Regular practitioners get little enough guidance in the appellate process, and reasons for dismissals and other outcomes are not always apparent or even stated.  Here, in two cases a pro-se plaintiff has her case dismissed, but with almost no guidance.  In Cascardo v Snitow Kanfer Holtzer & Millus, LLP   2012 NY Slip Op 07615   Decided on November 14, 2012   Appellate Division, Second Department  and in Cascardo v Stacchini   2012 NY Slip Op 07616   Decided on November 14, 2012  Appellate Division, Second Department  we see practically the same delphic pronouncements.  In Stacchini  the Court writes: " Contrary to the plaintiff’s contention, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord [the plaintiff] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). "Such a motion should be granted where, even viewing the allegations as true, the plaintiff cannot establish a cause of action" (Parekh v Cain, 96 AD3d 812, 815; see High Tides, LLC v DeMichele, 88 AD3d 954, 956-957; Schwartz v Schwartz, 55 AD3d 897). "

In Sniktow we see "Here, even viewing the factual allegations of the complaint as true, they failed to state a cause of action to recover damages for legal malpractice. In this regard, the plaintiff’s allegations, inter alia, that the defendants failed to present alleged evidence that the plaintiff in the underlying constructive trust action was manipulated into commencing that action against her, were irrelevant [*2]to the presentation of a viable defense against the elements of that constructive trust claim (see generally Rowe v Kingston, 94 AD3d 852, 853; Marini v Lombardo, 79 AD3d 932, 933). Accordingly, the complaint did not allege sufficient facts to state a cause of action to recover damages for legal malpractice

Here, even viewing the factual allegations of the complaint as true, they failed to adequately state a legally cognizable cause of action. Indeed, in this action against the attorneys who represented her adversaries in unrelated litigation, the plaintiff cannot allege the existence of the requisite contractual, fiduciary, or attorney-client relationship between herself and the defendants to support her various claims sounding in breach of contract, breach of fiduciary duty, and legal malpractice (see generally Breen v Law Off. of Bruce A. Barket, P.C., 52 AD3d 635, 636-637). [*2]Likewise, the plaintiff cannot properly plead reasonable reliance on the representations of another party’s counsel so as to support her claim of fraud (see Mann v Rusk, 14 AD3d 909, 909-910). "

Two losses.  Same appellate panel.

Attorneys skip from firm to firm, and take cases with them.  Some cases hold that the former law firm remains on the hook even though the attorney left.  Rosenbaum v Sheresky Aronson Mayefsky & Sloan, LLP   2012 NY Slip Op 07651   Decided on November 14, 2012   Appellate Division, Second Department does not.  While in the past, the Appellate Division has written: "The statute of limitations was tolled as to defendant because the attorneys who initially handled the matter continued to represent plaintiffs in the matter, albeit at different law firms, until 2005 (see Antoniu v Ahearn, 134 AD2d 151 [1987])", here the result is different.
 

From Rosenbaum:  "As alleged in the amended complaint, the plaintiff was represented by the defendant Alton L. Abramowitz and two other members of the defendant firm Sheresky, Aronson, Mayefsky & Sloan, LLP (hereinafter the Sheresky Firm), beginning in February 2006. When Abramowitz joined the defendant firm Mayerson, Stutman, Abramowitz, LLP (hereinafter together the Mayerson Firm defendants), in or around August 2006, he continued to represent the plaintiff pursuant to a retainer agreement with that firm, as did the Sheresky Firm. According to the allegations in the amended complaint, the Mayerson Firm defendants’ representation of the plaintiff continued until August 25, 2008, while the Sheresky Firm’s representation of the plaintiff continued until approximately February 23, 2009. "
 

"The Mayerson Firm defendants tendered evidentiary material conclusively and indisputably demonstrating that their relationship with the plaintiff ended in March 2007, which was 19 months before the separation agreement was executed. In the interim, successor counsel, the Sheresky Firm, negotiated the separation agreement, which the plaintiff executed in November 2008. Under these circumstances, the Mayerson Firm defendants could not have been a proximate cause of the allegedly "wholly inadequate" separation agreement (see Marshel v Hochberg, 37 AD3d 559; Perks v Lauto & Garabedian, 306 AD2d 261, 261-262; Albin v Pearson, 289 AD2d 272). The remaining allegations of legal malpractice against the Mayerson Firm defendants are conclusory, and the plaintiff’s affidavit failed to remedy those defects (see Hashmi v Messiha, 65 AD3d 1193, 1195; Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1022; Hart v Scott, 8 AD3d 532). Therefore, the Supreme Court properly granted that branch of the Mayerson Firm defendants’ motion which was to dismiss the cause of action alleging legal malpractice insofar as asserted against them. "
 

Pryor Cashman is no stranger to legal malpractice cases. In today’s NYLJBrendan Pierson reports on one such case.  The lawsuit, Fitzsimmons v. Pryor Cashman, 651360/10, was filed in August 2010.

"The plaintiffs are the trustees of three benefit funds for the Construction Workers Local 147, better known as the Sandhogs. The plaintiffs allege Pryor Cashman’s malpractice allowed Melissa King, former administrator of the funds, to embezzle $42 million before she was caught. King was arrested in December 2009 and sentenced in June 2012 to six years in prison."

Pryor Cashman had been counsel to the funds for over a decade when the embezzlement came to light. The trustees allege the law firm should have noticed that the administrative fees were unusually high, and counseled the trustees to investigate and to hire an independent auditor."
 

Now, they have been ordered to pay $ 21,000 in fees for making a new motion seeking leave to appeal to the Court of Appeals. "Pryor Cashman has been ordered to pay more than $21,000 in legal fees for filing a "frivolous" motion in a legal malpractice lawsuit filed by the trustees of employee benefit funds accusing the firm of failing to provide advice that would have prevented the funds’ third-party administrator from embezzling $42 million."

Plaintiff buys a co-op in 2002.  She re-finances in 2008 using the same attorney.  In 2010 she hires the same attorney to sell the unit and  learns for the first time that the certificate of occupancy permits the unit to be used only as a professional office, not for residential use.  Is an action for legal malpractice commenced in 2010 timely or barred by the statute of limitations?

Attwood v Sokol   2012 NY Slip Op 32744(U)  October 25, 2012  Supreme Court, New York County
Docket Number: 112043/2010  Judge: Saliann Scarpulla, to our surprise, holds that the action is timely.  We had always thought of the continuing representation principal as an archepellego.  If the distance between the events (islands) was less than 3 years, then one could skip from island to island and still be within the statute.  Here, there was more than 3 years between events, yet the action is timely.

"The parties do not dispute that the applicable statute of limitations for legal malpractice is three (3) years. Waggoner v. Carum, 68 A.D.3d 1, 6 (1st Dep’t 2009) (citing CPLR 24 l(6); 203(a)). “A legal malpractice claim accrues when the malpractice is committed, not when the client discovers it. Under the ‘continuous representation’ doctrine, however, a client cannot reasonably be expected to assess the quality of the professional service while it is still in progress.” West Village Assocs. Ltd. Partnership v. Balber Pickard Battistoni Maldonado & Ver Dan Tuin, PC, 49 A.D.3d 270 ( l1st Dept’t 2008). “The doctrine is ‘generally limited to the course of representation concerning a specific legal matter,’ and this is ‘not applicable to a client’s . . . continuing general relationship with a lawyer . . . involving only routine contact for miscellaneous legal representation . . . unrelated to the matter upon which the allegations of malpractice are predicated.”’ Id., quoting Shumsky v. Eisenstein, 96 N.Y.2d 164, 168 (2001).

Here, Sokol continued to represent Attwood on various real estate matters involving the premises, including her refinance in 2008 and her attempt to sell the property in 2010.See Farrauto, Berman, Fontana & Selznick v. Vorasak Keowongwan, 166 Misc. 2d 804, 808 (Yonkers City Court 1995)  where attorneys continued to represent client “on various real estate matters” involving the property . . . “the Statute of Limitations would be tolled until [defendant’s] representation ceased”).
Sokol’s attempt to establish that he did not continuously represent Attwood is unavailing. Sokol did not represent Attwood in relation to any other properties, or in any other real estate transactions, or other non-real estate matters. Additionally, Sokol testified at his deposition that the issue of  whether the premises could be used as a residence arose during the 2002 closing, when he had to “educate” the mortgage lender because the premises was not a “classic” residential apartment.
Sokol further asserts that his representation of Attwood in 2008 for the refinance of her mortgage was unrelated to her purchase, and that Attwood could have hired any attorney to assist her.  However, Attwood submitted documents produced by Sokol in discovery in this action, which show the issue of whether the premises could be used as a residence was raised that during the course of the refinance. The issue of the certificate of occupancy, therefore, was something which Sokol had to deal with continuously, from the time of the purchase and closing, to the refinance,
and eventually when Attwood attempted to sell the premises in 201 0. Accordingly, because Sokol continuously represented Attwood, the statute of limitations was tolled, and Attwood’s action against him is timely."

Once upon a time, the universally known and understood standard of whether a settlement (as against a dismissal or a verdict) of the underlying case affected the right to sue the attorney could be stated as "Was the settlement effectively compelled my mistakes of the attorney?"  Now that bedrock principal seems to have been eroded, and perhaps completely washed away.  First came the "allocution" cases in which plaintiff is asked whether they are satisfied with their attorneys’ work.  The expected "yes" doomed the case.  Now, in Schloss v Steinberg ,  2012 NY Slip Op 07599  Decided on November 13, 2012  Appellate Division, First Department we see the Court completely disregard the principal.
 

"Even if defendant’s acts or omissions rose to the level of negligence, plaintiff’s legal malpractice claims remain speculative. Indeed, nothing in the record shows that but for defendant’s negligence, plaintiff would have been awarded a larger distribution of the marital estate or received a better settlement in the matrimonial action (see Katebi v Fink, 51 AD3d 424, 425 [1st Dept 2008]; Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [1st Dept 2002]). Plaintiff’s speculative arguments are insufficient to raise triable issues of fact (see Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

We reject plaintiff’s claim that she was not given a fair opportunity to voice objections or concerns during the allocution in the matrimonial action. During the allocution, plaintiff acknowledged on the record that she understood and agreed with the settlement terms, and understood that it was a final and binding agreement. Accordingly, plaintiff should not be heard to disavow the allocution (see e.g. Harvey v Greenberg, 82 AD3d 683 [1st Dept 2011]). "

Pro-se litigation in legal malpractice has a poor prognosis.  There are many idiosyncratic aspects to legal malpractice cases, and Pouncy v Solotaroff    2012 NY Slip Op 07381  Decided on November 8, 2012   Appellate Division, First Department is one example.  What is the line between reasonable and unreasonable strategic choice?
 

"The IAS court properly dismissed plaintiff’s claim for legal malpractice, as the complaint failed to state a claim for that cause of action. Rather, plaintiff’s complaint amounts "to no more than retrospective complaints about the outcome of defendant[s’] strategic choices and tactics," with no demonstration that those choices and tactics were unreasonable (Rodriguez v Fredericks, 213 AD2d 176, 178 [1st Dept 1995], lv denied 85 NY2d 812 [1995]). In any event, plaintiff’s claims are barred by the doctrine of collateral estoppel (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]; Wray v Mallilo & Grossman, 54 AD3d 328, 329 [2d Dept 2008]). "

The field of potential legal malpractice damages is narrow, and the lines surrounding permissible damages has narrowed of late.  Here, in Kodsi v Gee   2012 NY Slip Op 07417   Decided on November 8, 2012   Appellate Division, First Department  we see the blanket principal that no non-pecuniary damages are permitted.
 

"Order, Supreme Court, New York County (Carol R. Edmead, J.), entered March 3, 2011, which, to the extent appealed from as limited by the briefs, denied so much of defendants’ motion for summary judgment as sought to dismiss the first, second, third and sixth causes of action, granted the motion as to the claim for damages based on emotional suffering, and denied plaintiff’s cross motion for summary judgment as to liability, unanimously modified, on the law, to grant defendants’ motion as to the first and second causes of action, and otherwise affirmed, without costs."

"The first cause of action, which alleges legal malpractice based on negligent delay, must be dismissed because plaintiff failed to raise an issue of fact in opposition to defendants’ prima facie showing that his alleged loss and injury were not proximately caused by any of their acts or omissions (see G & M Realty, L.P. v Masyr, 96 AD3d 689 [1st Dept 2012]; Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). The record shows that defendants assisted plaintiff and his then wife in effectuating an uncontested divorce and that any harmful delays in the prosecution of the divorce were caused by the couple’s indecision and inconsistence and plaintiff’s conduct. After the marital stipulation they executed was rejected by the court clerk, the wife volunteered to re-execute it but plaintiff instructed her not to do so. Several months later, she changed her mind about the stipulation, after learning that plaintiff allegedly was seeing another woman and was "manipulating" his income downward and secreting assets. Thus, the record demonstrates that it was not defendants’ alleged negligence but plaintiff’s own actions that caused his wife to abandon the original amicable agreement, whose terms plaintiff contends were more favorable to him than the terms of the settlement agreement on which the divorce judgment was entered.

The second cause of action alleges malpractice based on conflict of interest. The record [*2]contains no evidence that any conflict of interest proximately caused plaintiff to suffer any of the harm he alleges (see Schafrann v N.V. Famka, Inc., 14 AD3d 363 [1st Dept 2005]; Estate of Steinberg v Harmon, 259 AD2d 318 [1st Dept 1999]). "

"As to plaintiff’s request for damages for emotional suffering, "nonpecuniary damages … are not available in an action for attorney malpractice" (Dombroski v Bulson, 19 NY3d 347 [2012]). "

Statutes of limitation exist so that everyone may (someday) get on with their life.  Humans need to have a known parameter after which all claims from the past are null and void.  In legal malpractice, the statute of limitations is 3 years. The starting date of those three years is open to argument and analysis.  In transactional work, the date upon which malpractice occurred may be unclear.  Beyond trying to determine the date of the departure, there is the concept of continuous representation, which holds that a client is not required to sue his attorney while that attorney continues to represent the client, and may be trying to fix the mistake.

So, we look at Board of Mgrs. of 255 Hudson Condominium v Hudson St. Assoc., LLC  2012 NY Slip Op 32669(U)  October 22, 2012  Sup Ct, NY County  Docket Number: 101578/12  Judge:  Manuel J. Mendez, for guidance from another area of the law, albeit, professional negligence of another stripe.

"Plaintiff brought this action as the governing body of a condominium association, and seeks to recover damages caused to 255 Hudson Street Condominium by those individuals and entities responsible for its construction. The damages alleged include water leaks, malfunctioning heating and cooling units and missing sprinkler heads. This action was commenced on February 14, 2012, against Hudson Street Associates, LLC (hereinafter referred to as the "Sponsor"), Chistopher Matorella and Richard Mack (principals of the Sponsor); Gotham Greenwich Construction Co., LLC, (hereinafter referred to as "Gotham") as the contractor and construction manager; Ettinger Consulting Engineering (hereinafter referred to as "Ettinger") as an engineering consulting firm; Handel ‘Architects, LLP (hereinafter referred to as "Handel"), as the architect and DeSimone Consulting Engineers, PLLC (hereinafter referred to as "DeSimone") as structural engineers. The complaint asserts causes of action for breach of contract against all defendants;
negligence in performance of services against the contractor, engineers and architect; and breach of express warranty only as against the Sponsor. The plaintiff entered into a contract with the Sponsor, it alleges incorporated the agreements with all the other parties. "

"The statute of limitations on a claim against an architect that is essentially stated as breach of the ordinary professional obligations, pursuant to CPLR §214[6), has a three year statute of limitations, regardless of whether it is asserted as breach of contract or negligence (R.M. Klimment & Frances Halsband, Architects v. McKinsey & Company, 3 N.Y. 3d 538, 821 N.E. 2d 952, 788 N.Y.S. 2d 648 [20041). The statute of limitations on a claim against a design professional pursuant to CPLR §214[61, has a three year statute of limitations, regardless of whether it is asserted as breach of contract or malpractice. The three year statute of limitations begins to run from the date of termination of the professional relationship between the parties and the  completion of, "performance of significant (i.e. non-ministerial) duties under the the parties contract"(Sendar Development Co., LLC v. CMA Design Studio, P.C., 68 A.D. 3d 500, 890 N.Y.S. 2d 534 [N.Y.A.D. 1" Dept., 20091 citing to Parsons Brinckerhoff Quade & Douglas v. EnergyPro Constr. Partners, 271 A.D. 2d 233, 707 N.Y.S. 2d 30 [N.Y.A.D. 1" Dept., 20001). The date of the final certificate of occupancy, is not controlling for statute of limitations purposes, where there is no contractual responsibility for its issuance. Additional billing or a minimal amount of subsequent
work does not alter the completion date for the project (State of New York v. Lundin, 60 N.Y. 2d 987, 459 N.E. 2d 486, 471 N.Y.S. 2d 261 [1983). "