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

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

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

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

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

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

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

In Simoni v Costigan   2012 NY Slip Op 07882   Decided on November 20, 2012   Appellate Division, First Department  plaintiff tries to get the ongoing personal injury action consolidated with a legal malpractice action.  Plaintiff fails.  We cannot tell why, from the decision, and the underlying Supreme Court decision is not available to us.  In general, however, Courts do not like to mix the real personal injury outcome  with the hypothetical outcome of what would have happened if the attorney did not make a mistake. 

Consider a case where a crucial piece of evidence is precluded.  The case is not dismissed, just damaged.  Plaintiff fires attorney and hires new attorney, who slogs on.  Plaintiff then says, if I’m missing a vital piece of evidence, I will be injured.  Why not have one jury decide both issues?

The Courts usually (in the first instance) say that this will be confusing to the Jury.  Here, in Simoni we see: "Although the personal injury actions and the legal malpractice action involve "a common question of law or fact" (CPLR 602[a]), consolidation could engender jury confusion and [*2]prejudice the defendants in the malpractice action (see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269, [1st Dept 2008]; Brown v Brooklyn Union Gas Co., 137 AD2d 479 [2nd Dept 1988]). "

In legal malpractice litigation there is always the "prior" or "defendant" attorney and usually a "successor" attorney.  What discovery may entail between them, and what portion of the successor’s file may be disclosed?  Ingram Yuzek Gainen Carroll & Bertolotti, LLP v
Coden   2012 NY Slip Op 32741(U)   October 23, 2012  Supreme Court, New York County  Docket Number: 105841/09  Judge: Paul Wooten discusses this issue, as well as non-party discovery rules.

"Before the Court is a motion by defendants to disqualify Lewis on the basis that it violated CPLR sections  3107 an 3120(b) with respect to issuance of subpoenas on non parties and  hereby improperly and covertly obtained privileged and/or confidential documents from
defendant’s previous counsel Marc Weingard, Esq. (Weingard) of Weinberg, Gross & Pergament,
LP in the underlying action.

Lewis maintains that after receiving the J. Coden Authorization, and before issuing any
subpoenas, it contacted Weingard on January 3, 2011 via telephone to discuss obtaining
documents pursuant to the J. Coden Authorization and to inquire about the costs and timing of
production (see Lewis Opposition 14). According to Lewis, Weingard said he would be
contacting Patrick McHugh (McHugh), counsel for The Canine Fence, Co. in the underlying
action to advise that he had been asked to release documents which were under seal. On or
about January 13, 201 1 McHugh sent an e mail to Ronald Alensten, Esq. (Alensten), a member
of plaintiff, regarding the document production issues relating to the J. Coden Authorization, in
which Lewis maintains he mistakenly objects to the production of the documents pursuant to a
subpoena as it would violate the Protective Order (Lewis Opposition  16, 17)

Defendants maintain that Lewis served the subject subpoenas on January 13, 2011 and
failed to notify defendants until February 3, 2011, thereby violating CPLR  3107 and 3120(b),
which require notice to all adverse parties when such discovery devices are served on
nonparties (Notice of Motion, Coden Affirmation 11, 12). The subpoenas requested
Weingard’s entire file which was to be provided to Lewis on February 28, 201 1 , and the
subpoena scheduled Weingard’s deposition for March 28, 201 1 at 1O:OO a.m. (id. at 13, 14).
On February 9, 201 1 , J. Coden advised Lewis by letter that Fido’s Fences and Coden was not
willing to waive the attorney client privilege with respect to the subpoenaed attorneys, and they
also object to production of any documentation containing such privileged information (see
Notice of Motion, exhibit D). Defendants contend that no communication of any kind occurred
between it and Lewis regarding the subpoenas after February 9, 201 1 , and that the document
production date and deposition dated passed without any documents or information from either
Weingard or Lewis. It was J. Coden’s alleged understanding that Tufariello’s motion to quash
the Lewis subpoena stayed discovery against all nonparties.

In such cases where attorneys are proceeding against a former client, “disqualification
has been directed on a showing of ‘reasonable probability of disclosure’ of confidential
information obtained in the prior representation” (Saftler v Government Empls. Ins. Co., 95
AD2d 54, 57 [1st Dept 1983), citing Greene v Greene, 47 NY2d 477, 453 [1979]). Generally, in
such cases, an attorney will be disqualified where the party seeking that relief meets his burden
by establishing a substantial relationship between the issues in the litigation and the subject
matter of the prior representation, or where counsel had access to confidential material
substantially related to the litigation (see Saftler, 95 AD2d at 57; see also District Counsel 37 v
Kiok, 71 AD2d 587 [1st Dept 1979). However, disqualification will not be granted “where there
is no substantial relationship or where the party seeking disqualification fails to identify any
the issues in the litigation and the subject specific confidential information imparted to the attorney” (Saftler, 95 AD2d at 57)."

Defendants’ motion to disqualify Lewis as plaintiff’s counsel is denied. Defendants
meet their burden of establishing that a substantial relationship exists between the issues in this
litigation and the subject matter of the prior representation, as defendants herein assert a
counterclaim of legal malpractice against plaintiff relating to plaintiff’s representation of
defendants in the underlying action. Moreover it is undisputed that Lewis had access to
confidential material during its inspection of documents provided by Weingard. However,
defendants have failed to identify any specific confidential material imparted to Lewis (see
Saftler, 95 AD2d at 57) and how defendants are prejudiced by the production (see Ferolifo, 949
NYS2d at 363). Additionally, defendants’ belief that all nonparty discovery was stayed when
Tufariello filed her motion to quash is not supported in the record by any Court order or
stipulation."

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]). "