There is nothing new in the case of Jack Hall Plumbing & Heating, Inc. v Duffy   2012 NY Slip Op 07249   Decided on November 1, 2012   Appellate Division, Third Department , merely a restatement of the long-standing and settled rule that expert opinion is required to show that there was / was not a departure from good and accepted practice.  Supreme Court got it wrong, and the Third Department corrected Supreme Court, not once but twice.
 

"Soon after entering into the agreement, the relationship between the Halls and Scudder [*2]deteriorated to the point that Hall became concerned that he and his sons were in danger of losing the business due to Scudder’s mismanagement. Accordingly, Hall sought legal advice from defendant H. Wayne Judge concerning how to terminate Scudder in compliance with the employment agreement and in view of the urgency caused by the perceived danger to the business. After their meeting, Judge drafted a letter for Hall to give to Scudder. The letter outlined the reasons for Scudder’s termination and informed him that it was effective immediately. Hall and his sons then unanimously voted to terminate Scudder without giving Scudder notice and an opportunity to respond, after which Hall gave Scudder the letter drafted by Judge. Scudder responded by commencing an action against plaintiff for breach of the employment agreement. Although plaintiff, represented by Judge, prevailed at the trial of that action, we reversed and found that plaintiff failed to comply with the unambiguous terms of the employment agreement by terminating Scudder without any notice or opportunity to respond (Scudder v Jack Hall Plumbing & Heating, 302 AD2d 848 [2003]). Plaintiff then commenced this action alleging that defendants committed legal malpractice by negligently advising plaintiff in connection with Scudder’s termination. After joinder of issue and discovery, defendants moved for summary judgment dismissing plaintiff’s complaint. Finding that plaintiff’s opposing papers were inadequate to raise an issue of fact, Supreme Court granted the motion.

Plaintiff contends on appeal that defendants failed to meet their initial burden of presenting evidence in admissible form establishing that they had exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in discharging their obligations to plaintiff (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Adamski v Lama, 56 AD3d 1071, 1072 [2008]). This issue of the adequacy of the professional services provided here requires a professional or expert opinion to define the standard of professional care and skill owed to plaintiff and to establish whether the attorney’s conduct complied with that standard (see Tabner v Drake, 9 AD3d 606, 610 [2004]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]). Plaintiff argues that the affirmation by Judge submitted in support of defendants’ motion for summary judgment fails to establish his prima facie compliance with the standard of care. We must agree.

According to Judge, based on his reading of the contract and plaintiff’s bylaws, he formed a legal opinion that the employment agreement was ambiguous and that immediate termination was consistent with its terms. Judge was motivated, however, by Hall’s desire for urgency and his own view that engaging in the termination process provided for by the agreement would damage plaintiff’s business. While Judge offers his legal conclusion and the business-related motivation behind it, his affirmation is insufficient to establish compliance with the applicable standard of care because he neither defines that standard nor explains that a reasonable attorney would reach the same conclusion that he did on the facts as they were presented to him. In short, Judge’s explanation of the urgency of the business factors that he considered in formulating the advice that he gave fails to establish that his legal advice was within the standard of care.

Further, Judge’s reliance on the fact that he initially prevailed at trial as proof that his interpretation of the employment agreement was reasonable is also misplaced as that order was reversed by this Court on the law (Scudder v Jack Hall Plumbing & Heating, 302 AD2d at 851). Accordingly, the argument that any error was one of judgment in selecting between reasonable alternatives must fail in light of the lack of a prima facie showing that the legal advice provided was a reasonable course of action. Inasmuch as defendants failed to shift the burden to plaintiff [*3]to demonstrate a departure from the standard of care, the motion for summary judgment should have been denied (see Suppiah v Kalish, 76 AD3d 829, 832 [2010]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d at 927; Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 284 [1999]). "

In times of emergency, it might be a bit nerdish to worry about filing dates, but…

It’s obvious that the failure to file papers  on time can be a rich source of legal malpractice litigation, but for the period of October 26, 2012 until further notice, there is little that might arise in this area due to Executive Order No. 52:

It suspends CPLR 201, 5513, Court of Claims Act Section 25, a slew of Criminal Procedure Law section, and "any other statute, local law, ordinance, order, rule or regulation or part thereof, establishing limitations of time for the filing or service of any legal action, notice or other process or proceeding that the courts lack authority to extend through the exercise of discretion, where any limitation of time concludes during the period commending from the date that the disaster emergency was declared pursuant to Executive order Number 47, issued on October 28, 2012 until further notice."

Selection of an expert and the use of an expert at summary judgment has been fraught with uncertainty after Construction by Singletree Inc. v. Lowe in which Supreme Court declined to consider an expert affidavit, as no CPLR 3101 had been filed prior to the motion.  Now, in Rivers v Birnbaum   2012 NY Slip Op 06935   Decided on October 17, 2012   Appellate Division, Second Department   Belen, J. the uncertainty is over.
 

"BELEN, J.This case presents us with an opportunity to clarify the rule regarding a court’s consideration of an expert’s affirmation or affidavit submitted on a timely motion for summary judgment where the offering party did not disclose the expert during discovery pursuant to CPLR 3101(d)(1)(i) before the filing of a note of issue and certificate of readiness. We hold that a party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment. "

"Turning to the legislative history, as originally enacted in 1962, CPLR 3101 exempted expert witnesses from disclosure (see CPLR former 3101 [L 1962, ch 308]; Governor’s Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 6). Through the 1985 amendment to CPLR 3101, of which subdivision (d)(1)(i) is a part, the Legislature intended to "expand disclosure" (David D. Siegel, 1986 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:9, at 5), by requiring, for the first time, that parties disclose their experts, but deliberately did so only in the limited context of requiring a party, upon request, to make a pretrial disclosure of expected expert witnesses at trial.

CPLR 3101(d)(1)(i) was originally conceived as part of a major overhaul of medical malpractice litigation procedures. The new requirement in this overhaul that parties disclose their expert trial witnesses was intended to reduce the delay between the "medical malpractice event and the ultimate disposition," which was a major contributor to increased medical malpractice insurance premiums (Governor’s Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 9). Therefore, the amendment was conceived as part of a multi-pronged effort "to expedite litigation, to encourage prompt settlements and to deter parties from asserting frivolous claims and defenses" (id. at 9).

Thereafter, the provision was "plucked out" of its place in the original medical malpractice litigation reform bill and made applicable to all forms of litigation (see David D. Siegel, 1986 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:9, at 4; Rep No. 95 of Comm on State Legis, Bill Jacket, L 1985, ch 294 at 16). Modeled on Rule 26 of the Federal Rules of Civil Procedure, the proposed amendment marked a departure from the prohibition on expert disclosure in civil litigation by generally allowing parties "to conduct basic disclosure regarding experts without court order" (1985 Rep of the Advisory Comm on Civ Prac at 49). However, this expansion was relatively limited, as it only required, upon request, pretrial disclosure of the identity and qualifications of each person expected to be called at trial as an expert witness and the substance of their expected testimony, but did not require a party to disclose the experts it had retained but had not determined would be called at trial (see id.; Governor’s Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 4 [noting that "(s)ection four (of the bill) would require the disclosure of the qualifications of experts and the substance of their testimony prior to trial in civil actions"]).

Moreover, although the Legislature recognized that "the testimony of expert witnesses is often the single most important element of proof in malpractice and other personal injury actions" (Governor’s Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 9), the Legislature limited disclosure inasmuch as it did not provide for examinations before trial of expert witnesses (see Rep No. 95 of Comm on State Legis, Bill Jacket, L 1985, ch 294 at 16; compare id. with Fed Rules Civ Pro 26[b][4][A] ["A party may depose any person who has been identified as an expert whose opinions may be presented at trial"]).[FN6] [*6]

In its current form, CPLR 3101(d)(1)(i) requires a party, upon request, to disclose information regarding each person it expects to call as an expert witness prior to trial, without specifying that such disclosure must be made prior to the filing of the note of issue and certificate of readiness. Further, the language of CPLR 3101(d)(1)(i) anticipates that the disclosure of expert trial witnesses might not occur until near the commencement of trial. As such, the statute implicitly recognizes that parties often delay the retaining of an expert until it is apparent that settlement is unlikely and a trial will be necessary. Significantly, even if a party has retained an expert during discovery and is the recipient of a CPLR 3101(d)(1)(i) request for trial expert disclosure, it has no affirmative obligation to disclose that expert during discovery unless it "expects to call [that expert] as an expert witness at trial" (CPLR 3101[d][1][i]; see Vigilant Ins. Co. v Barnes, 199 AD2d 257).

Based on the plain language and intent of the statute, which do not automatically preclude experts disclosed near the commencement of trial from testifying at trial, there is no basis for concluding that a court must reject a party’s submission of an expert’s affidavit or affirmation in support of, or in opposition to, a timely motion for summary judgment solely because the expert was not disclosed pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness, or prior to the making of the motion [FN7]. We further note that a court has the discretion, under its general authority to supervise disclosure, to impose a specific deadline for expert disclosure under CPLR 3101(d)(1)(i), for example, prior to the filing of a note of issue and certificate of readiness or prior to a motion for summary judgment (see Mauro v Rosedale Enters., 60 AD3d 401). Moreover, where a trial court sets a specific deadline for expert disclosure, it has the discretion, pursuant to CPLR 3126, to impose appropriate sanctions if a party fails to comply with the deadline (see MacDonald v Leif, 89 AD3d 995; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654; Bomzer v Parke-Davis, 41 AD3d 522; Maiorino v City of New York, 39 AD3d 601) .

We recognize that certain decisions of this Court may have been interpreted as standing for the proposition that a party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness, by itself, requires preclusion of an expert’s affirmation or affidavit submitted in support of a motion for summary judgment. For example, in Construction by Singletree, Inc. v Lowe (55 AD3d 861), a subcontractor hired in a home construction project commenced an action against the general contractor, J.C. Construction Management Corp. (hereinafter J.C.), and J.C.’s client, Sheldon Lowe, trustee under the Sheldon Lowe declaration of trust dated January 15, 1999 (hereinafter Lowe), to recover money it allegedly was owed in connection with the project. Lowe cross-claimed against J.C. seeking, inter alia, to recover damages for breach of warranty based on J.C.’s allegedly improper installation of the flooring and insulation systems in the home, and seeking payment pursuant to a liquidated damages clause that had been added to the contract between himself and J.C.

After the completion of discovery, J.C. moved for summary judgment dismissing, inter alia, the aforementioned cross claims. In opposition, Lowe submitted, among other things, affidavits from purported experts in the flooring and air conditioning industries, opining that the flooring and insulation systems in the home were faulty, and estimating the costs to repair each system. A majority of the panel of Justices affirmed the determination of the Supreme Court to grant J.C.’s motion for summary judgment, concluding that J.C. established its prima facie entitlement to judgment as a matter of law, and that Lowe failed to raise a triable issue of fact in opposition. As to Lowe’s opposition, the majority stated that "[t]he Supreme Court did not improvidently exercise its discretion in declining to consider the affidavits of the purported experts proffered by Lowe, since Lowe failed to identify the experts in pretrial disclosure and served the affidavits after the note of [*7]issue and certificate of readiness attesting to the completion of discovery were filed in this matter" (id. at 863 [emphasis added]). The majority further explained:

"As it is undisputed that Lowe failed to identify any experts in pretrial disclosure whom he intended to call to testify at trial concerning whether the work was faulty or the extent of his alleged compensatory damages arising from that breach of warranty, and did not proffer any explanation for such failure, it was not an improvident exercise of discretion for the Supreme Court to have determined that the specific expert opinions set forth in the affidavits submitted in opposition to the motion for summary judgment could not be considered at trial" (id.).
Additionally, in addressing the dissent by Justice Carni, which concluded that CPLR "3101(d)(1)(i) applies only to an expert whom a party intends to call at trial," and not an expert used in a motion for summary judgment, the majority indicated that the affidavits of Lowe’s experts were inadmissible at trial (id.). The majority arguably found the affidavits of Lowe’s experts inadmissible in part because of Lowe’s failure to disclose its experts prior to the filing of the note of issue and certificate of readiness. Such a conclusion suggests, first, that Lowe’s failure to disclose the experts prior to the filing of the note of issue and certificate of readiness rendered the disclosure untimely pursuant to CPLR 3101(d)(1)(i), and, second, that such untimely disclosure rendered the experts’ affidavits inadmissible. Indeed, some of our decisions may be interpreted as so holding and as setting forth a bright-line rule in which expert disclosure pursuant to CPLR 3101(d)(1)(i) is untimely if it is made after the filing of the note of issue and certificate and readiness and, thus, in the absence of a valid excuse for such a delay, a court must preclude an affidavit or affirmation from an expert whose identity is disclosed for the first time as part of a motion for summary judgment (see e.g., Stolarski v DeSimone, 83 AD3d 1042, 1044-1045; Ehrenberg v Starbucks Coffee Co., 82 AD3d 829; Pellechia v Partner Aviation Enters., Inc., 80 AD3d 740; Vailes v Nassau County Police Activity League, Inc., Roosevelt Unit, 72 AD3d 804; Gerardi v Verizon N.Y., Inc., 66 AD3d 960; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917; King v Gregruss Mgt. Corp., 57 AD3d 851, 852-853; Colon v Chelsea Piers Mgt., Inc., 50 AD3d 616; see also DeLeon v State of New York, 22 AD3d 786, 787; Herrera v Lever, 34 Misc 3d 1239[A], 2012 NY Slip Op 50477 [U], *2-4).

We now clarify that the fact that the disclosure of an expert pursuant to CPLR 3101(d)(1)(i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely. Rather, the fact that pretrial disclosure of an expert pursuant to CPLR 3101(d)(1)(i) has been made after the filing of the note of issue and certificate of readiness is but one factor in determining whether disclosure is untimely. If a court finds that the disclosure is untimely after considering all of the relevant circumstances in a particular case, it still may, in its discretion, consider an affidavit or affirmation from that expert submitted in the context of a motion for summary judgment, or it may impose an appropriate sanction.

We further reiterate that a trial court, under its general authority to supervise disclosure deadlines, and consistent with its discretion to supervise the substance of discovery, may impose a specific deadline (for example, prior to the filing of the note of issue and certificate of readiness or prior to the making of a motion for summary judgment), for the disclosure of experts to be used in support of a motion for summary judgment, or who are expected to testify at trial, or both. Moreover, where a trial court has set a specific deadline for expert disclosure, it has the discretion, pursuant to CPLR 3126, to impose appropriate sanctions if a party fails to comply with the deadline (see MacDonald v Leif, 89 AD3d 995; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654; Bomzer v Parke-Davis, 41 AD3d 522; Maiorino v City of New York, 39 AD3d 601) .

As clarified, this rule is consistent both with the statute and with the general purpose of summary judgment itself. Summary judgment is the procedural equivalent of a trial and "must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable" (Dykeman v Heht, 52 AD3d 767, 769). In considering a motion for summary judgment, the function of the court is not to determine issues of fact or credibility, but merely to determine whether such issues exist (see Gitlin v Chirinkin, 98 AD3d 561; Dykeman v Heht, 52 AD3d at 769; Tunison v D.J. Stapleton, Inc., 43 AD3d 910).

The preclusion of an expert’s affirmation or affidavit submitted in the context of a motion for summary judgment based solely on a party’s failure to disclose the expert pursuant to [*8]CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not necessarily advance the court’s role of determining the existence of a triable issue of fact. In the context of a motion for summary judgment in a medical malpractice action, generally, a party must submit an affidavit or affirmation from an expert medical provider to meet its prima facie burden, or to raise a triable issue of fact in opposition (see Post v County of Suffolk, 80 AD3d 682, 685; Dunn v Khan, 62 AD3d 828, 829). Precluding an expert’s affidavit solely on the ground that the offering party did not disclose the expert’s identity pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness is not consistent with the purpose and procedural posture of a motion for summary judgment.

In the matter at bar, the Supreme Court providently exercised its discretion in considering the experts’ affirmations submitted by the moving defendants, and the additional affidavits submitted by Bliss, in support of their respective motions for summary judgment, despite the fact that they did not disclose those experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness.[FN8] "

Reading this case produces an image of a train rolling through the countryside, without anyone at the controls.  It is the story of a car accident, an unjoined party, and mistake after mistake.  In the end plaintiffs are non-suited and all the efforts are for naught.

Di Giacomo v Michael S. Langella, P.C.  2012 NY Slip Op 32658(U)  October 11, 2012
Supreme Court, Suffolk County  Docket Number: 08-7307  Judge: John J.J. Jones J

This action for legal malpractice was commenced to recover damages allegedly sustained by the
plaintiffs as the result of the failure of the defendants to properly present a motion to vacate the dismissal of the plaintiffs’ underlying action for personal injuries. On May 23, 2000, the plaintiff Lisa Di Giacomo Frangione (Di Giacomo) was involved in a motor vehicle accident. In May 2000, the plaintiffs retained Ira Levine, Esq. (Levine), to commence an action against Barbara Daniels (Daniels), the owner and operator of the other vehicle involved in the underlying accident. On September 18, 2003, the plaintiff executed a Consent to Change Attorney substituting Hankin, Handwerker & Mazel, PLLC (HHM) as her attorneys in place of Levine. Depositions in the personal injury action were conducted on or about April 2,2004, and Daniels testified that at the time of the accident she had been operating her vehicle in the course of her employment with Weight Watchers. After the underlying action (or Daniels action) had been placed on the trial calendar, HHM moved for leave to withdraw as counsel for the plaintiffs. By order of the Court dated May 15, 2006 (Molia, J.), the motion was granted, counsel was directed to serve a copy of the order on the plaintiffs on or before May 19, 2006, and the discharge was to be effective ten days after filing proof of service. In addition, the order set down July 12,2006 as the date for jury selection. When the plaintiffs failed to appear for jury selection on July 12,2006, the matter was adjourned until July 19, 2006. The record before this Court reveals that the plaintiffs again failed to appear on July 19,2006, and upon oral application made on the record by defense counsel in the underlying action, the action was dismissed with prejudice by the Honorable Denise F. Molia. On or about August 9,2006, the plaintiff retained the defendants to represent them in the underlying action. The defendants prepared and submitted an order to show cause dated August 10, 2006, seeking to vacate the plaintiffs default and to restore the case to the trial calendar. By order dated November 16, 2006, the Court (Molia, J.) denied the plaintiffs’ motion to vacate their default ."

"On February 20, 2008, the plaintiffs commenced this action for legal malpractice against Levine,
HHM, Stacy Rinaldi Guzman, Esq. (Guzman), and the defendants. Among the allegations set forth in the complaint is a claim that the failure to timely join Weight Watchers ( Daniel’s employer) as a party in the underlying action constituted malpractice. In addition, it is asserted that after HHM was relieved as plaintiffs’ counsel, the plaintiffs were represented by Guzman, who had agreed to appear on the plaintiffs’ behalf to obtain an adjournment of the July 12,2006 court date, but failed to do so. It is further alleged that the defendants failed to include an affidavit of merits with the motion to vacate the dismissal of the plaintiffs’ underlying action resulting in its denial, and the loss of the plaintiffs’ ability to recover damages for their injuries.In early 2008, Levine, HHM, Guzman and the defendants separately moved to dismiss the plaintiffs’ complaint on the grounds, among other things, that it failed to state a cause of action. By order dated October 30,2008, the undersigned granted the motions of Levine, HHM and the defendants, dismissing the complaint against them. By order entered on January 12, 2009, the undersigned granted Guzman’s motion, dismissing the complaint against her. After the plaintiffs’ appealed from the judgments entered pursuant to those orders, the Decision and Order of the Appellate Division, Second Department, dated September 14, 20 10, affirmed the dismissal of the complaints against Levine, HHM and Guzman, and reversed that branch of the order dismissing the complaint against the defendants. In a stipulation dated June 15, 20 1 1, the parties agreed to amend the caption to reflect the dismissals in favor of Levine, HHM and Guzman. Said stipulation was so ordered on July 13, 201 1, and filed with the Clerk of the Supreme Court on July 18,2011. Thereafter, the action proceeded against the  defendants and, after all discovery was completed, a compliance order dated September 7,201 1, directed the plaintiffs to file a note of issue on or before October 7, 201 1. The computerized  records maintained by the Court reflect that the plaintiffs filed a note of issue on October 28, 201 1, resulting in the caption set forth above.’

"At his deposition, the defendant Michael S. Langella (Langella) testified that he was retained by
the plaintiffs on or about August 9,2006, to attempt to vacate the dismissal of the underlying action, to restore the action to the trial calendar, and to litigate that action. He decided to move by order to show cause as quickly as possible to avoid a claim by Daniels that she was prejudiced in the interim. Langella indicated that he was aware of the legal standard required to vacate a default,  and that his affirmation and the affidavit of Di Giacomo, submitted in support of the order to show cause, established that the plaintiffs had meritorious causes of action against Daniels. He acknowledged that the order to show cause did not state how the accident happened, and that the court order denying the motion stated that it was denied because it did not contain any proof regarding the merits of the plaintiffs’ action against Daniels. Langella further testified that he was aware of the facts surrounding the dismissal of the Daniels action, and that the case had been on the trial calendar and adjourned a number of times. He indicated that he spoke with Levine by telephone to corroborate the plaintiffs’ claim that Di Giacomo had spoken with Guzman to obtain an adjournment of the July 12, 2006 court date, that he did not advise the plaintiffs that they had a legal malpractice claim against Levine, and that he did not receive the plaintiffs’ file from HHM until October 10, 2006. He stated that he handled a subsequent motion to reargue the denial of the order to show cause differently, attaching a doctor’s affirmation and Levine’s affirmation. Langella testified that the written retainer signed by the plaintiffs provides that he and his firm were going to represent them to collect compensation for their injuries in the car accident, and to sue any persons or entities that may be liable to them for damages under the law. He indicated that the  retainer stated that the plaintiffs would be responsible for the costs of any appeals, but that he did not charge them for the costs of the two appeals that he prosecuted on their behalf in the Daniels action. He stated that “based on the circumstances here, I believed that it was my obligation to undertake those costs and responsibilities.” He believed that Di Giacomo should have been compensated for the injuries that she suffered in the car accident. Langella further testified that the plaintiffs’ actions did not contribute lo the denial of the motion to vacate their default, that he was not aware of any third party that would be responsible for the plaintiffs’ damages during his representation of them, that he was not aware of any issues regarding privity of contract regarding the subject retainer, and that he is not claiming that he made any errors in judgment in representing the plaintiffs. He further stated that he had no knowledge that would indicate that the plaintiffs are not the real parties in interest in this action, and that he did not have any facts that would support a claim that this action is barred by the statute of limitations, or that the plaintiffs lack standing to bring this action."

Our meme is that legal malpractice is ubiquitous and may arise in almost any setting.  Here, in a medical malpractice case we see what could have been a nasty legal malpractice had the AD no intervened.  In Westchester, cases go the the Trial Assignment Part which has broad discretion in the scheduling of trials.  There is great tension in the scheduling of trials.  On the one hand, attorneys need to fully book their time in order to make a living.  On the other hand, there are at least two and often more law firms all booking cases (plaintiff and defense) and trying to make a living.  In order to try a case, one needs witnesses, and experts each have their own schedules, with vacations and professional responsibilities and other trials.  Its a challenge to get a case tried. Cases get dismissed when the process gets too hard, and parties are injured.  Legal mal often follows.

In Vera v Soohoo 2012 NY Slip Op 07104  Decided on October 24, 2012  Appellate Division, Second Department  we see how one effort came apart. 
"On January 4, 2010, David Pierguidi of The Pagan Law Firm, P.C., appeared on behalf of the plaintiff, and notified the Supreme Court that the plaintiff’s expert, who was of paramount importance to the plaintiff’s case, was unavailable to testify. Counsel provided the Supreme Court with an affidavit from the expert, in which he stated that he would be away on vacation from January 5 through January 13, and that the vacation could not be canceled. Counsel informed the Supreme Court that the parties had conferred and would all be available to try the case in the middle of February. The Supreme Court, after noting that the case was eight years old, offered to adjourn the matter until January 14. Counsel for Malhotra inquired as to how long the plaintiff’s case would last, noting that he had a case on January 25, in Rockland County, and a case in federal court scheduled for February 1. The plaintiff’s counsel responded that his case alone would take three days to try, and alerted the court that his firm had a conflict with another case that was being tried in Kings County. In response, the Supreme Court directed the law clerk to read the procedural history of the case into the record. While she was still doing so, the Supreme Court cut her off, stating, "that’s enough." Then, without further comment or questions about plaintiff’s counsel’s claimed scheduling conflict, the Supreme Court, sua sponte, dismissed the action pursuant to 22 NYCRR 202.27, stating "this is a fault [sic] dismissal." The court subsequently issued a written order indicating that the action was being dismissed for counsel’s failure to proceed to trial on January 4, 2010.

The plaintiff timely moved to vacate the order and restore the action to the action to the trial calendar. In the moving papers, the plaintiff’s counsel affirmed that the trial date offered by the Supreme Court, January 14, 2010, conflicted with a case entitled Bryan v Hurwitz that his firm was scheduled to try on January 19, 2010, and that Bryan v Hurwitz had a 1999 index number. In an order dated June 4, 2010, the Supreme Court denied the plaintiff’s motion, finding that, while she had a potentially meritorious cause of action, she had failed to provide a reasonable excuse for her inability to proceed on January 4, 2010, or January 14, 2010.

Under 22 NYCRR 202.27, a court may dismiss an action when a plaintiff is unprepared to proceed to trial at the call of the calendar (see Fink v Antell, 19 AD3d 215; Johnson v Brooklyn Hosp. Ctr., 295 AD2d 567, 569; Farley v Danaher Corp., 295 AD2d 559, 560). In order to be relieved of that default, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see e.g. Felsen v Stop & Shop Supermarket Co., LLC, 83 AD3d 656).

Here, the plaintiff’s proffered reason for being unable to proceed on January 4, 2010, was that her expert was unavailable to testify because of a scheduled vacation between January 5 and January 13, 2010, which the expert could not cancel. That excuse was a reasonable one (see Vorontsova v Priolo, 61 AD3d 556, 556-557; Conde v Williams, 6 AD3d 569, 570; Goichberg v Sotudeh, 187 AD2d 700, 701; cf. Kandel v Hoffman, 309 AD2d 904; Spodek v Lasser Stables, 89 AD2d 892). Indeed, the Supreme Court accepted that excuse, as evidenced by its offer during the colloquy on January 4 to adjourn the trial to January 14. In addition, in its order denying the plaintiff’s motion to vacate the default, the Supreme Court stated that it had been willing to adjourn the trial to accommodate the expert’s vacation, tacitly acknowledging that it had concluded that the excuse was reasonable. Nevertheless, it held in that order that the plaintiff’s action should be dismissed, in part, because the record was silent as to when the plaintiff’s counsel informed his expert of the trial date, when the expert scheduled his vacation, and when counsel learned of the expert’s vacation schedule. However, that claimed justification for dismissing the plaintiff’s action, which is adopted by the dissent, is not supported by the record since the Supreme Court never mentioned any of those enumerated deficiencies during the colloquy on January 4, 2010.
Even accepting the post hoc conclusion that the action was validly dismissed for the failure to proceed on January 14, a reasonable excuse for that failure was provided. The plaintiff’s counsel explained that his firm had another trial involving a medical malpractice claim scheduled in Kings County for January 19, 2010, that the case had been marked as final, and that it was older than this case. The plaintiff’s counsel noted that, in the instant action, the presentation of his case alone would take three days, and, thus, depending on the length of the case presented by the Hospital and Malhotra, there was the potential for a conflict between the Kings County case and this case. Thus, it is evident from the record that counsel was trying to avoid the "overbooking of cases" (Pichardo-Garcia v Josephine’s Spa Corp., 91 AD3d 413, 414 [internal quotation marks omitted]; see Perez v New York City Hous. Auth., 47 AD3d 505, 505). While we agree with the dissent that there was no actual conflict on January 14, the point is that there was the potential for conflict on January 19 when the two trials might overlap, and the plaintiff’s counsel was attempting to avoid creating a conflict for his firm. Moreover, contrary to our dissenting colleague’s assertion, counsel indicated that The Pagan Law Firm, P.C., consisted of only three lawyers, and that William Pagan was the only attorney from the firm qualified to try medical malpractice cases. The dissent characterizes this contention as "unsubstantiated and self-serving after-the-fact," since it was not made until counsel for the plaintiff submitted reply papers on the motion to vacate. However, this contention was made in response to arguments advanced by the Hospital and Malhotra, which is the proper function of reply papers (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678; Lebar Constr. Corp. v HRH Constr. Corp., 292 AD2d 506, 507). Therefore, under the circumstances of this case, we conclude that the plaintiff provided a reasonable excuse for the inability to proceed on January 4, 2010, and January 14, 2010 (see Mayo v New York Tel. Co., 175 AD2d 390, 391; see also Krivda v Liberty Lines Express, Inc., 27 AD3d 260, 261; cf. McKenna v Connors, 36 AD3d 1062, 1063).

We’ve noted in the past that legal malpractice cases sometimes have a history of legal malpractice within them. As an example, Moray v Koven & Krause, Esqs. 2010 NY Slip Op 07573 ; ;Court of Appeals ;Read, J. serves well. it involves a legal malpractice case levied against a former attorney who was involved in a real estate transaction gone bad. This case fared badly too, until Judge Read delivered the unanimous decision,
 

"On December 31, 2007, plaintiff Joseph Moray commenced this action for legal malpractice, breach of contract and professional negligence against defendant Koven & Krause, Esqs. by filing a summons with notice, which identified Warren Goodman, Esq. as plaintiff’s attorney. The summons with notice was apparently served on defendant on February 5, 2008.

On February 25, 2008, defendant served Goodman with a notice of appearance [*2]and a demand for a complaint. When the demand did not prompt a response, defendant on April 22, 2008 moved to dismiss the action pursuant to CPLR 3012 (b).

By letter dated May 6, 2008, attorney Preston Leschins informed defendant’s professional liability insurance carrier that his office had been "consulted" by plaintiff "in connection with" plaintiff’s claim "with a view towards substituting for" Goodman. The letter characterized Goodman as plaintiff’s "former counsel" who was "no longer practicing law." Leschins asked for "the opportunity to speak with" the carrier about "resolution [of the matter] in an amicable fashion," and at the carrier’s "earliest convenience." Plaintiff was copied on this letter.

On May 23, 2008 — the motion’s return date — defendant’s counsel had a conversation with Goodman, "who advised that he had been suspended from the practice of law months earlier"; at Goodman’s request, defendant’s counsel agreed to adjourn the motion to dismiss until June 13, 2008. Later that day, he spoke to Leschins, "who confirmed that he had consulted with plaintiff weeks earlier," but "refused to state whether he would be appearing as attorney for plaintiff" in the lawsuit.

On or near the adjourned return date, Goodman — indicating that he was mindful that his license had been "suspended on or about January 24, 2008" and was therefore "being careful not to practice law" — submitted a "factual" affidavit in opposition to the motion to dismiss. Styling himself as plaintiff’s "former attorney," Goodman stated that he had "advised [his] former client in writing of [his] situation and told him to get new counsel"; however, he did not say when he did this. Goodman further represented that he "[understood] that [plaintiff had] been diligently pursuing new counsel," but had "not yet retained a new attorney" and was "still continuing to look for a new lawyer."

"On appeal, plaintiff was represented by counsel. His new attorney invoked CPLR 321 (c), which mandates that"[i]f an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs."

On May 12, 2009, the Appellate Division affirmed Supreme Court’s order, concluding that the trial court "did not improvidently exercise its discretion in granting the defendant’s motion to dismiss the action" (62 AD3d 765, 765 [2d Dept 2009]). The court observed that because "plaintiff’s contention that the action was stayed pursuant to CPLR 321 (c) [was] raised for the first time on appeal," it "[was] not properly before [the Appellate Division]." We subsequently granted plaintiff permission to appeal, and now reverse.

The command of CPLR 321 (c) is straightforward: if an attorney becomes disabled, "no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs" (emphasis added). As the Practice Commentaries explain, CPLR 321 (c) brings about "an automatic stay of the action," which "goes into effect with respect to the party for whom the [disabled] attorney appeared" (Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR [*4]C321:3, at 183)[FN2]. As a result,

"[d]uring the stay imposed by CPLR 321 (c), no proceedings against the party will have any adverse effect. It lies within the power of the other side to bring the stay to an end by serving a notice on the affected party to appoint new counsel within 30 days . . . If, at the end of the period, the party has failed to obtain new counsel (or elected to proceed pro se), the proceedings may continue against the party" (id.).

The stay is meant to "afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action" (Hendry v Hilton, 283 App Div 168, 171 [2d Dept 1953] [discussing Civil Practice Act § 240, the predecessor statute to CPLR 321 (c)]).
This lawsuit was automatically stayed by operation of CPLR 321 (c) on January 24, 2008, the date when plaintiff’s attorney was suspended from the practice of law. Defendant never acted to lift the stay by serving a notice upon plaintiff to appoint new counsel within 30 days. Thus, Supreme Court’s order dismissing the action must be vacated (see e.g. Galletta v Siu-Mei Yip, 271 AD2d 486, 486 [2d Dept 2000] ["Since the judgment entered upon the defendants’ default in appearing at trial was obtained without the plaintiff’s compliance with CPLR 321 (c), it must be vacated"]; McGregor v McGregor, 212 AD2d 955, 956 [3d Dept 1995] ["The record reveals no compliance with the leave or notice requirements of CPLR 321 (c). The appropriate remedy for a violation of CPLR 321 (c) is vacatur of the judgment"]). "
 

Today’s New York Law Journal reports that attorney collections cases are up, and as many as 7 a week are being filed in New York County. As morning follows night, there will be a commensurate number of legal malpractice counterclaims. Christina Simmons writes:Suing clients for unpaid legal fees could become routine as firms are growing more assertive about collecting overdue bills.

  "Shari Klevens, a McKenna Long Aldridge partner in Washington, D.C., and Atlanta who represents malpractice insurers and firms sued for malpractice, said she believes the number of suits against clients is increasing because of the economic environment, where firms are less likely to let go of a large fee.

But she said she doesn’t recommend litigation as a first step."As soon as you say ‘you didn’t pay it,’ they say ‘well the work isn’t good,’" Klevens said.Malpractice claims are brought against firms in 42 percent to 47 percent of cases where the firm has sued for fees, Klevens said. Firms also face the risk of forfeiture or disgorgement if the client claims the legal services didn’t meet the appropriate standard, she said.The number of suits against former clients tends to increase at the end of the year when firms try to wrap up their collections, she said.

"Clients who are not paying are identified in the third quarter" and through the fourth, she said.""Suing clients for unpaid legal fees could become routine as firms are growing more assertive about collecting overdue bills."There was a time when a lot of firms would feel it was unseemly to bring an action against a client" regardless of the amount owed, said Martin Wasser, a partner at 75-lawyer Phillips Nizer. "I think that’s changed."

"Firms are more aggressive in following up with bills than they’ve ever been," said Wasser, whose firm is among the many that have filed suit to collect fees from former clients this year.The New York Law Journal reviewed law firm collection suits against former clients filed in the past two months in Manhattan Supreme Court. Each week, between three and seven such suits were filed during the period.Several attorneys said lawsuits are a last resort and that whether to sue a client is decided on a case-by-case basis depending on factors such as the amount owed, the length of the relationship and whether the client can afford to pay.

The fee suits were brought by large and small firms, and boutiques and solo attorneys who have pursued amounts ranging from a few thousand to hundreds of thousands of dollars or more.On one day in September, Epstein Becker & Green filed four complaints against former clients, seeking a collective $390,000. The legal services provided to clients ranged from litigation to loan and corporate advice and general legal work.Epstein Becker’s former clients included a T-shirt vendor owing $80,438; a cable company owing $53,335; a produce wholesaler with bills totaling $55,138; and four individuals owing a total $198, 946, according to the complaints.

Epstein Becker also has filed at least three other collection suits this year, those totaling about $176,070, according to court documents."We only file collection actions after very deliberate and careful consideration, and we do not file often. The filing of more than one case on the same day was simply the culmination of a lengthy review process coupled with post-summer scheduling," said Marichelli Hughes, a spokeswoman for Epstein Becker. 
 

The early days of the 20th century brought us the Robber barons, and the rise of corporations. The interconnectedness and remote nature of the relationships challenged the Courts, and led to a school of "better practice" business aspiration. Today, as long as a profit motive exists, there will be arrangements between persons which are created to mask the true nature of financial relationships. South Shore Neurologic Assoc., P.C. v Ruskin Moscou Faltischek, P.C. ; 2011 NY Slip Op 50801(U) ; ; Supreme Court, Suffolk County ; Pines, J. is a prime example. We urge you to read the facts to determine the relationship between the law firm and its numerous corporate clients. Here are the rules, put forth by Justice Pines, to determine whether there has been breach of fiduciary duty.
 

"In order to establish a claim for breach of fiduciary duty, a Plaintiff is required to demonstrate 1) the existence of a fiduciary relationship; 2) misconduct by the Defendant; and 3) damages directly caused by such conduct. Kurtzman v Bergstol, 40 AD3d 588, 835 NYS2d 644 ( 2d Dep’t 2007). Whether a fiduciary relationship exists between parties is necessarily fact specific. AG Capital Funding Partners, LP v State Street Bank and Trust Co, 11 NY3d 146, 866 NYS2d 578, 896 NE2d 91 (2008). An attorney stands in a fiduciary relationship to his or her client, Graubard Mollen Dannett & Horowitz v Moscovitz, 86 NY2d 112, 629 NYS2d 1009, 653 NE2d 1179 (1995), and is thus charged with a high degree of undivided loyalty to his or her client. Kelly v Greason, 23 NY2d 368, 296 NYS2d 937, 244 NE2d 456 [*5](1968). However, a violation of a disciplinary rule, without more, is insufficient to state an action for breach of fiduciary duty. Schwartz v Olshan Grundman Frome & Rozensweig, 302 AD2d 193, 753 NYS2d 482 (1st Dep’t 2003).

The statute of limitations for breach of fiduciary duty is dependent on the substantive remedy sought by the plaintiff. Thus, a six year statute applies, where equitable relief is sought; and a three year statute applies where the "injury to property" is the gravamen of the action. CPLR §§213(1), 214. The claim accrues, for statue of limitations purposes, when the fiduciary has repudiated his or her obligation. Westchester Religious Institute v Kamerman, 262 AD2d 131, 691 NYS2d 502 (1st Dep’t 1999). Westchester Religious Institute v Kamerman, 262 AD2d 131, 691 NYS2d 502 (1st Dep’t 1999). The doctrine of "continuous representation" tolls the running of this statute where the claim is brought against an attorney fiduciary but only so long as the defendant continued to represent the Plaintiff in connection with the transaction that is the subject of the action as opposed to general representation. Transport Workers Union of America Local 100 AFL-CIO v Schwartz, 32 AD3d 710, 821 NYS2d 53 (1st Dep’t 2006).

Under the Code of Professional Responsibility (now the Rules of Professional Conduct, 22 NYCRR 1200 et. seq.) a lawyer may not concurrently represent clients with adverse interests nor take on a new client whose interests are adverse to an existing client. Where an attorney represents multiple clients and a situation arises posing potential conflicts among them, the attorney may not undertake the representation of any of the clients unless continued involvement is with the full consent of all parties upon complete disclosure. Kelly v Greason, supra. Whether an attorney-client relationship exists depends on the actions of the parties, as there are no set of rigid rules as to what is required to form an attorney-client relationship. See, McLenithan v McLenithan, 273 AD2d 757, 710 NYS2d 674 (3d Dep’t 2000).

In an action for fraud, a plaintiff must demonstrate that the defendant misrepresented or omitted a material fact which was false and known to be false and made for the purpose of the other party to rely upon it, justifiable reliance by such party on the misrepresentation or material omission, and injury resulting therefrom. Ross v Louise Wise Services, 8 NY3d 478, 836 NYS2d 509, 868 NE2d 189 (2007); see, Graubard Mollen Dannett & Horowitz v Moscovitz, 86 NY2d 112, 629 NYS2d 1009, 653 NE2d 1179 (1995). In this vein, an attorney may be liable to non-clients for wrongful acts if guilty of fraud or collusion or of a malicious or tortious [*6]act. Koncelik v Abady, 179 AD2d 942, 578 NYS2d 717, Callahan v Callahan, 127 AD2d 298, 514 NYS2d 819 (3d Dep’t 1987). The statute of limitations for fraud is six years from the accrual of the claim or within two years from the actual or imputed discovery of the fraud. CPLR 213 (8), 203 (f); see, Trepuk v Frank, 44 NY2d 723, 405 NYS2d 452, 376 NE2d 924 (1978). As with the claim for breach of fiduciary duty, the continuous representation doctrine tolls the running of the statute of limitations against a professional defendant, but only so long as the defendant continues to represent the plaintiff in connection with the transaction and not merely the continuation of the general professional relationship. Transport Workers Union of America Local 100 AFL-CIO v Schwartz, supra. Punitive damages are not recoverable in the ordinary fraud case, but may be recovered where the fraudulent act is gross, involves high moral culpability and is aimed at the general public. Walker v Sheldon, 10 NY2d 401, 223 NYS2d 488, 179 NE2d 497 (1961).

Finally, one who owes a duty of fidelity or loyalty to another and is faithless in performance of such duty is generally disentitled to recover compensation for his services. Feiger v Iral Jewlry Ltd, 41 NY2d 928, 394 NYS2d 626, 363 NE2d 350 (1977). "