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

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

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

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

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

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

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

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

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

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

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

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

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

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

Except for that small class of errors which are apparent, open and obvious to a lay jury, an expert is needed for either side in a legal malpractice case.  As an example, and although the case does not describe the expert’s testimony, its apparent that defense needed this expert to win the case.  In SCG Architects v Smith, Buss & Jacobs, LLP   2012 NY Slip Op 07288  Decided on November 7, 2012  Appellate Division, Second Department  the AD decision leads off with:
 

"The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion to preclude the defendant’s expert from testifying due to inadequate expert disclosure pursuant to CPLR 3101(d). CPLR 3101(d)(1)(i) does not mandate that a party be precluded from proffering expert testimony merely because of noncompliance, " unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party’" (Browne v Smith, 65 AD3d 996, 997, quoting Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 711; see Aversa v Taubes, 194 AD2d 580, 582). Here, the defendant’s expert disclosure, although not detailed, was adequate under the circumstances, and the plaintiffs failed to show that they were prejudiced thereby (see Flores v New York Hosp.-Cornell Med. Ctr., 294 AD2d 263, 264). "

The rest of the appeal seems to have been more or less generic:  "The jury’s finding was based on a fair interpretation of the evidence, and thus was not against the weight of the evidence (see Nicastro v Park, 113 AD2d 129, 134-135).

The plaintiffs’ remaining contentions concerning the jury charge and certain comments made by the trial court are unpreserved for appellate review, and we decline to address them in the interest of justice (see CPLR 5501[a][4]; Schlecter v Abbondadello, 5 AD3d 582, 583)."
 

We’ve often written about privity and legal malpractice, and ran across this case illustrating the boundaries of privity in medical malpractice. The facts are ghastly, and the outcome, for plaintiff, is doubly hurtful.

In Fox v Marshall ; 2011 NY Slip Op 06214 ;  Appellate Division, Second Department ; Sgroi, J., J. the question is whether decedent’s husband may sue a physician alleged to have negligently treated a psychiatric patient.
 

"In this case we address the often muddled issue of whether a legally viable medical malpractice cause of action can be asserted against a physician by a third party even though no doctor-patient relationship ever existed between these parties. Under the circumstances of this case, we conclude that the law does not recognize such a cause of action.

This action has its genesis in a particularly brutal and unsettling crime, the murder of Denice Fox by her neighbor, the defendant Evan Marshall, on August 17, 2006. Denice Fox, a retired teacher, lived on Willada Lane in Glen Cove, Nassau County. Prior to 2005, Evan Marshall lived, intermittently, at the home of his mother, the defendant Jacqueline Marshall, which was located two doors away from the Fox home. At the time of the crime, Marshall was 31 years old, had a history of substance abuse and psychiatric problems, and had, between August and November 2005, been treated at 10 different drug abuse and mental health facilities.

Beginning in November 2005, Marshall resided at and was treated at the defendant SLS Residential, Inc. (hereinafter SLS), a substance abuse and mental health facility located in Brewster, New York. According to the agreements governing patients-clients treated at SLS, enrollment in the facility’s various programs was "voluntary." However, the agreements also stated that "a member" must give 30 days prior written notice of intention to "leave the program." There is no language in the agreements specifically governing a procedure whereby a member is permitted to temporarily leave the facility. The plaintiff alleges, however, that on August 16, 2006, the day before the murder, officials at SLS gave Marshall a "pass" to leave the facility for the ostensible reason of visiting his mother in Glen Cove. The plaintiff also alleges that Marshall was given the keys to his car and was permitted to leave the facility with $900 in cash, which he had earned from a part-time job while he was in treatment.
Upon arriving on Long Island, Marshall allegedly bought cocaine and then went to his mother’s house, where he apparently spent the night. On August 17, 2006, at approximately 8:30 A.M., Marshall allegedly drove his car onto a footpath in Glen Cove and intentionally struck a woman who had been jogging thereon. Later that morning, Marshall rang the doorbell at Denice Fox’s home and forced his way into the house. He then proceeded to murder Ms. Fox and dismember her body, which he then transported to his mother’s house. Ultimately, the crime was discovered and Marshall was arrested. He has since pleaded guilty to, inter alia, the crimes of murder in the first degree and burglary in the first degree.

The Supreme Court denied the motion [to dismiss] and cross motions holding, inter alia, that a mental health facility may owe a duty to protect the public from the actions of an outpatient where there is evidence that the facility has the ability to control the patient’s actions and has knowledge that the patient may be a danger to himself and others. The Supreme Court also found that the allegations, if proven, would establish that Jacqueline Marshall owed a duty of care to the decedent. We modify and conclude that the Supreme Court should have granted those branches of the motion and cross motions which were to dismiss the cause of action alleging medical malpractice, and [*3]should have granted Jacqueline Marshall’s separate cross motion to dismiss the complaint insofar as asserted against her. "

"In the case at bar, Marshall was not involuntarily confined to the SLS facility. Nonetheless, the SLS defendants and the SLS employees exercised a certain level of authority and control over Evan Marshall. Although the degree of such control is unclear at this stage of the case, the mere fact that Marshall appeared to need a facility-issued pass in order to visit his mother suggests that he was not completely free to leave the facility (cf. Purdy v Public Adm’r of the County of Westchester, 72 NY2d at 9 – "[the patient] could come and go as she pleased"). The record also discloses that the SLS defendants and the SLS employees were aware of Marshall’s severe psychological problems. Accordingly, accepting the facts as alleged in the complaint as true, and according "every possible favorable inference" to the plaintiff (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d at 87), the complaint herein sufficiently alleges a cause of action in negligence against the SLS defendants and the SLS employees (see Rivera v New York City Health and Hospitals Corporation, 191 F Supp 2d at 421; see also Williams v State of New York, 84 AD3d 412).

However, under the circumstances of this case, the absence of any doctor-patient relationship between the decedent and the SLS defendants or Stumacher precludes a cause of action based on medical malpractice. It has long been recognized that, as a general rule, the sine qua non of a medical malpractice claim is the existence of a doctor-patient relationship. Indeed, it is this relationship which gives rise to the duty imposed upon the doctor to properly treat his or her patient (see Bazakos v Lewis, 12 NY3d 631, 634; Payette v Rockefeller Univ., 220 AD2d 69, 72; Ellis v Peter, 211 AD2d 353; Heller v Peekskill Community Hosp., 198 AD2d 265; LoDico v Caputi, 129 AD2d 361, 363; see also Speigel v Goldfarb, 66 AD3d 873, 874). Therefore, a doctor’s "duty of care is ordinarily only one owed to his or her patient" (Purdy v Public Adm’r of the County of Westchester, 72 NY2d at 9), and correspondingly, the element of duty would normally be missing from a claim made against a doctor by one who is not that doctor’s patient. "
 

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."