those branches of the separate motion of the defendant Wilton Reassurance Life Company of New York which were pursuant to CPLR 3211(a) to dismiss the eighth, twelfth, and thirteenth causes of action, all without leave to replead, and granted that branch of the separate motion of the defendants Babchik & Young, LLP, and Jack Babchik which was pursuant to CPLR 3211(a) to dismiss, insofar as asserted against those defendants, the fourth cause of action.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants appearing separately and filing separate briefs. [*2]

Contrary to the plaintiffs’ contention, the Supreme Court applied the proper standard in reviewing the defendants’ motions to dismiss various causes of action in the amended complaint that were asserted against each of them (see generally Garner v China Natural Gas, Inc., 71 AD3d 825, 826; Davis v Davis, 71 AD3d 13, 19; Ruffino v New York City Tr. Auth., 55 AD3d 817, 818). The Supreme Court did not err in directing the dismissal of the causes of action that are the subject of this appeal, as they either failed to state a cause of action, were untimely interposed, or were duplicative of other causes of action that were asserted (see generally CPLR 214[4]; Chase Scientific Research v NIA Group, 96 NY2d 20, 30; Colasacco v Robert E. Lawrence Real Estate, 68 AD3d 706, 708; Kantrowitz v Allstate Indem. Co., 48 AD3d 753, 754; Paterra v Nationwide Mut. Fire Ins. Co., 38 AD3d 511, 512-513; LoPresti v Massachusetts Mut. Life Ins. Co., 30 AD3d 474, 476; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321, 322). The Supreme Court also properly denied the plaintiffs’ requests for leave to replead that are raised on this appeal (see generally Janssen v Incorporated Vil. of Rockville Ctr., 59 AD3d 15, 27; Smith-Hoy v AMC Prop. Evaluations, Inc., 52 AD3d 809, 811). Accordingly, the order must be affirmed insofar as appealed from. "
.

A very familiar scenario in the legal malpractice world is the Attorney Fee Suit / Legal Malpractice Counterclaim.  Facially, this combo is completely predictable and logically there is no shame or second-class status to the legal malpractice counterclaim.  In practice, however, many courts think the counterclaim is a "last-ditch" or equivalent effort to avoid paying justified fees.  In any given instance, the counterclaim may well be both virtuous and justified.

Here, in Schlenker v Cascino  2012 NY Slip Op 33066(U)  December 31, 2012  Sup Ct, Albany County  Docket Number: 5650-11  Judge: Joseph C. Teresi we will never know, because the attorney’s account stated claim is granted, and by virtue of collateral estoppel, the counterclaim will be dismissed. 

"Plaintiff commenced this breach of contract / account stated / quantum meruit action claiming that Defendants failed to pay their fee for the legal services he rendered, in the amount of $52,480.94. I Issue was joined by Defendants, who set forth a legal malpractice counterclaim. Discovery has been conducted, a note of issue was filed and a trial date certain has been set (April 8,2013).

Plaintiff now moves for summary judgement granting his account stated and breach of contract causes of action, while also dismissing Defendants’ counterclaim. Defendants oppose the motion, and move to strike the note of issue. Plaintiff opposes Defendants’ motion. Because Defendants’ motion to strike is both procedurally defective and moot it is denied. Plaintiff, however, demonstrated his entitlement to summary judgment on his account stated cause of action, and no material issue of fact was raised. Such holding renders moot Plaintiffs motion for summary judgment on his breach of contract claim.2 Plaintiff additionally demonstrated his entitlement to summary judgment partially dismissing Defendants’ malpractice claim.

In general, an account stated is "an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance
due." (Levine v Harriton & Furrer, LLP, 92 AD3d 1176, 1178 [3d Dept 2012], quoting J.B.H., Inc. v Godinez, 34 AD3d 873 [3d Dept 2006] and Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868 [3d Dept 1993], Iv. denied 82 NY2d 660 [2000]). "An agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account." (Am. Exp. Centurion Bank v Cutler, 81 AD3d 761, 762 [2d Dept 2011]; Morrison Cohen Singer and Weinstein, LLP v Waters, 13 AD3d 51 [1st Dept 2004]; Jaffe v Brown-Jaffe, 98 AD3d 898 [1st Dept 2012]; Shaw v Silver, 95 AD3d 416 [1st Dept 2012]).

As is specifically applicable here, "[a]n attorney can recover fees on an account stated with proof that a bill … was issued to a client and held by the client without objection for an unreasonable period of time." (Antokol & Coffin v Myers, 86 AD3d 876,877 [3d Dept 2011], quoting O’Connell & Aronowitz v Gullo, 229 AD2d 637 [3d Dept 1996], Iv. denied 89 NY2d 803 [1996][internal quotation marks omitted]; Miller v Nadler, 60 AD3d 499 [1st Dept 2009]; Geron v DeSantis, 89 AD3d 603 [1st Dept 2011]; Ruskin, Moscou, Evans, & Faltischek, P.C. v FGH Realty Credit Corp., 228 AD2d 294 [1st Dept 1996]). On such claim "it is not necessary to establish the reasonableness of the fee since the client’s act of holding the statement without objection will be construed as acquiescence as to its correctness." (Cohen Tauber Spievak & Wagner, LLP v Alnwick, 33 AD3d 562, 562-63 [1st Dept 2006], quoting O’Connell & Aronowitz v Gullo, supra [internal quotation marks omttted]). "Nor does [the attorney’s] failure to provide a written retainer agreement bar its claim for an account stated." (Thelen LLP v Omni Contr. Co., Inc., 79 AD3d 605,606 [1st Dept 2010] Iv to appeal denied, 17 NY3d 713 [2011];Roth Law Firm, PLLC v Sands, 82 AD3d 675 [1st Dept 2011]; Kramer Levin Naftalis & Frankel LLP v. Canal Jean Co., Inc., 73 AD3d 604 [2010]; Roth Law Firm, PLLC v Sands, 82 AD3d 675 [1st Dept 2011]; Miller v Nadler, 60 AD3d 499 [1st Dept 2009]). Moreover, "the fact that an invoice is not itemized does not … prevent an account stated from being created." (ERE LLP v
Spanierman Gallery, LLC, 94 AD3d 492, 493 [1st Dept 2012], quoting Zanani v. Schvimmer, 50
AD3d 445 [1st Dept 2008]).

With the burden shifted, Defendants raised no triable issue of fact. First, because Defendants’ attorney’s affirmation is not based upon "personal knowledge of the operative facts [of Plaintiffs account stated claim, it is of no] … probative value." (2 North Street Corp. v. Getty Saugerties Corp., 68 AD3d 1392 [3d Dept. 2009]; Groboski v. Godfroy, 74 AD3d 1524 [3d Dept. 2010]). Defendants instead rely solely on the affidavit of Salvatore Cascino (hereinafter "Cascino"),4 which neither attaches nor references any supporting documentary evidence. Cascino’s conclusory, undetailed, "[s]elf-serving, [and] bald allegations of oral protests are insufficient to raise a triable issue of fact as to the existence of an account stated." (1000 Northern of New York Co. v Great Neck Medical Associates, 7 AD3d 592, 593 [2nd Dept 2004]; Darby & Darby, P.C. v VSI Intern., Inc., 95 NY2d 308 [2000]). Moreover, Cascino neither denied receiving Plaintiffs invoices nor to partially paying them. With such submission, Defendants raised no triable issue of fact.

Turning to Plaintiffs motion for summary judgment dismissing Defendants’ legal malpractice counterclaim, "[i]n order to recover damages in a legal malpractice action, [Defendants] must establish that [Plaintiff] failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that [Plaintiffs] breach of this duty proximately caused [Defendants] to sustain actual and ascertainable damages." (Dombrowski v Bulson, 19 NY3d 347,350 [2012], quoting Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007][internal quotation marks omitted]). As amplified by Defendants’ bill of particulars, their malpractice claim is based, in part, upon three5 occurrences within Plaintiffs representation of them in criminal prosecutions.

Applicable to this portion of Defendants’ malpractice claims, "[Defendants] must have at least a
colorable claim of actual innocence that the conviction would not have resulted absent the  attorney’s negligent representation." (Id. at 350; Shields v Carbone, 78 AD3d 1440 [3d Dept 2010]). Defendants, however, resolved such criminal matter by a plea of guilty. Such plea conclusively negates any claim of actual innocence. Accordingly, Plaintiff established his entitlement to summary judgment dismissing Defendants’ malpractice claim based on his alleged failure to accept an adjournment, his wrongfully seeking of a global settlement and his failure to move for joinder of duplicitous prosecutions. Because Defendants raised no triable issue of fact,this portion of Defendants’ malpractice claim is dismissed."

In Rooney v Manzo   2012 NY Slip Op 32966(U)   December 5, 2012   Sup Ct, Queens County
Docket Number: 5865/2012  Judge: Robert J. McDonald we see an inspired attempt to get around the 3 year statue of limitations.  It does not succeed.

"In his first cause of action, plaintiff sets forth his claim that defendant breached her agreement  ith him by refusing his request to petition the Court for custody of his children; by unilaterally withdrawing from his case; by attempting to coerce him into conceding to his ex-wife’s demands; by failing to conduct adequate and appropriate discovery regarding his ex-wife’s financial circumstances; by failing to provide him with copies of all documents regarding the case; by refusing his request for a second copy of a bill; by failing to make application to enforce his so-ordered visitation; by failing to apply for court intervention regarding his daughter Shannon’s disabilities; by failing to file criminal charges against his ex-wife for custodial interference; by failing to petition the court to amend the child support provisions of a prior order; by failing to provide
receipts to the Quadro matter; by improperly co-mingling funds with the Tryon Company; and by failing to petition the Court for his share of his ex-wife’s IRA account. As a result of the alleged
misfeasance by the defendant, plaintiff contends that he has been damaged in the amount of two million dollars and caused to sustain mental anguish and anxiety.

In his second cause of action, the plaintiff states that he paid defendant the sum of $8,000 as a retainer for rendering legal services and that defendant failed to render said services and failed to provide regular billing statements. As a result the plaintiff seeks a return of the retainer amount.
The third cause of action sounds in legal malpractice and alleges that the defendant failed to represent the plaintiff in a skillful and proper manner in accordance with professional standards by abandoning his case before trial, failing to ascertain the ex-wife’s financial condition and failing to provide documents to the plaintiff so that he could make decisions affecting him and his minor children. Plaintiff seeks the sum of  $250,000 under this cause of action.”

In the instant motion, in addition to moving for leave to renew and reargue, plaintiff moves to  amend the complaint to add a cause of action for fraud stating that he first learned from
defendant’s prior motion papers that defendant never intended to represent him with respect to his custody and visitation issues but only to assist him in the finalization of his uncontested divorce documents. He states that he expected that Ms. Manzo was retained to be his general divorce counsel and he expected Ms. Manzo to give him guidance in all matters relating to his divorce.
He states that Ms. Manzo gave him her implied promise that she would address the problems relating to his visitation rights and related concerns for his two daughters. He states that he has
sufficient factual allegations to plead a cause of action for fraud in that he was misled into believing that Ms. Manzo would address all aspects of his divorce and not just act to finalize his divorce papers. Thus, plaintiff moves for leave to amend the  complaint to plead a cause of action for fraud.

With respect to the court’s decision dismissing the causes of action for malpractice, the plaintiff argues that the cause of action for legal malpractice did not begin to accrue until August 25, 2011 when Justice Raffaele reduced his child support on the ground that his ex-wife had caused parental alienation. A copy of that decision has not been provided to the Court. He states that
this finding confirmed his theory that Ms. Manzo was negligent in not proceeding against his ex-wife at that time for change of custody or modification of visitation. He states that in Florida a
cause of action for malpractice does not accrue until a final determination of the action which he contends is August 25, 2011.

Here, this court finds that the moving papers fail to establish that the court overlooked,  isapprehended either the facts or law or otherwise mistakenly arrived at its prior determination. Asstated previously, all of the plaintiff’s causes of action in including the proposed cause of action for fraud all sound in legal malpractice. As the defendant’s representation of the plaintiff ended on December 21, 2006, the complaint, which was served subsequent to the expiration of the three year statute of limitations for legal malpractice claims was time-barred.
Accordingly, for all of the above stated reasons, it is hereby, ORDERED, that the plaintiff’s motion pursuant to CPLR 2221 for leave to renew and reargue the defendant’s motion to dismiss
the complaint is granted, and upon reargument the decision of this court dated June 12, 2012 is adhered to in its entirety, and it is further,ORDERED, that the branch of the plaintiff’s motion for leave to amend the complaint to add a cause of action for fraud and to restore the action to the calendar of the court is denied."

In this legal malpractice case, defendant made motions in a seemingly out-of-order fashion, yet succeeded even though.  Here is the AD discussing a novel method of moving to dismiss in Shirzadnia v Lecci   2012 NY Slip Op 09043   Decided on December 26, 2012   Appellate Division, Second Department:
 

"The plaintiff commenced the instant action by the filing of a summons and complaint on December 28, 2004. By notice of motion dated February 15, 2005, the defendant moved for an order, inter alia, "pursuant to CPLR 3211 and 3212 dismissing the complaint upon the ground that there is documentary evidence which precludes plaintiff’s complaint." In an order dated June 15, 2005, the Supreme Court denied that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211, without addressing that branch of the motion which was for summary judgment. Following discovery, the defendant, by notice of motion dated June 9, 2011, moved for an order "pursuant to CPLR Rule 3211(a)(1) through (7) and 3212 dismissing the action." The Supreme Court granted that branch of the defendant’s motion which was pursuant to CPLR 3212 for summary judgment dismissing the complaint.

The plaintiff’s sole argument on appeal is that the Supreme Court should have denied the defendant’s motion as either an untimely motion for leave to reargue, or an improper successive motion for summary judgment. However, since the defendant’s 2005 motion was made prior to the service of an answer, and the 2011 motion was made following the completion of discovery, the record supports the Supreme Court’s determination that the 2005 motion was not properly characterized as one for summary judgment, and that, accordingly, the 2011 motion did not violate the rule against successive motions for summary judgment (see Sutter v Wakefern Food Corp., 69 AD3d 844, 845; see also Kimber Mfg., Inc. v Hanzus, 56 AD3d 615, 616; Williams v City of White Plains, 6 AD3d 609). For similar reasons, the defendant’s 2011 motion was not an untimely motion for leave to reargue. "