Plaintiff sues attorneys for a divorce situation in which he alleges they represented both him and his wife, and lost about $1 million for him in the proceedings. His complaint, in Verdelis v Landsman ; 2011 NY Slip Op 32196(U);  Sup Ct, NY County; Docket Number: 651767/10; Judge: Judith J. Gische survives both a CPLR 3211(a)(1) and (a)(7) motion, yet is dismissed on the basis that it was brought 3 years + two weeks after the judgment of divorce was entered. The Court finds that the cause of action accrued on the date of entry of the judgment of divorce.

"Plaintiff claims that Defendants were retained to represent him in an uncontested divorce proceeding, Daphne Sirneon v. Konstanhos Verdelis, 30981 1/07, (the “Underlying Action”) involving his ex-wife, Daphne Simeon (“Sirneon”). Defendants deny the allegations and bring this pre-answer motion to dismiss the complaint based upon: (I) a defense founded on documentary evidence (CPLR 3 321 1 [a][l]), (2) the expiration of the statute of limitations (CPLR § 321 1 [a][5]),
and (3) failure to state a cause of action (CPLR 5 3211 [a][7]). Plaintiff opposes the
motion."

"Plaintiff alleges that in 2007, the defendants failed to inform him that they were not representing him. Specifically, Plaintiff claims that the Defendants improperly rendered legal advice to him and they did not advise him that there were adverse interests between him and his wife. Plaintiff claims that Simeon told him that the defendant’s fees were $5,476 and that he was to pay 1/2 of the fees by paying Simeon $2,738. Plaintiff further alleges that the Defendants protected Simeon to his disadvantage, and that they failed to advise him that he was entitled to equitable distribution of the marital assets that totaled approximately $2,000,000. Plaintiff also claims that they did not advise
him to seek outside counsel before he waived his right to approximately $1,000,000 in
distributable assets"

"Although the attorney-client relationship is contractual in nature, formality is not an essential element to its formation. Talanskv v. Schulman, 2 A.D.3d 355, 358 (1st Dept. 2003). An attorney-client relationship may exist where an attorney was involved in the drafting, preparation and execution of a separation agreement, even though the attorney did not negotiate its terms or provide advice to the plaintiff. Shanlev v Welch, 31 A.D.3d 1127 (2006); see also Leon v Martinez, 84 NY2d 83 (1 994) (plaintiffs pleaded enough to infer existence of attorney-client relationship where defendant attorneys had drafted agreement between their client and plaintiffs in which client agreed to pay portion of lawsuit proceeds to plaintiffs ). Allowing the complaint a liberal construction and taking into account the Plaintiffs submissions, Plaintiff has sufficiently pleaded a cause of action for legal malpractice."

"Defendant’s documentary evidence relied upon by defendants does not conclusively, taken in a light most favorable to the Plaintiff, eliminate the possibility that an attorney-client relationship existed between Plaintiff and Defendants. Therefore, the Motion to Dismiss pursuant to CPLR 5 321 l(a)(i) is denied."

"A cause of action for legal malpractice based upon a divorce proceeding accrues on the date the
Judgment of Divorce was actually entered. Zorn v. Gilbert, 8 N.Y.3d 933 (2007). See, McCoy, supra, at 205 (Holding that the plaintiff had a cause of action on the day the divorce judgment was filed with the County Clerk’s office and as a result, plaintiffs claim was time barred as she brought it more than three years later). Consequently, Plaintiffs argument that his claim accrued when he was mailed the Judgment of Divorce is rejected. Based on the foregoing, Plaintiff was required to commence his action for legal malpractice against the Defendants by October 5, 201 0. Since the instant action was not commenced until October 18, 201 0, by the filing of a Summons with Notice, it is untimely under the applicable statute of limitations period. Plaintiffs First Cause of Action, for Legal Malpractice must therefore be dismissed as time-barred pursuant to CPLR 3321 I (a)(5).

In DUSHYANT KURUWA and MONICA ARGUELLES, Plaintiffs, -v.- MILTON L. MEYERS, Defendant.;09 Civ. 4412 (GWG);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ;2011 U.S. Dist. LEXIS 122466; October 21, 2011, we a most unusual case of successful pro-se litigants. Even more so, the Court granted punitive damages agaisnt the attorney. In the opening paragraphs, we may see the reason.
 

"On April 12, 2011, after the Court denied both parties’ motions for summary judgment, see Order, filed Mar. 2, 2011 (Docket # 40), the Court ordered the parties to submit a proposed joint pretrial order by May 6, 2011. Order, filed Apr. 12, 2011 (Docket # 43). The Court directed Meyers to supply his portion of the pre-trial order materials to plaintiffs by April 22, [*2] 2011. See id. ¶ 2. At Meyers’ request, this deadline was extended to April 27, 2011. Memorandum Order, filed Apr. 25, 2011 (Docket # 44). Meyers did not comply with this deadline but instead wrote a letter after the deadline seeking an extension sine die for medical reasons, which was granted. See Memorandum Order, filed May 6, 2011 (Docket # 47). By Order dated May 24, 2011, the Court gave Meyers an extension until June 15 to submit his pre trial order materials to plaintiffs. See Order, filed May 25, 2011 (Docket # 48). The Court extended this deadline to June 22. See Order, filed June 15, 2011 (Docket # 49). Meyers failed to meet this deadline, however, and has never asked that it be extended.

When the June 22 deadline was not met, the Court issued an Order to Show Cause directing Meyers to show cause why he should not be sanctioned for his failure to supply his portion of the joint pre-trial order materials. See Order, filed June 29, 2011 (Docket # 50). Not only did Meyers fail to provide a reason to the Court as to why he should not be sanctioned, he failed to respond to the Order to Show Cause at all. Accordingly, the Court issued an order finding Meyers in default as a sanction [*3] pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vi). See Order, filed July 14, 2011 (Docket # 51)"

"Meyers is an attorney with an office in New York, NY. Compl. ¶ 4. Kuruwa is a citizen of India and his wife, Arguelles, is a citizen of Mexico. Id. ¶¶ 2,3. In August 2007, Kuruwa was hired "as a Project Engineer by the Turner Corporation." Id. ¶ 8. At the time he was hired, Kuruwa had an H1-B visa which authorized him to work in the United States. Id. ¶ 10. Kuruwa had obtained the H1-B visa in or around 1999 and it was set to expire on July 28, 2008. Id. ¶¶ 10-11. As the dependent of an H1-B visa recipient, Arguelles had an H-4 visa. Id. ¶ 17.

In September 2007, Kuruwa agreed that Meyers would process his visa paperwork to extend his stay past July 28, 2008. Id. ¶ 12. Meyers was aware that Kuruwa’s visa expired in 2008 and that he needed to act quickly. See Email from M. Meyers to R. Vigilante, dated Aug. 21, 2007 (annexed as Ex. 16 to Pl. Aff.). Kuruwa’s employer, Turner Corporation, agreed to sponsor Kuruwa for a green card application. Compl. ¶ 20. Meyers agreed to submit the green card application [*8] for Kuruwa. Id. ¶ 21. Meyers claimed to have filed the green card application, see id. ¶ 23; id. Ex. A, but in fact did not do so, id. ¶ 24. Nor did Meyers file for an extension of the H1-B visa before it expired. Id. ¶ 25. Kuruwa did not learn that his paperwork was not completed until March 7, 2009, when he was notified by the Department of Homeland Security that a petition to extend his B-2 status had been denied. Id. ¶ 26. Kuruwa also learned that someone, without his authorization, had filed a petition to change his status to "B1/B2 – business or tourist." Id. ¶ 27, 29.

Kuruwa and Arguelles departed from the United States in July 2009, though they later returned. The record on this motion does not explain how they returned or what their current immigration status is. The Court notes that they appeared at a court conference seeking to relieve their attorney on October 1, 2010."

"Meyers does not dispute the amount that Kuruwa asserts constitutes one-year’s salary at Turner Corporation.3 Instead, he argues that Kuruwa had a duty to mitigate his damages. Def. Aff. ¶ 4. Meyers is correct that under New York law a "harmed [*11] plaintiff must mitigate damages." Air Et Chaleur, S.A. v. Janeway, 757 F.2d 489, 494 (2d Cir. 1985) (citations omitted); accord Wilmot v. State, 32 N.Y.2d 164, 168 (1973) ("[T]he party seeking damages is under the duty to make a reasonable effort to avoid consequences of the act complained of.") (internal quotations and citations omitted). However, the burden is on the defendant to introduce "evidence to prove that plaintiffs could have lessened their damages." Air Et Chaleur, S.A., 757 F.2d at 494 (citation omitted). A defendant must show that the plaintiff failed to mitigate, and that reasonable efforts "would have reduced the damages." Tatar v. Elite Gold, Inc., 2002 WL 31682391, at * 2 (S.D.N.Y. Nov. 26, 2002) (citations omitted); accord Coastal Power Int’l Ltd. v. Transcont’l Capital Corp., 10 F. Supp. 2d 345, 370 (S.D.N.Y. 1998) (citations omitted).

FOOTNOTES

3 Kuruwa seeks $109,227 as one year’s salary. See Pl. Aff. at 9; Ex. 8A, 8B. While the total amount supported by the documentary evidence Kuruwa provides — including a promised bonus, a 15% locality adjustment, and a July 1, 2008 merit increase — would seem to support a slightly greater annual salary, we will accept Kuruwa’s figure.

Despite [*12] having the burden to show the failure to mitigate, Meyers has provided no evidence on this point. He merely states his own belief — the foundation of which is not revealed — that "while markets and construction were depressed here that apparently was not the case in India." Def. Aff. ¶ 4. This vague and unsupported statement is insufficient to show that Kuruwa failed to mitigate damages. Accordingly, Kuruwa is entitled to damages of $109,227, or one year’s salary, as Kuruwa requests. See Pl. Aff. at 9; Ex. 8A, 8B.

In addition, Meyers’ failure to inform plaintiffs that their visas had expired led them to incur costs in arranging for a voluntary departure from the United States. See Pl. Aff. at 13. In order to avoid being subject to a mandatory ten-year ineligibility period, see 8 U.S.C. § 1182(a)(9)(B)(i)(I), plaintiffs voluntarily departed the United States on July 18, 2009. Pl. Aff. at 13, Ex. 11D. As it was Meyers’ failure to file the necessary paperwork and inform plaintiffs of their illegal status that led to their voluntary departure, Kuruwa is entitled to the expenses related to arranging for and effectuating the voluntary departure, or $6,808. See Pl. Aff. 13; Ex. 11A-G."

"Punitive damages are available where the plaintiff demonstrates "conduct that was directed to the [*17] general public or that evinced the requisite ‘high degree of moral turpitude’ or ‘wanton dishonesty.’" Williams v. Coppola, 23 A.D.3d 1012, 1013 (4th Dep’t 2005) leave dismissed 7 N.Y.3d 741 (2006) (quoting Walker v. Sheldon, 10 N.Y.2d 401, 405 (1961)). The Court believes the standard of "wanton dishonesty" has been met in that it is alleged that Meyers was dishonest in asserting that he had filed a green card application on Kuruwa’s behalf. Accordingly, the Court in its discretion awards $25,000 in punitive damages to Kuruwa and $5,000 in punitive damages to Arguelles."

Plaintiff’s husband was the victim of a really serious act of medical malpractice and hired defendant Buttafuoco to handle the case.  he was successful, and settled the case for $ 3.7 million.  What followed is a morass of claims, counterclaims and accusations.

Husband needed a guardian, and Wife was appointed.  In Urias v Daniel P. Buttafuoco & Assoc., PLLC  2012 NY Slip Op 32792(U)  November 14, 2012  Supreme Court, Suffolk County
Docket Number: 11-7186  Judge: Daniel Martin we see that  Buttafuoco app led for court approval of his fee, and obtained it.  The question is, does one apply the Med mal fee structure to the entire amount of recovery and then apportion to the various defendants, or does one apply the Med Mal fee structure individually to each defendant’s settlement amount.  Choice between  these two methods yields a huge difference in the fee of almost $ 200,000.

"It is undisputed that Buttafuoco represented the plaintiff in prosecuting an underlying medical
malpractice action in Suffolk County Supreme Court for injuries to her husband, Manuel Urias. The
subject retainer agreement provided that Buttafuoco’s legal fees would be calculated pursuant to
Judiciary Law 474-a (2) and (4). Due to her husband’s physical condition, Buttafuoco successfully made application to the Supreme Court Nassau County (Guardianship Court) to have the plaintiff appointed as the guardian for her husband. The order and judgment of the Guardianship Court required the plaintiff to seek the approval of said court regarding the settlement and award of legal fees in the medical malpractice action. The malpractice action was settled in open court, with the plaintiff present, on April 2. 2009 in the sum of $3,700,000. In May 2009, the plaintiff retained Newman in place of Buttafuoco to seek the necessary approvals from the Guardianship Court. On July 20. 2009, counsel for the parties in the medical malpractice action appeared before the Hon. Paul J. Baisley to obtain a change in the settlement terms of that action not relevant herein. At that appearance, Buttafuocco submitted an exhibit (Exhibit 3 ) setting forth his calculation of the legal fees due to his firm by applying the statutory sliding scale of Judiciary Law 474-a (2) against the settlement amounts attributable to the four defendants in the medical malpractice action, and he indicated that “we followed the schedule.” On or about September 29.2009, Newman moved by order to show cause seeking. among other things. the necessary approvals from the Guardianship Court. By order dated October 27, 2009, the Guardianship Court (Phelan, J.) approved the transfer of assets from the plaintiffs husband to her pursuant to Mental Hygiene Law $8 1.2 1. and denied approval of the settlement of the medical malpractice action and the legal fees due “without prejudice to renewal after the Supreme Court, Suffolk County, has had an opportunity to revisit
the legal fees.” Said order noted that “There were several defendants, and the total sum was allocated among the various defendants. Section 474-a of the Judiciary Law was used to calculate the legal fees based upon each individual defendant’s settlement amount, which resulted in a greater legal fee than if the calculations had been based upon the total sum recovered.” On or about November 9,2009, Newman moved the Supreme Court, Suffolk County for an order “confirming the amount of legal fees awarded to Plaintiffs counsel and the manner in which such legal fees were calculated …” By order dated March 24, 2010, the Court (Baisley, J.) confirmed “the amount of the legal fees awarded to plaintiffs counsel and the manner in which such legal fees were calculated …” On or about May 20, 201 0, Newman moved the Guardianship Court for an order approving the settlement of the malpractice action, “including the amount of legal fees awarded to Plaintiffs counsel and the manner in which such legal fees were calculated …” By order dated June 7,2010, the Guardianship Court (Phelan, J.) granted said motion citing the findings of the Hon. Paul J. Baisley, Jr. that “the legal fees approved by the court comport with the language and mandates of the statute .. .” In her complaint, the plaintiff alleges that, at the July 20, 2009 appearance, Buttafuoco misrepresented to the court that he was following the schedule set forth in Judiciary Law 474-a (2), and that the legal fees set forth in Exhibit 3 likewise were in accordance with that schedule. The plaintiff further alleges that Buttafuoco “intentionally materially misrepresented” to her that his legal fees and expenses as set forth in Exhibit 3 were in accordance with their written retainer agreement. that Buttafuoco illegally and improperly took the sum of $710,000 as a legal fee instead of the “lawful and proper legal fee in the amount of $5 16,226.40,” and that Buttafuoco deceived the plaintiff by using the Court’s approval of his legal fees in the amount of $864,552.37 to make her think that his taking a lee of only $71 0.000 benefit ted her and her husband. In addition, the plaintiff alleges that Buttafuoco disburscd a check payable directly to her husband prior to Newnian’s application to the Guardianship Court for an order permitting the transfer of all of his assets to her, which made her husband ineligible for Medicaid benefits from the Nassau County Department of Social Services, and resulted in an additional lien against the settlement proceeds in the medical malpractice action.

Here, a review of the complaint reveals that the plaintiff has plead a cognizable cause of action
for legal malpractice. In her complaint, the plaintiff alleges that Buttafuoco disbursed a check payable directly to her husband prior to Newman’s application to the Guardianship Court for an order permitting the transfer of all of his assets to her, which made her husband ineligible for Medicaid benefits from the Nassau County Department of Social Services, and resulted in an additional lien against the settlement proceeds in the medical malpractice action. Accordingly, that branch of the defendant’s motion which seeks to dismiss the plaintiffs Sixth Cause of Action for legal malpractice pursuant to CPLR 321 1 (a.) (7) is denied."

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. "