Breytman v Schechter   2012 NY Slip Op 08475   Decided on December 12, 2012   Appellate Division, Second Department seems to be the culmination of a very contentions case.  Early on, Plaintiff earned the ire of Justice Schack in Supreme Court, Kings County.  The AD now has written a decision which in many ways mirrors the Supreme Court decision.
 

"The appeal from the intermediate order dated February 8, 2011, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241). The issues raised on the appeal from the order dated February 8, 2011, are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

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 the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). Here, the defendants Roberta S. Schechter, as executor of the estate of Donald Schechter, and Donald Schechter, P.C. (hereinafter together the Schechter defendants), satisfied their prima facie burden of establishing their entitlement to judgment as a matter of law dismissing the causes of action alleging legal malpractice. In opposition thereto, the plaintiff failed to raise a triable issue of fact (see Natale v Samel & Assoc., 308 AD2d 568, 569; Schadoff v Russ, 278 AD2d 222, 223).

As for the remaining causes of action, the Schechter defendants also made a prima facie showing of entitlement to judgment in their favor, in response to which the plaintiff failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

The plaintiff failed to set forth any proof of the Supreme Court’s bias or prejudice which would support recusal (see Walter v Walter, 62 AD3d 787, 788).

The Supreme Court properly imposed a sanction upon the plaintiff for his frivolous conduct in connection with his motion, inter alia, for leave to reargue his opposition to the Schechter defendants’ motion, among other things, for summary judgment dismissing the complaint insofar as asserted against them, as the plaintiff’s motion was completely without merit in law and was undertaken primarily to harass Roberta S. Schechter (see 22 NYCRR 130-1.1).

Finally, while public policy mandates free access to the courts, "when a litigant is abusing the judicial process by hagriding [sic] individuals solely out of ill will or spite, equity may enjoin such vexatious litigation’" (Matter of Simpson v Ptaszynska, 41 AD3d 607, 608, quoting Matter of Shreve v Shreve, 229 AD2d 1005, 1006 [internal quotation marks omitted]). Here, the Supreme Court properly directed the plaintiff to seek leave of the "appropriate Administrative Justice or Judge" before filing any additional actions against the Schechter defendants (see Matter of Simpson v Ptaszynska, 41 AD3d at 608; Matter of Pignataro v Davis, 8 AD3d 487, 489). "

The attorney has died, and the legal malpractice case continues.  In Leon Petroleum, LLC v Carl S. Levine & Assoc., P.C.  2012 NY Slip Op 32913(U)  December 5, 2012  Supreme Court, Suffolk County  Docket Number: 08-36154  Judge: Daniel Martin the result turns on what an expert may say in a summary judgment affidavit.

Plaintiff successfully contracts to buy a large number of gas stations.  Prior to the contract NYS had condemned three of the stations, and an award was won, but not yet paid.  Who would get the award, buyer or seller?

"This action was commenced to recover damages allegedly sustained by the plaintiffs as the result of the failure of the defendant Carl S. Levine, Esq., Deceased (Levine) to properly draft a contract clause ensuring that the plaintiffs would receive the payment of monies due from the State of New York regarding the condemnation of portions of gas stations which the plaintiff was in the process of purchasing.

At his deposition, Leon testified that he is the managing member of LPL, which owns and leases
gas stations. that he oversees the company’s litigation, and that he oversaw the action  commenced by LPL against Tartan to recover the unpaid condemnation awards. He stated that LPL was formed to obtain Tartan’s assets. that he believed that LPL signed a written retainer with Levine in 1997 or 1998 in which Levine agreed to represent LPL in the purchase of Tartan’s assets, and that he had not seen the retainer for many years. In August 1999, LPL acquired the assets of Tartan, including three gas stations which had been previously condemned by New York State (the State). He was led to believe that the Contract of Sale between I,PL and Tartan protected LPL‘s right to acquire the unpaid awards due from the State after the closing under the contract. He indicated that, during the contract negotiations, he spoke with Levine in the late winter/early spring of 1998 about the unpaid awards.

Having established their entitlement to summary judgment dismissing the complaint against
them, it is incumbent upon the plaintiffs to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O’Neill v Fishkill. supra). In opposition to the motion, the plaintiffs submit, among other things, an affidavit from an expert witness, copies of three briefs submitted in an appeal filed by Tartan in the action brought against it by LPL, and the deposition testimony of Levine. It is well settled that the statements of a decedent are not rendered inadmissible under the “Dead Man’s Statute” (see CPLR 45 19) when offered in opposition to a motion for summary judgment (see Phillips v Kantor & Co., 3 1 NY2d 307, 338 NYS2d 882 [ 972); Miller v Lu-Whitney, 61 AD3d 1043,  [3d Dept 2009); Lauriello v Gallotta, 59 AD3d 497, 873 NYS2d 690 [2d Dept 2009); Rosado v Kulsakdinun, 32 AD3d 282,, 820 NYS2d 239 [1st Dept 2006); McEvoy v Garcia.114 AD2d 401,494 NYS2d 125 [2d Dept 1985) Friedman v. Sills. 112 AD2d 343. 491 NYS2d 794 [2d Dept 1985).

The plaintiffs submit an expert opinion indicating that Levine clearly departed from the minimum standards of care, skill, knowledge and diligence commonly possessed by the legal profession
when he relied on section 1.O1 of the Contract of Sale to ensure that the unpaid awards would be
conveyed to LPL. In his affidavit dated June 11, 2012, Joseph N. Campolo, Esq. (Campolo) swears that section 1.01 was ambiguous as to whether the parties to the Contract of Sale intended for LPL to receive the condemnation awards, that the Blumberg form “purports to address only a condemnation between point of contract signature and closing …,” and that there should have been specific language regarding the pre-contract takings. He states that Levine’s failure left LPL vulnerable to Tartan’s arguments in the litigation between LPL and Tartan, resulting in the settlement of that action. Campolo concludes by stating “Accordingly, assuming that it was [Levine’s] intent to obtain those condemnation awards for his client (and both Mr. Levine’s and Mr. Leon [sic] depositions establish that it was) I do believe that Mr. Levine was negligent in relying on Section 1.01 and not insisting on specific language related to those awards.
It is well settled that the opinion testimony of an expert “must be based on facts in the record or
personally known to the witness” (see Hambsch v New York City Tr. Auth., 63 NY2d 723,480 NY S2d 195 [1984] citing Cassano v Hagstrom, 5 NY2d 643,646, 187 NYS2d 1 [1959]; Shi Pei Fang v Hang Sang Realty Cory., 38 AD3d 520, 835 NYS2d 194 [2d Dept 2007]; Santoni v Bertelsmann Property, Inc., 21 AD3d 712, 800 NYS2d 676 [1st Dept 2005]). An expert “may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion” (see Shi Pei Fang v Hang Sang Realty Corp, supra). Here, Campolo has failed to address the testimony of all of the witness, including Leon, which indicate that the issue of the condemnation awards was intentionally avoided by LPL and its counsel. Neither does Campolo address the impact on the negotiations between LPL and Tartan if specific language had been requested, and whether Levine’s alleged failure was the proximate cause of any damages suffered by LPL. A review of the plaintiffs’ submission in the light most favorable to them reveals that they have failed to raise an issue of fact requiring a trial in this action. Mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595 [1980]; Perez v Grace Episcopal Church, 6 AD3d 596. 774 NYS2d 785 (2d Dept 2004]; Rebecchi v Whitmore. supra)."

Attorney is retained by plaintiff to prepare a commercial and corporate agreement between plaintiff and a commercial suitor. In the end, plaintiff claims, attorney took a look at plaintiff’s niche business, then formed its own spin-off company to compete. Competition rose to the $ 2.5 billion level. Justice Feinman rendered a decision in Sharbat v Law Offs. of Michael B. Wolk, P.C.; 2011 NY Slip Op 30088(U) ;Sup Ct, New York County; Docket Number: 600151/2008
Judge: Paul G. Feinman which interprets and re-states some well known principals of legal malpractice and breach of fiduciary duty. Here’s some background:

"Sharbat is the president and sole equity holder of QSM. According to Sharbat, QSM is engaged in the business of “buying and re-selling certain qualified individual life insurance policies in the premium finance/life settlement arena – a niche industry.”

"Specifically, plaintiffs allege that, while defendants were acting as counsel for plaintiffs defendants were exposed to plaintiffs’ “business, business model, client base, stratagem for making profits, making contacts and recruiting clients.”

"As a result of defendants’ exposure to plaintiffs’ business and business contacts, plaintiffs
allege that defendants started a company called Lifespring Brokerage, LLC (Lifespring)).
Michael Morrisan (Modson), one of the founders of Lifespring, was working as an attorney for
that Wolk Firm during its representation of plaintiffs"

"Plaintiffs contend that defendants breached their fiduciary duty when they solicited plaintiff’s’ clients, misappropriated and utilized plaintiffs’ client lists without plaintiffs’ knowledge or consent, and unfairly competed with plaintiffs by starting an identical competing business. With respect to Ehrlich, as previously mentioned, defendants drafted a contract between plaintiffs and Ehrlich. Sometime after the attorney-client relationship was over, plaintiffs discovered that defendants were pursuing business with Ehrlich. Defendants do not deny contacting Ehrlich and pursuing business with him. Defendants merely state that plaintiffs have failed to establish that they had an exclusive right to conduct business with Ehrlich. Defendants summarily state that they did not receive a “penny” from Ehrlich. Defendants do not, however, deny that Lifespring received a profit from Ehrlich. Defendants also maintain that Ehrlich made his own independent decision not to conduct business with plaintiffs. As such, according to defendants, any conduct which may have harmed plaintiffs was the conduct on the part of Ehrlich not to conduct business with plaintiffs, not defendants’ conduct in pursuing business with him. With respect to Oceangate, Sharbat testified that 0Oceangate assured plaintiffs that it would give plaintiffs exclusive business. However, when plaintiffs followed up, Oceangate stated that It had decided to give its exclusive business to Lifespring.

In response, defendants make the same arguments, Le., that they never received a penny from any transactions with Oceangate, Oceangate chose not to conduct business with plaintiffs, and Oceangate was not plaintiffs’ exclusive client. Defendants do not deny pursuing business with Oceangate, nor do they deny that Lifespring received a profit from Oceangate."

"As set forth blow, the record indicates that not only have defendants not met their burden on a motion for summary judgment, but that plaintiff’s have created a triable issue of fact as to whether defendants’ professional judgment was impaired due to defendants alleged divided
loyalties, Factual issues remain with respect to Ehrlich, Oceangate, the client lists, and the use of
plaintiffs’ business models, and a potential breach of fiduciary duty."
 

The decision is somewhat short on facts, but we guess that this case arose froma settled landlord-tenant case in which tenant then died.  His estate sued his former attorneys, and the case continues.  Frankel v Vernon & Ginsburg, LLP   2012 NY Slip Op 08425   Decided on December 6, 2012   Appellate Division, First Department   tells us that the AD often scrutinizes the "but for" portion of the case very closely.

"The IAS court properly declined to dismiss the legal malpractice cause of action. Defendants failed to sustain their burden on summary judgment of demonstrating that plaintiff would be unable to prove one of the essential elements of his claim (see Sabalza v Salgado, 85 AD3d 436 [1st Dept 2011]). On the contrary, the record demonstrated that plaintiff’s decedent had viable causes of action for breach of the warranty of habitability and nuisance against defendants in the underlying action (see 61 W. 62 Owners Corp. v CGM EMP LLC, 77 AD3d 330 [1st Dept 2010], affd in part, mod in part 16 NY3d 822 [2011]; Misra v Yedid, 37 AD3d 284, 285 [1st Dept 2007]). Furthermore, the record demonstrated that plaintiff’s decedent might have recovered legal fees, which alone exceeded the amount of the settlement in this matter (Real Property Law § 234). "

It seems that in this particular legal malpractice case there have been three successive motions for summary judgment.  Supreme Court decided one way, then reversed itself, and re-reversed itself.  Finally, after more depositions, it granted summary judgment on the third or fourth try.  Is this permissible?

Coccia v Liotti   2012 NY Slip Op 08273   Decided on December 5, 2012   Appellate Division, Second Department   tells us that it is and isn’t permissible.  Read on:
 

"The defendant, an attorney, represented the plaintiff in a matrimonial action that was resolved by stipulation of settlement pursuant to which the plaintiff received, inter alia, $1.6 million in equitable distribution and an additional amount of annual maintenance. Thereafter, the plaintiff commenced this action alleging, among other things, legal malpractice. Specifically, the plaintiff alleged that the defendant negligently advised her to settle the underlying matrimonial action despite the suggestion of a forensic accountant that the plaintiff’s husband earned, or had the ability to earn, more money than he had disclosed. In an order entered September 13, 2007, the Supreme Court denied the defendant’s cross motion for summary judgment. Subsequently, in an order entered May 5, 2008, upon renewal, the Supreme Court, among other things, granted that branch of the defendant’s cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant’s alleged negligent advice to settle. This Court modified the order entered May 5, 2008, inter alia, upon renewal, by adhering to so much of the original determination in the order entered September 13, 2007, as denied that branch of the cross motion (see Coccia v Liotti, 70 AD3d 747). Thereafter, depositions of the plaintiff’s former husband and his accountant were conducted. The defendant again moved, inter alia, for summary judgment dismissing the complaint. In support, he annexed the deposition transcripts of the former husband and his accountant which, the defendant maintained, clarified any discrepancies between the former husband’s claimed income and his business records, and which further demonstrated that the financial basis for the underlying matrimonial settlement was sound. The defendant also made arguments in support of those branches of his motion which were for summary judgment dismissing the other causes of action that were duplicative of arguments he made in his earlier cross motion for summary judgment. In the order appealed from, the Supreme Court, inter alia, denied that branch of the defendant’s motion which was for summary judgment [*2]dismissing the complaint.

"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" (Sutter v Wakefern Food Corp., 69 AD3d 844, 845; see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615). Here, the only branch of the defendant’s motion that did not violate the general proscription against successive summary judgment motions was that branch which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant’s alleged negligence in advising the plaintiff to settle her matrimonial action. This was the only branch of the defendant’s motion which was based on deposition testimony of nonparty witnesses not elicited until after the defendant’s earlier cross motion for summary judgment was denied (see Alaimo v Mongelli, 93 AD3d 742, 743; Auffermann v Distl, 56 AD3d 502, 502; Staib v City of New York, 289 AD2d 560). Therefore, the remaining branches of the defendant’s motion for summary judgment were properly denied as violative of the rule against successive motions for summary judgment.

As to that branch of the motion which did not violate the general proscription against successive motions for summary judgment, the defendant met his prima facie burden of establishing entitlement to judgment as a matter of law (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068; Boglia v Greenberg, 63 AD3d 973, 975). The plaintiff’s opposition papers, in addressing the central issue of the cause of action, consisted merely of an affirmation of counsel that made conclusory and unsubstantiated assertions, and failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). "The defendant, an attorney, represented the plaintiff in a matrimonial action that was resolved by stipulation of settlement pursuant to which the plaintiff received, inter alia, $1.6 million in equitable distribution and an additional amount of annual maintenance. Thereafter, the plaintiff commenced this action alleging, among other things, legal malpractice. Specifically, the plaintiff alleged that the defendant negligently advised her to settle the underlying matrimonial action despite the suggestion of a forensic accountant that the plaintiff’s husband earned, or had the ability to earn, more money than he had disclosed. In an order entered September 13, 2007, the Supreme Court denied the defendant’s cross motion for summary judgment. Subsequently, in an order entered May 5, 2008, upon renewal, the Supreme Court, among other things, granted that branch of the defendant’s cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant’s alleged negligent advice to settle. This Court modified the order entered May 5, 2008, inter alia, upon renewal, by adhering to so much of the original determination in the order entered September 13, 2007, as denied that branch of the cross motion (see Coccia v Liotti, 70 AD3d 747). Thereafter, depositions of the plaintiff’s former husband and his accountant were conducted. The defendant again moved, inter alia, for summary judgment dismissing the complaint. In support, he annexed the deposition transcripts of the former husband and his accountant which, the defendant maintained, clarified any discrepancies between the former husband’s claimed income and his business records, and which further demonstrated that the financial basis for the underlying matrimonial settlement was sound. The defendant also made arguments in support of those branches of his motion which were for summary judgment dismissing the other causes of action that were duplicative of arguments he made in his earlier cross motion for summary judgment. In the order appealed from, the Supreme Court, inter alia, denied that branch of the defendant’s motion which was for summary judgment [*2]dismissing the complaint.

"Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause" (Sutter v Wakefern Food Corp., 69 AD3d 844, 845; see Kimber Mfg., Inc. v Hanzus, 56 AD3d 615). Here, the only branch of the defendant’s motion that did not violate the general proscription against successive summary judgment motions was that branch which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant’s alleged negligence in advising the plaintiff to settle her matrimonial action. This was the only branch of the defendant’s motion which was based on deposition testimony of nonparty witnesses not elicited until after the defendant’s earlier cross motion for summary judgment was denied (see Alaimo v Mongelli, 93 AD3d 742, 743; Auffermann v Distl, 56 AD3d 502, 502; Staib v City of New York, 289 AD2d 560). Therefore, the remaining branches of the defendant’s motion for summary judgment were properly denied as violative of the rule against successive motions for summary judgment.

As to that branch of the motion which did not violate the general proscription against successive motions for summary judgment, the defendant met his prima facie burden of establishing entitlement to judgment as a matter of law (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068; Boglia v Greenberg, 63 AD3d 973, 975). The plaintiff’s opposition papers, in addressing the central issue of the cause of action, consisted merely of an affirmation of counsel that made conclusory and unsubstantiated assertions, and failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324).

The audacity shown in this case makes the head spin.  Two brothers battle over ownership of a Long Island Nissan dealership.  More (or less) shocking is the cavalier manner in which they worked so that a divorcing wife would not get any part of the dealership in the divorce.  Did the attorney help out?  We’ll never know.

Rubio v Rubio   2012 NY Slip Op 32858(U)  November 26, 2012  Sup Ct, Suffolk County  Docket Number: 24515-2012  Judge: Emily Pines is not a divorce.  It’s brother against brother. 

"In response to the documentary evidence, Gary Rubio submitted an Affidavit in which he
claimed that although he had contemplated this transfer in order to raise funds in 2009 since he was n the midst of a divorce, the transfer was never consummated. Plaintiff sets forth that Defendants were aware of this fact because co-Defendant, Theodore Richman, Esq, counsel to Thomas Rubio and Joseph Rubio, so stated in a letter dated November 22.201 1 with regard to a lawsuit brought by Gary Rubio‘s ex-wife, Jennifer Giannelli, against Gary Rubio, Joseph Rubio and SmithtownNissan, Inc, seeking to set aside the October 2009 transfer. In such letter, Thomas Richman Esq advises his client not to state that a transfer of Gary Rubio’s interest had in fact occurred, since such would constitute perjury. Based upon these writings, Gary Rubio seeks sanctions against Thomas Rubio as well as the Richman Defendants for filing a frivolous motion. Gary Rubio also refers to 2009 and 2010 corporate tax returns for Smithtown Nissan, Inc, which set forth that Gary Rubio is a 25% shareholder of the corporation. Gary Rubio also asks for sanctions against Fina based upon the fact that Fina has claimed that Gary Rubio is liable to Fina for alleged violations of New York Labor Law  198-a and that such could only be possible if Gary Rubio were a shareholder of Fina’s former employer, Smithtown Nissan."

"“The well recognized doctrine of judicial estoppel is designed to protect the integrity of the
court system as a whole by prohibiting deliberate alteration of a stated position before the same or
different courts in order to obtain favorable treatment. New Hampshire v. Maine, 532 US 742 (200 1);
Festinger 11 Edrich, 32 AD 3d 412 (2nd Dep’t 2006). The doctrine prohibits a party who, having
obtained a favorable ruling based upon an asserted position, seeks to alter the position simply
because the litigant’s interests have changed. Jones Lcrng Wooten USA v Leboeuf Lamb, Greene & Mac Rae 2 43 AD 2d 168 (1” Dep’t 1998) leave to appeal dismissed, 92 NY 2d 962 (1998)”.

‘There is no question that what occurred in Watkins, supra, is akin to the scenario set forth
before the Court in the case at bar. Faced with a litigation commenced by his ex spouse, that Gary
Rubio had transferred his stock in Smithtown Nissan, Inc in 2009, in violation of the Debtor and
Creditor law, in order to avoid his obligations under the settlement of his matrimonial action, Gary
Rubio, both in sworn testimony and in verified pleadings before this Court’s colleague, Justice
Gerald Asher, stated that he had, indeed, transferred all of his shares of such entity to his father,
Joseph Rubio, in exchange for $188,509.87, which sum he utilized to make mortgage payments on the marital residence. Gary Rubio appended, in the pleadings before that Court, both a copy of the canceled check demonstrating that he had received and utilized the funds and a copy of the 2009stock transfer agreement. Now the same party states under oath before this Court that the transfer never occurred.

Gary Rubio‘s assertions that his statements do not fall within the judicial estoppel purview,
since the litigation by his ex-wife terminated in settlement as opposed to judgment are misplaced.
First, the settlement was approved by Justice Asher on the record; second, it is clear from the total
record in that case, that there was no dispute and indeed that both parties before Justice Asher
submitted sworn statements in the action before that jurist that Gary Rubio had transferred all his
shares in the corporation that is the subject of this lawsuit and was not an owner of the corporation
at the time he (appeared before Justice Asher and settled his ex-wife‘s claim of over $568.761.11 for approximately $200,000.00. The combination of the sworn pleadings and the deposition testimony
by Gar) Rubio in connection with the Giannelli action, were part of the record before another court
of coordinate jurisdiction. With regard to the statements by Thomas Richman, Esq, to his client,
Joseph Rubio, they are irrelevant, as they were never brought before the Court in that action and
because they are directly contradicted by the person seeking approval of the settlement before Justice Asher and seeking relief before this Court, upon totally contradictory bases. Indeed, the settlement of that matter before Justice Asher, in June 2012, allows the discontinuance of Ms. Giannelli’s action against the corporation, Smithtown Nissan, Inc, which she sued. There is no rational basis on which such could have occurred if Gary Rubio was still a shareholder of that entity when the stipulation was presented to the Court. The court is not unmindful of the issue of the 2010 corporate tax return. However, as damaging as that may appear and, in this Court’s opinion it should be corrected, it was not presented to a court in order to avoid a specific action, i.e. the invasion of corporate assets by the ex spouse of Gary Rubio.

Since the doctrine of judicial estoppel clearly applies to the case and prevents the Plaintiff;
Gary Rubio, from asserting that he is a shareholder of Smithtown Nissan, Inc., he lacks standing to
bring an action, incorporating any of the causes of action set forth in his complaint as each and every one of them is brought both on behalf of the corporation and is premised upon Gary Rubio’s status as a shareholder of such entity. Accordingly, the motions of Thomas Rubio, Craig Fina as  well as the Richman Defendants to dismiss this action are granted. Based upon the above , there exists no cause of action against Defendants Greenbaum and Berman, Sosman & Rosenzweig LI,C as those causes of action are based solely upon alleged aiding and abbetting the other parties, against whom the action has been dismissed."

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?)