In Bernard v Proskauer Rose, LLP; 2011 NY Slip Op 06184 ;  Appellate Division, First Department we see a situation in which plaintiff sues his attorneys, who defend by arguing that the plaintiff brought it all upon himself.
 

"In this action for legal malpractice, breach of fiduciary duty and breach of contract, plaintiff alleges that defendants Proskauer Rose, LLP (Proskauer) and Michael Album (Album), a partner at Proskauer, failed to adequately advise him regarding his departure from Oaktree Capital Management, L.P. (OCM), a real estate investment hedge fund. Plaintiff alleges that as a result of defendants’ negligence he was sued in arbitration by OCM and sustained damages in the amount of $51.5 million, including forfeited incentive fees, compensatory damages paid to OCM, and legal fees. "

"In October 2005, plaintiff made an offer in OCM’s name to purchase 60 Main Street, a real estate investment opportunity he first learned of in November 2004. The offer was made without OCM’s knowledge or permission, and plaintiff furnished OCM’s financial information in support. In November 2005, plaintiff entered into a purchase agreement for the 60 Main Street property in the name of one of his own entities, Westport Property Management, LLC.

On or about November 1, 2005, plaintiff decided to leave OCM. Album, a partner in Proskauer’s Employee Benefits and Executive Compensation Group retained by plaintiff in October 2004, began discussions with OCM’s general counsel for plaintiff’s departure. On November 18, while discussions were ongoing, plaintiff resigned in writing as an employee and principal "effective immediately" and gave 120 days notice of his resignation as a member of OCM. On December 1, 2005, plaintiff issued a press release announcing the formation of Westport.

On December 12, 2005, the Executive Committee of OCM voted to expel plaintiff as a [*2]member due to his "abrupt departure and his announcement of the formation of a competing entity," and refused to pay him any incentive fees. Plaintiff initiated arbitration against OCM for recovery of fees he was purportedly owed and other damages. During arbitration, OCM learned of plaintiff’s misconduct with regard to ROF IV and 60 Main Street and on November 7, 2006, expelled plaintiff as a member on these independent grounds. OCM counterclaimed for damages on the grounds that plaintiff breached his contractual and fiduciary duties, and misappropriated confidential financial information. "

"Here, the arbitrator found that plaintiff’s dilatory conduct with regard to ROF IV, self-dealing with regard to the 60 Main Street opportunity, and misappropriation of OCM’s financial information constituted breaches of his fiduciary and contractual duties. The arbitrator specifically found that "[b]eginning in early 2005" plaintiff was "stalling the launch of [ROF] IV so that he could deflect possible investment sources to the new entity he was forming." The arbitrator found that during the summer of 2005, plaintiff formed Westport Capital Partners, LLC, and began collecting OCM information to take with him to his new venture. He requested a list of all of his contacts at OCM and copies of quarterly investment letters, and obtained detailed information about OCM investments made by specific investors.

Relying on the arbitrator’s factual findings, the motion court determined that plaintiff’s course of misconduct began well before any purported advice received by plaintiff from defendants in August 2005. The court observed that there was no indication that "defendants knew of, or advised plaintiff to purchase 60 Main Street" for Westport, or to "collect[] OCM’s financial information for his personal use." The motion court concluded that these activities, which the arbitrator found to be breaches of fiduciary duty and/or contractual duty, would have resulted in his justifiable expulsion regardless of his resignation.

The factual findings and issues resolved by the arbitrator establish that it was plaintiff’s own misconduct prior to and apart from any advice from defendants that led to his termination for cause. The plaintiff had a full and fair opportunity to litigate these facts and issues at arbitration, and the application of collateral estoppel precludes him from relitigating them in this malpractice action (see e.g. GUS Consulting Gmb, 74 AD3d 678-679; Fajemirokun v Dresdner Kleinwort Wasserstein Ltd., 27 AD3d 320 [2006], lv denied 7 NY3d 705 [2006]).

Because the arbitral findings establish as a matter of law that defendants were not the cause of plaintiff’s losses, the motion court properly dismissed plaintiff’s complaint (see Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [2007], affd 11 NY3d 195 [2008]). Plaintiff’s claim that had he not resigned, he may have been able to hide his fraudulent activities, [*4]continue to collect fees, and reach an agreement with OCM is purely speculative and does not raise a triable issue of fact (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434-436 [2007]; GUS Consulting Gmb, 74 AD3d at 679; Phillips-Smith Speciality Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 [1999], lv denied 94 NY2d 759 [2000]). "
 

In Legal Malpractice the question of a statute of limitations often arises. Legal malpractice accrues on the date that the mistake is made, not on the day plaintiff discovers it. Continuous representation allows plaintiff to continue to use the attorney, and does not require an immediate suit, In Aronov v Law Off. of Roman Popik, P.C.;2011 NY Slip Op 31739(U);  ;Sup Ct, NY County;Docket Number: 116100/09;Judge: Debra A. James we see one variant of the problem.

Attorney represented client in the drafting of a partnership break-up and negligently drafted the non-compete portion so that it failed to restrain the retiring partner from competing. It mistakenly restrained the remaining partners from competing against the retiring partner.

Law firm then represented the clients in a series of related litigations, but there were big time gaps between. Was this continuous?

"It is undisputed that the defendants not only drafted the agreement that is the source of the malpractice obligations, but represented the plaintiffs in subsequent litigation concerning
the agreement. appeals resulted in summary judgment being awarded against the
plaintiffs dismissing their claims in May 2005. over the agreement apparently recommenced in August 2008 when the former partner sought to restore the action to t h e calendar and sought judgment on counterclaims against the plaintiffs. On June 2, 2009, the Appellate Division, Second Department awarded The initial phase of the litigation including The litigation summary judgment against the plaintiffs on monetary claims under the agreement. The defendants represented the plaintiffs in the entirety of the litigation. This court therefore finds that the plaintiffs are entitled
to the application of the continuous representation toll and that their claim f o r malpractice is timely. The defendants continuously represented plaintiffs w i t h respect to the agreement
provisions that are the subject of the malpractice claims (see Antoniu v Ahearn, 134 AD2 d 151, 152 -153 [1st Dept 1987) and therefore defendants motion pursuant to CPLR 3211 (a) (5) must be granted" (typo?)
 

in  MCCLUSKEY -v.- NEW YORK STATE UNIFIED COURT SYSTEM, CHIEF JUDGE JONATHAN LIPPMAN, GABOR & GABOR, DAVID GABOR, HOPE GABOR, Defendants-Appellees we see a pro-se litigant’s swipe at the NYS Court system, and his former attorneys. This Federal case takes place after plaintiff lost a legal malpractice case against the same defendant-attorneys.

You may not sue the State successfully for claimed mistakes of a judge. "The district court correctly dismissed the claims against the State Defendants. First, the claims against the State Defendants are based solely on judicial acts preformed by judges in their judicial capacity. Hence, the claims against Chief Judge Lippman are barred by the doctrine of judicial immunity. Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). In addition, McCluskey’s claims for injunctive relief against Judge Lippman are barred by statutory judicial immunity because McCluskey did not allege that "a declaratory decree was violated" or that "declaratory relief was unavailable." 42 U.S.C. § 1983; see also Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999).

Second, the claims against the Unified Court System are barred by the Eleventh Amendment since it is an arm of the State of New York. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) ("This jurisdictional bar applies regardless of the nature of the relief sought."); see also N.Y. Const. art. 6, § 1 (creating the unified court system); In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) ("[The Eleventh Amendment] jurisdictional bar also immunizes a state entity that is an arm of [*6] the State.") (internal quotation marks omitted); Zuckerman v. App. Div., Second Dep’t, 421 F.2d 625, 626 (2d Cir. 1970) (holding that the Appellate Division was not a person under § 1983). In addition, there is no evidence suggesting any waiver of sovereign immunity. See Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S. Ct. 3304, 73 L. Ed. 2d 1057 (1982) ("A suit generally may not be maintained directly against the State itself, or against an agency or department of the State, unless the State has waived its sovereign immunity.")."

The claim against the attorney failed too: "Likewise, the district court correctly dismissed the claims against the Gabor defendants. First, private actors are not proper § 1983 defendants when they do not act under color of state law. See Am. Mfrs. Mut. Ins. Co., v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999) (explaining that § 1983 actions do not reach purely private conduct). "[A] private actor acts under color of state law when the private actor is a willful participant in joint activity with the State or its agents." Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (internal quotation marks omitted). A "conclusory allegation that a private entity acted in concert with a state actor [*7] does not suffice to state a § 1983 claim against the private entity." Id.

McCluskey contends that Gabor acted "jointly" with the Appellate Division by moving to dismiss his appeal for lack of jurisdiction, a motion which the Appellate Division granted. This claim is meritless, see Ciambriello, 292 F.3d at 324, especially as McCluskey concedes that state law permitted Gabor to move to dismiss the appeal, and the Appellate Division had "no choice but to apply the reargument procedural rule uniformly."

Second, to the extent that McCluskey asked the district court to review state court rulings in favor of Gabor, his complaint was properly dismissed pursuant to the Rooker-Feldman doctrine. Lower federal courts lack subject matter jurisdiction in "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. V. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005). As the district court correctly concluded, McCluskey’s allegations against Gabor largely reiterate the claims made in the original state court malpractice proceedings, [*8] claims that were dismissed on the merits."
 

Real estate broker is asked to find a buyer.  Broker presents a buyer, but no deal ensues.  Broker papers the transaction and sits back.  Later transaction goes through and Broker eventually seeks commission.  Sellers attorney is sues.  Is he liable?

Land Man Realty, Inc. v Faraone   2012 NY Slip Op 08218   Decided on November 29, 2012
Appellate Division, Third Department tells us the following:  it’s not enough to say " I did not commit malpractice," so please let me out of the case! 
 

"The facts of this case are more fully set forth in our prior decision of this matter (70 AD3d 1246 [2010]), as well as another related decision of this Court (Land Man Realty, Inc. v [*2]Weichert, Inc., 94 AD3d 1221 [2012]). Briefly, defendants owned a 54-acre parcel of land in the Town of Wilton, Saratoga County, and entered into an exclusive listing agreement with Weichert Realtors Northeast Group to sell the property. Shortly thereafter, plaintiff’s counsel sent multiple letters to, among others, defendants, claiming that it had previously presented Capital District Property, LLC (hereinafter CDP) as purchaser of the property prior to the property being listed with Weichert. Therefore, in the event that CDP purchased the property, plaintiff would be entitled to a 10% commission pursuant to an alleged oral agreement with defendants. Weichert ultimately sold the property to CDP.

Thereafter, plaintiff commenced this action against defendants, claiming that it was the procuring cause of the sale of the property and is entitled to a 10% commission pursuant to an alleged agreement with defendants. As is relevant herein, defendants, in turn, commenced a third-party action against third-party defendant, Robert W. Pulsifer, an attorney who represented defendants in the real estate transaction. Defendants claim that Pulsifer (1) failed to respond or take any action regarding plaintiff’s letters asserting a claim for a commission, and (2) negotiated the contract for the sale of property to CDP in a manner that did not sufficiently protect defendants against plaintiff’s commission claim. Defendants moved for summary judgment dismissing the complaint and Pulsifer moved for summary judgment dismissing the amended third-party complaint. Supreme Court denied both motions. Pulsifer now appeals.

We affirm. A legal malpractice action requires a showing that an attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession [and] the attorney’s breach of this professional duty caused the plaintiff’s actual damages" (McCoy v Feinmann, 99 NY2d 295, 301-302 [2002] [internal quotation marks and citations omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; M & R Ginsberg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1208-1209 [2011]). Here, although Pulsifer himself avers that based upon his legal experience he was not negligent in the advice and representation he provided to defendants, he failed to submit adequate proof establishing the applicable standard of care and whether he breached that standard. As Pulsifer failed to meet his initial legal burden of establishing his entitlement to summary judgment as a matter of law (see Jack Hall Plumbing & Heating, Inc. v Duffy, AD3d , ___, 2012 NY Slip Op 07249, *2 [2012]), his summary judgment motion was properly denied.

Plaintiff sues attorneys for a divorce situation in which he alleges they represented both him and his wife, and lost about $1 million for him in the proceedings. His complaint, in Verdelis v Landsman ; 2011 NY Slip Op 32196(U);  Sup Ct, NY County; Docket Number: 651767/10; Judge: Judith J. Gische survives both a CPLR 3211(a)(1) and (a)(7) motion, yet is dismissed on the basis that it was brought 3 years + two weeks after the judgment of divorce was entered. The Court finds that the cause of action accrued on the date of entry of the judgment of divorce.

"Plaintiff claims that Defendants were retained to represent him in an uncontested divorce proceeding, Daphne Sirneon v. Konstanhos Verdelis, 30981 1/07, (the “Underlying Action”) involving his ex-wife, Daphne Simeon (“Sirneon”). Defendants deny the allegations and bring this pre-answer motion to dismiss the complaint based upon: (I) a defense founded on documentary evidence (CPLR 3 321 1 [a][l]), (2) the expiration of the statute of limitations (CPLR § 321 1 [a][5]),
and (3) failure to state a cause of action (CPLR 5 3211 [a][7]). Plaintiff opposes the
motion."

"Plaintiff alleges that in 2007, the defendants failed to inform him that they were not representing him. Specifically, Plaintiff claims that the Defendants improperly rendered legal advice to him and they did not advise him that there were adverse interests between him and his wife. Plaintiff claims that Simeon told him that the defendant’s fees were $5,476 and that he was to pay 1/2 of the fees by paying Simeon $2,738. Plaintiff further alleges that the Defendants protected Simeon to his disadvantage, and that they failed to advise him that he was entitled to equitable distribution of the marital assets that totaled approximately $2,000,000. Plaintiff also claims that they did not advise
him to seek outside counsel before he waived his right to approximately $1,000,000 in
distributable assets"

"Although the attorney-client relationship is contractual in nature, formality is not an essential element to its formation. Talanskv v. Schulman, 2 A.D.3d 355, 358 (1st Dept. 2003). An attorney-client relationship may exist where an attorney was involved in the drafting, preparation and execution of a separation agreement, even though the attorney did not negotiate its terms or provide advice to the plaintiff. Shanlev v Welch, 31 A.D.3d 1127 (2006); see also Leon v Martinez, 84 NY2d 83 (1 994) (plaintiffs pleaded enough to infer existence of attorney-client relationship where defendant attorneys had drafted agreement between their client and plaintiffs in which client agreed to pay portion of lawsuit proceeds to plaintiffs ). Allowing the complaint a liberal construction and taking into account the Plaintiffs submissions, Plaintiff has sufficiently pleaded a cause of action for legal malpractice."

"Defendant’s documentary evidence relied upon by defendants does not conclusively, taken in a light most favorable to the Plaintiff, eliminate the possibility that an attorney-client relationship existed between Plaintiff and Defendants. Therefore, the Motion to Dismiss pursuant to CPLR 5 321 l(a)(i) is denied."

"A cause of action for legal malpractice based upon a divorce proceeding accrues on the date the
Judgment of Divorce was actually entered. Zorn v. Gilbert, 8 N.Y.3d 933 (2007). See, McCoy, supra, at 205 (Holding that the plaintiff had a cause of action on the day the divorce judgment was filed with the County Clerk’s office and as a result, plaintiffs claim was time barred as she brought it more than three years later). Consequently, Plaintiffs argument that his claim accrued when he was mailed the Judgment of Divorce is rejected. Based on the foregoing, Plaintiff was required to commence his action for legal malpractice against the Defendants by October 5, 201 0. Since the instant action was not commenced until October 18, 201 0, by the filing of a Summons with Notice, it is untimely under the applicable statute of limitations period. Plaintiffs First Cause of Action, for Legal Malpractice must therefore be dismissed as time-barred pursuant to CPLR 3321 I (a)(5).

In DUSHYANT KURUWA and MONICA ARGUELLES, Plaintiffs, -v.- MILTON L. MEYERS, Defendant.;09 Civ. 4412 (GWG);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ;2011 U.S. Dist. LEXIS 122466; October 21, 2011, we a most unusual case of successful pro-se litigants. Even more so, the Court granted punitive damages agaisnt the attorney. In the opening paragraphs, we may see the reason.
 

"On April 12, 2011, after the Court denied both parties’ motions for summary judgment, see Order, filed Mar. 2, 2011 (Docket # 40), the Court ordered the parties to submit a proposed joint pretrial order by May 6, 2011. Order, filed Apr. 12, 2011 (Docket # 43). The Court directed Meyers to supply his portion of the pre-trial order materials to plaintiffs by April 22, [*2] 2011. See id. ¶ 2. At Meyers’ request, this deadline was extended to April 27, 2011. Memorandum Order, filed Apr. 25, 2011 (Docket # 44). Meyers did not comply with this deadline but instead wrote a letter after the deadline seeking an extension sine die for medical reasons, which was granted. See Memorandum Order, filed May 6, 2011 (Docket # 47). By Order dated May 24, 2011, the Court gave Meyers an extension until June 15 to submit his pre trial order materials to plaintiffs. See Order, filed May 25, 2011 (Docket # 48). The Court extended this deadline to June 22. See Order, filed June 15, 2011 (Docket # 49). Meyers failed to meet this deadline, however, and has never asked that it be extended.

When the June 22 deadline was not met, the Court issued an Order to Show Cause directing Meyers to show cause why he should not be sanctioned for his failure to supply his portion of the joint pre-trial order materials. See Order, filed June 29, 2011 (Docket # 50). Not only did Meyers fail to provide a reason to the Court as to why he should not be sanctioned, he failed to respond to the Order to Show Cause at all. Accordingly, the Court issued an order finding Meyers in default as a sanction [*3] pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vi). See Order, filed July 14, 2011 (Docket # 51)"

"Meyers is an attorney with an office in New York, NY. Compl. ¶ 4. Kuruwa is a citizen of India and his wife, Arguelles, is a citizen of Mexico. Id. ¶¶ 2,3. In August 2007, Kuruwa was hired "as a Project Engineer by the Turner Corporation." Id. ¶ 8. At the time he was hired, Kuruwa had an H1-B visa which authorized him to work in the United States. Id. ¶ 10. Kuruwa had obtained the H1-B visa in or around 1999 and it was set to expire on July 28, 2008. Id. ¶¶ 10-11. As the dependent of an H1-B visa recipient, Arguelles had an H-4 visa. Id. ¶ 17.

In September 2007, Kuruwa agreed that Meyers would process his visa paperwork to extend his stay past July 28, 2008. Id. ¶ 12. Meyers was aware that Kuruwa’s visa expired in 2008 and that he needed to act quickly. See Email from M. Meyers to R. Vigilante, dated Aug. 21, 2007 (annexed as Ex. 16 to Pl. Aff.). Kuruwa’s employer, Turner Corporation, agreed to sponsor Kuruwa for a green card application. Compl. ¶ 20. Meyers agreed to submit the green card application [*8] for Kuruwa. Id. ¶ 21. Meyers claimed to have filed the green card application, see id. ¶ 23; id. Ex. A, but in fact did not do so, id. ¶ 24. Nor did Meyers file for an extension of the H1-B visa before it expired. Id. ¶ 25. Kuruwa did not learn that his paperwork was not completed until March 7, 2009, when he was notified by the Department of Homeland Security that a petition to extend his B-2 status had been denied. Id. ¶ 26. Kuruwa also learned that someone, without his authorization, had filed a petition to change his status to "B1/B2 – business or tourist." Id. ¶ 27, 29.

Kuruwa and Arguelles departed from the United States in July 2009, though they later returned. The record on this motion does not explain how they returned or what their current immigration status is. The Court notes that they appeared at a court conference seeking to relieve their attorney on October 1, 2010."

"Meyers does not dispute the amount that Kuruwa asserts constitutes one-year’s salary at Turner Corporation.3 Instead, he argues that Kuruwa had a duty to mitigate his damages. Def. Aff. ¶ 4. Meyers is correct that under New York law a "harmed [*11] plaintiff must mitigate damages." Air Et Chaleur, S.A. v. Janeway, 757 F.2d 489, 494 (2d Cir. 1985) (citations omitted); accord Wilmot v. State, 32 N.Y.2d 164, 168 (1973) ("[T]he party seeking damages is under the duty to make a reasonable effort to avoid consequences of the act complained of.") (internal quotations and citations omitted). However, the burden is on the defendant to introduce "evidence to prove that plaintiffs could have lessened their damages." Air Et Chaleur, S.A., 757 F.2d at 494 (citation omitted). A defendant must show that the plaintiff failed to mitigate, and that reasonable efforts "would have reduced the damages." Tatar v. Elite Gold, Inc., 2002 WL 31682391, at * 2 (S.D.N.Y. Nov. 26, 2002) (citations omitted); accord Coastal Power Int’l Ltd. v. Transcont’l Capital Corp., 10 F. Supp. 2d 345, 370 (S.D.N.Y. 1998) (citations omitted).

FOOTNOTES

3 Kuruwa seeks $109,227 as one year’s salary. See Pl. Aff. at 9; Ex. 8A, 8B. While the total amount supported by the documentary evidence Kuruwa provides — including a promised bonus, a 15% locality adjustment, and a July 1, 2008 merit increase — would seem to support a slightly greater annual salary, we will accept Kuruwa’s figure.

Despite [*12] having the burden to show the failure to mitigate, Meyers has provided no evidence on this point. He merely states his own belief — the foundation of which is not revealed — that "while markets and construction were depressed here that apparently was not the case in India." Def. Aff. ¶ 4. This vague and unsupported statement is insufficient to show that Kuruwa failed to mitigate damages. Accordingly, Kuruwa is entitled to damages of $109,227, or one year’s salary, as Kuruwa requests. See Pl. Aff. at 9; Ex. 8A, 8B.

In addition, Meyers’ failure to inform plaintiffs that their visas had expired led them to incur costs in arranging for a voluntary departure from the United States. See Pl. Aff. at 13. In order to avoid being subject to a mandatory ten-year ineligibility period, see 8 U.S.C. § 1182(a)(9)(B)(i)(I), plaintiffs voluntarily departed the United States on July 18, 2009. Pl. Aff. at 13, Ex. 11D. As it was Meyers’ failure to file the necessary paperwork and inform plaintiffs of their illegal status that led to their voluntary departure, Kuruwa is entitled to the expenses related to arranging for and effectuating the voluntary departure, or $6,808. See Pl. Aff. 13; Ex. 11A-G."

"Punitive damages are available where the plaintiff demonstrates "conduct that was directed to the [*17] general public or that evinced the requisite ‘high degree of moral turpitude’ or ‘wanton dishonesty.’" Williams v. Coppola, 23 A.D.3d 1012, 1013 (4th Dep’t 2005) leave dismissed 7 N.Y.3d 741 (2006) (quoting Walker v. Sheldon, 10 N.Y.2d 401, 405 (1961)). The Court believes the standard of "wanton dishonesty" has been met in that it is alleged that Meyers was dishonest in asserting that he had filed a green card application on Kuruwa’s behalf. Accordingly, the Court in its discretion awards $25,000 in punitive damages to Kuruwa and $5,000 in punitive damages to Arguelles."

Plaintiff’s husband was the victim of a really serious act of medical malpractice and hired defendant Buttafuoco to handle the case.  he was successful, and settled the case for $ 3.7 million.  What followed is a morass of claims, counterclaims and accusations.

Husband needed a guardian, and Wife was appointed.  In Urias v Daniel P. Buttafuoco & Assoc., PLLC  2012 NY Slip Op 32792(U)  November 14, 2012  Supreme Court, Suffolk County
Docket Number: 11-7186  Judge: Daniel Martin we see that  Buttafuoco app led for court approval of his fee, and obtained it.  The question is, does one apply the Med mal fee structure to the entire amount of recovery and then apportion to the various defendants, or does one apply the Med Mal fee structure individually to each defendant’s settlement amount.  Choice between  these two methods yields a huge difference in the fee of almost $ 200,000.

"It is undisputed that Buttafuoco represented the plaintiff in prosecuting an underlying medical
malpractice action in Suffolk County Supreme Court for injuries to her husband, Manuel Urias. The
subject retainer agreement provided that Buttafuoco’s legal fees would be calculated pursuant to
Judiciary Law 474-a (2) and (4). Due to her husband’s physical condition, Buttafuoco successfully made application to the Supreme Court Nassau County (Guardianship Court) to have the plaintiff appointed as the guardian for her husband. The order and judgment of the Guardianship Court required the plaintiff to seek the approval of said court regarding the settlement and award of legal fees in the medical malpractice action. The malpractice action was settled in open court, with the plaintiff present, on April 2. 2009 in the sum of $3,700,000. In May 2009, the plaintiff retained Newman in place of Buttafuoco to seek the necessary approvals from the Guardianship Court. On July 20. 2009, counsel for the parties in the medical malpractice action appeared before the Hon. Paul J. Baisley to obtain a change in the settlement terms of that action not relevant herein. At that appearance, Buttafuocco submitted an exhibit (Exhibit 3 ) setting forth his calculation of the legal fees due to his firm by applying the statutory sliding scale of Judiciary Law 474-a (2) against the settlement amounts attributable to the four defendants in the medical malpractice action, and he indicated that “we followed the schedule.” On or about September 29.2009, Newman moved by order to show cause seeking. among other things. the necessary approvals from the Guardianship Court. By order dated October 27, 2009, the Guardianship Court (Phelan, J.) approved the transfer of assets from the plaintiffs husband to her pursuant to Mental Hygiene Law $8 1.2 1. and denied approval of the settlement of the medical malpractice action and the legal fees due “without prejudice to renewal after the Supreme Court, Suffolk County, has had an opportunity to revisit
the legal fees.” Said order noted that “There were several defendants, and the total sum was allocated among the various defendants. Section 474-a of the Judiciary Law was used to calculate the legal fees based upon each individual defendant’s settlement amount, which resulted in a greater legal fee than if the calculations had been based upon the total sum recovered.” On or about November 9,2009, Newman moved the Supreme Court, Suffolk County for an order “confirming the amount of legal fees awarded to Plaintiffs counsel and the manner in which such legal fees were calculated …” By order dated March 24, 2010, the Court (Baisley, J.) confirmed “the amount of the legal fees awarded to plaintiffs counsel and the manner in which such legal fees were calculated …” On or about May 20, 201 0, Newman moved the Guardianship Court for an order approving the settlement of the malpractice action, “including the amount of legal fees awarded to Plaintiffs counsel and the manner in which such legal fees were calculated …” By order dated June 7,2010, the Guardianship Court (Phelan, J.) granted said motion citing the findings of the Hon. Paul J. Baisley, Jr. that “the legal fees approved by the court comport with the language and mandates of the statute .. .” In her complaint, the plaintiff alleges that, at the July 20, 2009 appearance, Buttafuoco misrepresented to the court that he was following the schedule set forth in Judiciary Law 474-a (2), and that the legal fees set forth in Exhibit 3 likewise were in accordance with that schedule. The plaintiff further alleges that Buttafuoco “intentionally materially misrepresented” to her that his legal fees and expenses as set forth in Exhibit 3 were in accordance with their written retainer agreement. that Buttafuoco illegally and improperly took the sum of $710,000 as a legal fee instead of the “lawful and proper legal fee in the amount of $5 16,226.40,” and that Buttafuoco deceived the plaintiff by using the Court’s approval of his legal fees in the amount of $864,552.37 to make her think that his taking a lee of only $71 0.000 benefit ted her and her husband. In addition, the plaintiff alleges that Buttafuoco disburscd a check payable directly to her husband prior to Newnian’s application to the Guardianship Court for an order permitting the transfer of all of his assets to her, which made her husband ineligible for Medicaid benefits from the Nassau County Department of Social Services, and resulted in an additional lien against the settlement proceeds in the medical malpractice action.

Here, a review of the complaint reveals that the plaintiff has plead a cognizable cause of action
for legal malpractice. In her complaint, the plaintiff alleges that Buttafuoco disbursed a check payable directly to her husband prior to Newman’s application to the Guardianship Court for an order permitting the transfer of all of his assets to her, which made her husband ineligible for Medicaid benefits from the Nassau County Department of Social Services, and resulted in an additional lien against the settlement proceeds in the medical malpractice action. Accordingly, that branch of the defendant’s motion which seeks to dismiss the plaintiffs Sixth Cause of Action for legal malpractice pursuant to CPLR 321 1 (a.) (7) is denied."

Reading the beginning of this case immediately brought us back to a Conflicts class at law school.  We were to to analyze an auto accident in which plaintiff resided in state A and the accident took place in state B and the insurer was from state C…well you get the picture.  Here in Cambridge Integrated Servs. Group, Inc. v Faber   2012 NY Slip Op 07880   Decided on November 20, 2012
Appellate Division, First Department   a NY resident was injured in a MVA in Connecticut while employed by a NJ company who had NJ workers’ compensation.
 

"On September 14, 2000, defendant Donald Pressley, a New York City resident, was injured in a tractor-trailer accident in Connecticut during the course of his employment with nonparty Cobra Express Inc., which is located in New Jersey. Fremont Compensation Company (Fremont), the workers’ compensation carrier for Cobra Express, paid Pressley New Jersey workers’ compensation benefits, making the last payment to Pressley on May 9, 2002.

On or about September 19, 2000, Pressley retained nonparty Paul A. Shneyer, Esq., to bring a personal injury lawsuit for injuries he sustained in the accident. When Shneyer failed to timely commence an action, Pressley commenced a malpractice action against him. The Faber defendants represented Pressley in that action and settled the case against Shneyer in December 2008. On March 24, 2009, plaintiff, the administrator for Fremont (now in liquidation), commenced the instant action to enforce a lien against the settlement proceeds.

The Faber defendants maintain that under Matter of Shutter v Phillips Display Components Co. (90 NY2d 703 [1997]), New Jersey cases holding that workers’ compensation liens attach to legal malpractice recoveries (see Frazier v New Jersey Mfrs. Ins. Co., 142 NJ 590, 667 A2d 670 [1995]; Utica Mut. Ins. Co. v Maran & Maran, 142 NJ 609, 667 A2d 680 [1995]) do not apply in this case because the malpractice recovery did not duplicate the medical payments and lost wages Pressley received under workers’ compensation. This argument is unavailing. Pursuant to a June 2010 order from which the Faber defendants did not appeal, New Jersey law applies to the merits of plaintiff’s claims and thus, New York law regarding double recoveries is inapplicable. [*2]

Under New Jersey law, a double recovery "occurs when the employee keeps any workers’ compensation benefits that have been matched by recovery against the liable third person" (Frazier, 142 NJ at 602, 667 A2d at 676 [emphasis in original]), rendering irrelevant whether the settlement of the legal malpractice action included medical expenses and lost wages. We note, however, that even if New York law applied, the settlement did not specify what it was for and therefore, we cannot conclude that no part of it was for medical expenses and lost wages.

Defendants’ argument that the application of New Jersey law in this case violates New York public policy because Pressley is a New York resident fails because although defendants have shown that New York and New Jersey law differ on this issue, they have not satisfied the stringent test for rejecting New Jersey law as against New York public policy (see 19A NY Jur 2d, Conflict of Laws § 17).

Contrary to defendants’ argument, the instant action is not time-barred. As agreed to by the parties, New York’s three year statute of limitations is applicable. We agree with the motion court that plaintiff’s claim accrued when Pressley received the settlement payment from Shneyer (see Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175-176 [1986]). "