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. "

We would like to take this opportunity today to wish all a Happy New Year, with health and blessings.  This past year has been tumultious and the odds are that 2013 will be exciting as well. We’re looking forward to reporting on the Legal Malpractice news and cases as time and energy swirl around us.

Global Bus. Inst. v Rivkin Radler LLP   2012 NY Slip Op 09180   Decided on December 27, 2012
Appellate Division, First Department  is the exception to the rule, where Supreme Court declines to dismiss and the AD reverses. The AD’s reasoning is fairly clear.  They hold that Plaintiff cannot prove that the poor commercial outcome is the attorney’s fault.  Rather, it was plaintiff who agreed to the terms of the commercial deal, so…

"In this action for legal malpractice, defendant met its burden on summary judgment of "showing an absence of proximate cause" between the alleged negligence and plaintiff’s losses (Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 151 [1st Dept 1998]). The documentary evidence establishes that plaintiff, and defendant, the firm that represented plaintiff in the negotiation and drafting of the lease, requested that the landlord agree to utilizing a later base year than 2004/05 for real estate tax escalation and the landlord refused. The documentary evidence also establishes that plaintiff knowingly accepted the landlord’s terms on this issue. In addition, defendant demonstrated that the landlord would not have agreed to an additional penalty beyond deferment of rent for late completion of the construction required for plaintiff to use the premises for its business.

Plaintiff failed "to demonstrate a material issue of fact on the question of proximate cause" (Levine, 256 AD2d at 151). Notably, neither of plaintiff’s experts contradicted defendant’s expert’s testimony that, at the time the subject lease was being negotiated, the real estate market strongly favored landlords. [*2]

Plaintiff’s claim that it would have pursued alternative space is speculative and therefore insufficient to establish that defendant’s malpractice, if any, was a proximate cause of plaintiff’s loss (see Brooks, 21 AD3d at 734-735). "

In Green v Gross & Levin, LLP   2012 NY Slip Op 09027   Decided on December 26, 2012
Appellate Division, Second Department  which is a Pro-se legal malpractice complaint, all that can be discerned from the Appellate Division is that there were a lot of causes of action and that some of them survived.

The AD disagreed with Supreme Court’s reason for dismissal, but nevertheless dismissed on alternate grounds.  "The Supreme Court correctly concluded that personal jurisdiction over Naidoo was never obtained, as the plaintiff failed to present prima facie proof that Naidoo was served with process in accordance with CPLR 308. Therefore, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against Naidoo, based on lack of personal jurisdiction.

However, the Supreme Court should not have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against G & L, based on lack of personal jurisdiction. The plaintiff presented prima facie proof that service was effected upon Gross, a partner in G & L, by personally delivering a copy of the summons with notice to a paralegal at the office of G & L, which was Gross’s actual place of business, and then mailing a copy of it to Gross at G & L in an envelope marked personal and confidential and not [*2]indicating that the communication was from an attorney or concerned a legal action. Contrary to the conclusion of the Supreme Court, this service was sufficient to confer personal jurisdiction over G & L, which is a limited liability partnership, since service was properly effected upon one of G & L’s partners (see CPLR 308[2]; 310-a; Maine v Jay St. Realty Assoc., 187 Misc 2d 376, 379; Atkinson v D.M.A. Enters., 159 Misc 2d 476, 479-480; see also Foy v 1120 Ave. of the Ams. Assoc., 223 AD2d 232, 236-238). Although G & L alleges that only one copy of the summons with notice was left with the paralegal, this was not a jurisdictional defect, since such notice was reasonably calculated, under all the circumstances, to apprise Gross and, hence, G & L, of the pendency of the action and afford G & L an opportunity to present its objections and defenses (see Raschel v Rish, 69 NY2d 694, 696; see also Brown v Sagamore Hotel, 184 AD2d 47; Matter of T.E.A. Mar. Automotive Corp. v Scaduto, 181 AD2d 776).

Although lack of personal jurisdiction was not a proper basis for dismissal of the complaint against G & L, and the Supreme Court incorrectly determined that the first, second, fourth, fifth, ninth, tenth, eleventh, twelfth, thirteenth, and fourteenth causes of action did not state a cause of action against Gross, those defendants correctly contend that alternative grounds for affirmance exist with respect to certain of those causes of action.

"On a motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 704-704; see Leon v Martinez, 84 NY2d 83, 87). "A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence may be granted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law" (Mendelovitz v Cohen, 37 AD3d 670, 670; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "

"Here, the documentary evidence conclusively established a defense as a matter of law to the allegations of legal malpractice, as set forth in the first and fourth causes of action insofar as asserted against G & L and Gross, and the seventh cause of action, which was only asserted against G & L. In addition, the third cause of action fails to state a cause of action to recover damages for legal malpractice insofar as asserted against both G & L and Gross, and the sixth cause of action, which was only asserted against G & L, fails to state a cause of action to recover damages for legal malpractice against it. However, the documentary evidence did not conclusively establish a defense as a matter of law as to the remaining causes of action. Moreover, the allegations set forth in the eighth cause of action state a cognizable cause of action against G & L, and the allegations set forth in the remaining causes of action state cognizable causes of action against both G & L and Gross. "

Plaintiff seemingly made some bad procedural choices during the litigation, and even though defendants failed to appeal from all the issues, they ultimately win.

In Wright v Shapiro   2012 NY Slip Op 08964   Released on December 21, 2012   Appellate Division, Fourth Department  the Court writes:
 

"James J. Shapiro and James J. Shapiro, P.A. (defendants) appeal from an order denying their motion for summary judgment dismissing the second amended complaint against them and granting plaintiff’s cross motion to compel the deposition of James Shapiro. We note at the outset that, although defendants’ notice of appeal is from the order in its entirety, they do not address plaintiff’s cross motion in their brief and thus, as limited by their brief, are deemed to have appealed only from the denial of their motion. We further note that the appeal taken by defendant Chikovsky & Associates, P.A. has been deemed abandoned and dismissed by its failure to perfect the appeal in a timely fashion (see 22 NYCRR 1000.12 [b]).

We agree with defendants that Supreme Court erred in denying their motion. By establishing that plaintiff could not have prevailed in his underlying personal injury action, defendants met their initial burden of establishing their entitlement to summary judgment with respect to the first cause of action against them, for legal malpractice (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442), and plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562). We note that the court erred in concluding, based on our decision in Wright v Shapiro (16 AD3d 1042), that the doctrine of law of the case precluded summary judgment following discovery. Furthermore, plaintiff’s theory of liability premised on respondeat superior is barred by his discontinuation of that action on the merits against the employee, thus eliminating the triable issue of fact we discussed in our subsequent decision in Wright v Shapiro (35 AD3d 1253). Therefore, the court should have [*2]granted defendants’ motion with respect to the first cause of action in that regard (see Town of Angelica v Smith, 89 AD3d 1547, 1549-1550).

Inasmuch as the second cause of action is premised upon the legal malpractice cause of action, which we are hereby dismissing against defendants, we further conclude that the court erred in denying defendants’ motion with respect to the second cause of action against them. "

Husband suffers personal injury in a fall from a scaffold.  He resolves the case for $1M.  Even at that number, he and wife then succeed in a legal malpractice case for an additional $ 297,000.  What happens then?  Burnett v Burnett   2012 NY Slip Op 08850   Decided on December 20, 2012 Appellate Division, Third Department tells the sad but familiar story of everything unraveling.
 

"The parties were married in 1974 and raised six grown children. During the course of the marriage, plaintiff (hereinafter the wife) worked within the home and defendant (hereinafter the husband) was the primary wage earner, excluding a period during the marriage — described by Supreme Court as "significant" in duration — when the husband left the wife and children dependant upon public assistance benefits and charity from her family. In 2002, in the course of his employment, the husband suffered personal injuries in a fall from a scaffold. In 2006, the parties settled their claims for personal injury and loss of consortium in the combined net sum of $1 million and deposited the funds into a joint investment account managed by their son, with the stated intention of drawing $4,000 monthly from the account for their household expenses and support. In 2007, they jointly obtained a settlement payment upon a legal malpractice action (arising from the underlying personal injury and consortium claims) in the sum of roughly $297,000. The husband deposited this check into his separate account. Thereafter, the husband engaged in extensive and habitual gambling, depleting the accounts. After learning of an adulterous affair in 2009, the wife withdrew the remaining balance of just under $140,000 from the joint investment account. The husband has never accounted for the funds from the malpractice settlement and Supreme Court found, based upon this failure and upon his "less than forthcoming testimony," that the possibility remained that he had secreted or transferred assets.

Supreme Court awarded the wife title to the marital residence, the remaining balance of [*2]the investment account, and the household furnishings and farm equipment. The husband received his checking account, plumbing business and equipment, and a motor boat and trailer. The husband appeals.

We reject the husband’s contention that Supreme Court erred in determining that the settlement funds were marital property. Although the governing statute provides that compensation for personal injury constitutes separate property (see Domestic Relations Law § 236 [B] [1] [d] [2]), here, Supreme Court noted the complete lack of any evidence upon which the funds might have been allocated as between the husband’s personal injury claim and the wife’s consortium claim, and the substantial evidence supporting the legal presumption that the parties wished to treat the proceeds as joint assets of the marriage (see Cameron v Cameron, 22 AD3d 911, 912 [2005]; Garner v Garner, 307 AD2d 510, 512 [2003], lv denied 100 NY2d 516 [2003])."
 

Both the underlying case and the legal malpractice case were resolved by summary judgment, except that the Appellate Division reversed dismissal of the legal malpractice case, and determined that the motion was so deficient that they did not need to read plaintiff’s brief.

In Lever v Roesch   2012 NY Slip Op 08699  Decided on December 19, 2012  Appellate Division, Second Department We see the story of a trip and fall in a parking lot, and how it went sour.
 

"The plaintiff allegedly sustained personal injuries when she tripped and fell over a hole in the parking lot of a shopping center. She retained the defendants to commence a personal injury action on her behalf against Breslin Realty Development Corp. (hereinafter Breslin), the owner of the property where she allegedly fell. Thereafter, the Supreme Court granted Breslin’s motion for summary judgment and dismissed the underlying action. Specifically, the Supreme Court found that, in opposition to Breslin’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether Breslin either created or had actual or constructive notice of the alleged defect. The Supreme Court denied the plaintiff’s motion for leave to renew and reargue her opposition to Breslin’s motion.

The plaintiff subsequently commenced the instant action to recover damages for legal malpractice, alleging, inter alia, that the defendants failed to timely locate potential notice witnesses and to properly oppose Breslin’s motion for summary judgment, which resulted in the dismissal of the underlying action. The defendants moved for summary judgment dismissing the complaint in the instant action, and the Supreme Court granted their motion.

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [internal quotation marks omitted]; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 910, 911-912; Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772). "To establish [*2]causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Barbieri v Fishoff, 98 AD3d 703; Board of Mgrs. of Bay Club v Borah, Goldstein, Schwartz, Altschuler & Nahins, P.C., 97 AD3d 612, 613). "To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements" (Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772 [internal quotation marks omitted]).

Here, the defendants did not establish, prima facie, that the plaintiff will be unable to prove at least one of the elements of legal malpractice, and thus failed to demonstrate their entitlement to judgment as a matter of law (see Affordable Community, Inc. v Simon, 95 AD3d 1047, 1048). Triable issues of fact exist, inter alia, as to whether the defendants were negligent in their representation of the plaintiff in the underlying action. In light of our determination, we need not address the sufficiency of the plaintiff’s opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "