Experts (we might as well call then wizards) are an essential part of litigation, and in legal malpractice litigation they are everywhere.  What are the rules, what are the uses, and when are they essential?  In answer to these questions, we’re excited to share an Outside Counsel column from today’s New York Law Journal, entitled Experts in Legal Malpractice Litigation.

Cases in Landlord-Tenant court often have sad back-stories, and even sadder endings. InAlves v 152-154 W. 131st St. Holding Co., Inc. ;2011 NY Slip Op 32328(U) ;August 25, 2011
Supreme Court, New York ounty ;Docket Number: 116783/10 ;Judge: Donna M. Mills we see only the begining of a tale so complex, that it does not bear repeating.

"In her affidavit, plaintiff states that she was originally represented by an attorney, Romeo Salta (Salta), who filed the initial complaint, which allegedly contained errors and was incorrectly served upon the parties. Salta was thereafter relieved by this court on March 18, 20 11. Plaintiff is representing herself, and wishes to continue in that status. Plaintiff elaborates that the original complaint was vague in its language. In addition, she claims that Salta failed to sue defendant William T. Hurley (Hurley) both personally and as the President of the Board of Directors of the co-op, and did not serve him. She contends that the amended complaint would not prejudice defendants at this early stage of the action. A copy of the proposed amended complaint is submitted. This complaint contains fourteen causes of action. The first cause of action is brought against the landlord and Hurley, in his dual capacities, for malicious prosecution and/or abuse of process. The second cause of action is brought against the landlord and Hurley as president of the Board of Directors, for violation of Section 223-b of the Real Property Law, The third cause of action is brought against Hurley, in his dual capacities, for harassment. The fourth cause of action is brought against the landlord for respondeat superior. The fifth cause of action is brought against defendant Michael Schwartz (Schwartz), the landlord’s attorney, for negligence. The sixth cause of action is brought against defendant Barry Malin & Associates, P.C. (Malin), Schwartz’s employer, for respondeat superior. The seventh cause of action is brought against Malin, Schwartz, the
landlord and Hurley, in his dual capacities, for intentional infliction of emotional distress. The
eighth cause of action is brought against defendants Adam L. Bailey (Bailey) and Steven Decastro (Decastro), former attorneys of plaintiff, for negligence. The ninth cause of action is brought against defendants Bailey and Decastro for breach of fiduciary duty. The tenth cause of action is brought against Bailey, Decastro and defendant Gregory Calabro (Calabro), a former attorney of plaintiff, for breach of contract. The eleventh cause of action is brought against Calabro for breach of fiduciary duty:The twelfth cause of action is brought against Calabro for fraud andor negligence. The thirteenth cause of action is brought against Calabro for conversion. The fourteenth cause of action is brought against Bailey, Decastro and Calabr based on a fee dispute.

Opposition to this motion is brought by Bailey, Calabro, the landlord and Hurley. Bailey argues that this motion must be denied because it lacks colorable merit. He claims that he did not represent plaintiff in his personal capacity but that his firm was retained by her. According to him, the retainer checks she sent to that firm were not made out to him, but to the professional corporation, “Adam Leitman Bailey, P.C.”

Moreover, he states that there are no grounds for negligence or breach of contract due to the fact that she did not lose the Civil Court suit. He avers that the timeliness of the suit was not due to any actions taken by his firm. The fee dispute concerns a demand for a refund of money to which Bailey claims his firm was entitled. Calabro opposes the motion on the ground that there is no merit to the breach of fiduciary duty claim, since, through his efforts, plaintiff was relieved from the Civil Court suit, and he, not plaintiff, was entitled to attorney’s fees in that case. The landlord and Hurley oppose the motion, arguing that, as well as lacking in merit, plaintiffs amended complaint was improperly served on them. They acknowledge that tlus court, by Order dated March 18,201 1, granted plaintiffs former counsel’s motion to withdraw as plaintiffs counsel, and directed him to serve notice to plaintiff directing her to appoint a “substitute attorney” within 60 days. This Order prevented them, and other defendants, from taking any further proceedings against plaintiff without leave of court for a period of 90 days after entry of this Order, which allegedly expire on July 6,201 1. The landlord and Hurley request that the court prevent plaintiff from filing or serving the proposed amended complaint until after the expiration date of the stay.
In reply, plaintiff states that she is suing Bailey in his capacity as the owner of his law firm. She asserts that the claim of malpractice against him is valid and that he did not give her a retainer. She argues that Calabro was not entitled to all legal fees and that he initiated a Civil Court suit against her .to recover other1 unearned fees. She claims that she was not present or represented at the proceeding. That suit is allegedly stayed by court order.Plaintiff contends that the claims against the landlord and Hurley are valid as these defendants brought a holdover proceeding based on false grounds and as a vehicle for abuse and harassment, that was finally dismissed after three years of litigation. She opposes their request to delay her motion as pointless, since the order was allegedly meant to protect her temporarily from further actions brought by defendants. She defends her decision to sue Hurley in a dual capacity,due to the nature of his alleged misconduct
 

We’ve asked in the past whether there is an institutional bias against legal malpractice cases.  Self-regulation of industries ( the LIBOR, for example) often lacks any rigor.  The legal world also, in a way, self regulates.  It is after all, rules for attorneys, written by attorneys, administered and judged by attorneys.  In Wiener v Epstein  2012 NY Slip Op 22277   Decided on September 26, 2012   Appellate Term, First Department  we see the Appellate Term reversing Civil Court on a summary judgment dismissal.  Was Civil Court too ready to decide the underlying "but for" issues?
 

"Plaintiffs’ legal malpractice claim is not ripe for summary dismissal, since the defendant law firm failed in its burden to demonstrate the absence of a triable issue as to whether plaintiffs would have prevailed to some extent in the underlying action but for defendant’s alleged malpractice (see Cruz v Durst Law Firm, 273 AD2d 120 [2000]), i.e., failing in the underlying action to identify and timely serve a notice of claim upon the Hudson River Park Trust ("Trust"), the record owner of the bicycle path on which the first-named plaintiff was injured.

Giving plaintiffs the benefit of every favorable inference (see Ortega v Everest Realty LLC, 84 AD3d 542, 545 [2011]), the record contains circumstantial evidence sufficient to permit a fact-finder to determine that the condition which allegedly caused the first-named plaintiff to fall from his bicycle – described as a six foot by three foot patch of a "glass bead-like material used in the painting of bike ways … to provide better visibility" – was created by a contractor retained by the Trust (see Schneider v King’s Highway Hosp. Ctr., 67 NY2d 743, 744-745 [1986]; Chimilio-Ramos v Banguera, 62 AD3d 538 [2009]; Carboy v. Cauldwell-Wingate Co., Inc. 43 AD3d 261, 262-263 [2007]; Berner v 2061 A Bartow Food Corp., 279 AD2d 275 [2001]), for which the Trust may have been held vicariously liable, if properly sued in the underlying action, based upon its nondelegable duty as the owner of the public bicycle path (see Sarisohn v 341 Commack Rd., Inc., 89 AD3d 1007, 1008 [2011]; Hill v Fence Man, Inc., 78 AD3d 1002, 1004 [2010]; Correa v City of New York, 66 AD3d 573, 574-575 [2009]). Thus, the lack of prior notice to the Trust of the hazard was not dispositive of the Trust’s potential liability (see Jabbour v Finnegan’s Moving & Warehouse Corp., 299 AD2d 192 [2002]; Katz v City of [*2]New York, 231 AD2d 448 [1996]).

Defendant’s summary judgment evidence failed to conclusively establish that a contractor retained by the Trust did not cause or create the pathway condition that allegedly caused the first-named plaintiff’s injuries. The deposition testimony of the Department of Transportation ("DOT") employee (Patel) did not serve to absolve the Trust of potential liability, since Patel testified that "it is possible" that the Trust could have contracted for the repair or painting of the bike path without DOT’s knowledge.

The record so far developed raises triable issues as to whether plaintiffs would have prevailed in the underlying personal injury litigation "but for" defendant’s negligence (cf. Wo Yee Hing Realty Corp. v Stern, ___ AD3d ___, 2012 NY Slip Op 05792 [1st Dept 2012]). "

Legal Malpractice cases arise everywhere, and in so many circumstances,  In Manus v Flamm , 2011 NY Slip Op 31691(U); Supreme Court, New York County; Docket Number: 110026/2007; Judge: Debra A. James tells an interesting story of divorce, legal malpractice and itinerant jewelery. Plaintiff is the divorced wife, who is owed $ 1 million in the divorce. She borrows jewelery from the husband’s safe deposit and ends up in a world of trouble.

"In the FM action, FM initially sought to recover- possession of certain jewelry that, it alleges, Manus pledged as collateral against a $400,000 loan made by FM to her in 1994. FM alleges t h a t , after retrieving the jewelry from a jeweler to whom Manus had consigned it for sale, Manus failed to return it: to a safe deposit box maintained by her ex-husband, nonparty Allen Manus (deceased, November 2 0 0 3 ) , a founder of FM, in breach of the terms of the May 4, 1994 loan security agreement, as amended May 5, 1994. On September 28, 1999, Manus entered into a stipulation with FM, prepared by FM’s counsel and signed by Elizabeth Manus, Allen Manus’s wife and FM’s sole officer. Pursuant to the stipulation, Manus was authorized to retain the jewelry f o r nine months in order to sell it, and repay the $400,000 loan. The stipulation also provides that Manus’s cooperative apartment shares would be substituted for the jewelry as collateral under- a September 1999 stock pledge agreement . The ,st.stock:k pledge agreement identifies
Flamm as the escrow agent holding the stock certificates. Manus denies that she ever received $400,000 from FM, and contends that, therefore, the June 15, 1994 promissory note in
that amount bearing her signature is not enforceable.

With respect to the stipulation, Manus alleges that she signed it at Flamm’ s insistence, and that Flamm refused to explain the terms, and their ramifications, to h e r . Flamm ‘ alleges that Manus signed solely at Allen Manus’s urging, and without Flamm’a advice. Manus and Flamm both allege that Allen Manus agreed to arrange for FM to release Manus from the stipulation. Manus alleges that Allen Manus advised her to have her attorney, Flamm, contact FMIs attorneys to obtain.ain the
release. In November 2000, Flamm prepared a release and forwarded it to FM’s attorneys. Flamm alleges that , during the ensuing negotiations regarding the release terms, FM’s attorneys refused to permit FM t.o release Manus from liability because Allen Manus owed t h e m attorneys’ fees. Flamm further alleges that Elizabeth Manus refused to sign any document,t releasing Manus from liability, and that he was advised that she was the only individual with the authority to bind FM to the release.

Flamm’s own admissions regarding the underlying facts alleged in the complaint and the documentary evidence conclusively demonstrate that Flamm continuously represented
Manus with regard t o the FM action from October 1998 through January 2005."
 

In an otherwise garden or varietal attorney fee dispute with a legal malpractice defense, we ran across the "French Person" defense to attorney fees for the first time. Justice Gische, in Singer v Adler ;  2010 NY Slip Op 33439(U);  Sup Ct, NY County gave it short shrift.

"This action is based upon claims for legal services rendered by plaintiff, Stephen Sayre Singer, to defendant, Joel A. Adler. Adler brings a pre-answer motion to dismiss the verified complaint against him on the basis that it is barred by the statute of limitations and alternatively, he is a “French person” and a New York Court does not have personal jurisdiction over him, pursuant to Article 14 of the Civil Code of the Republic of France. Both parties are attorneys at law and each is self represented in this action."

"Defendant generally claims there is no personal jurisdiction over him because he is a “French person.” Whether this argument pertains to long arm jurisdiction or service of process, it fails.
CPLR 5 302 provides that a court may assert jurisdiction over a non-domiciliary when the non-domiciliary “transacts any business within the state” and the cause of action arises out of that business. See CPLR 302 (a)(l). In order to have personal jurisdiction over a defendant, it is essential that the suit against the non-domiciliary have some “articulable nexus” to the business transacted. See McGowan v, Smith, 52 NY2d 268, 272 (1981). The basis of plaintiffs complaint, premised on plaintiffs performance of legal services for defendant, and the non-payment of legal fees, while defendant was domiciled in New York, amounts to “transaction of business within the state” and has an “articulable nexus” to the business transacted, specifically the provision of legal
services. Therefore, personal jurisdiction over defendant is proper. "
 

Client retains Attorney 1 who is said to commit legal malpractice, and then retains Attorney 2 to try to help fix the problem, and later, to sue Attorney 1.  What communications between client and Attorney 2 are privileged.  in Roberts v Corwin   2012 NY Slip Op 32403(U)   September 10, 2012
Supreme Court, New York County   Docket Number: 115370-2009   Judge: Marcy S. Friedman  we see an interesting analysis.  "The attorney-client privilege is waived “where a party affirmatively places the subject  matter of its own privileged communication at issue in litigation, so that invasion of the privilege is required to determine the validity of the party’s claim or defense, and application of the privilege would deprive the opposing party of vital information.” (Veras Invs. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 373 [lst Dept 20081.) “[That a privileged communication contains information relevant to issues the parties are litigating does not, without more, place the contents of the privileged communication itself ‘at issue’ in the lawsuit; if that were the case, a privilege would have little effect. . . . Rather, ‘at issue’ waiver occurs when the party has asserted a claim or defense that he intends to prove by the use of privileged materials.” (Deutsche Bank Trust Co. of Americas v Tri-Links Inv. Trust, 43 AD3d 56,64 [lst Dept 20071 [internal quotation marks and citations omitted].)"

"It is well settled that “an attorney-client relationship is established where there is an  explicit undertaking to perform a specific task. While the existence of the relationship is not dependent upon the payment of a fee or an explicit agreement, a party cannot create the relationship based on his or her own beliefs or actions.” (Pellegrino v Oppenheimer & Co., 49 AD3d 94,99 1st Dept 20081; Jane St. Co. v. Rosenberg & Estes. P.C., 192 AD2d 451 [lst Dept.], Iv denied 82 NY2d 654 [1993].) An attorney-client relationship may thus exist prior to execution of a formal retainer. Indeed, an attorney-client relationship “can encompass a preliminary consultation even where the prospective client does not ultimately retain the attorney.” (Pellegrino, 49 AD3d at 99.)

Under these circumstances, in which plaintiff retained Epstein Becker to correct Greenberg Traurig’s malpractice and thereby to attempt to avoid a malpractice action, the court cannot find that preliminary consultations, in which malpractice may have been discussed, were undertaken “with a view toward retention” of Epstein Becker for malpractice litigation. (See generally Pellegrino, 49 AD3d at 99.) The court finds, however, that the documentary evidence, including that reviewed b
camera, shows that plaintiff began to consider a malpractice action in earnest after plaintiffs
motion to vacate the unfavorable award was denied by order of this Court (Moskowitz, J.), dated
April 3, 2007. It is undisputed that Mr. Roberts circulated a conflicts check at Epstein Becker,
dated May 30,2007, with himself as the client, and sought to have a client-matter number assigned. (July 5, 2012 ’Tr. at 13-14; P.’s Privilege Log [Ex. I, to Reardon Aff.].) As plaintiff acknowledges, these events coincide with Epstein Becker having “switched” from giving advice
consistent with the continuing arbitration to “direct strategic advice about what to do about a
malpractice claim.” (&July 5,2012 Tr. at 13-14.)"

A potential client comes to the legal malpractice practitioner and says that a good medical malpractice case was lost at trial because of errors by their attorney. They tell you that their expert was precluded, and that the case was lost against all defendants. What’s more, the defendants were permitted to ask hypothetical questions that were not proper. What can you do for me?

In many situations, the facts recited are true, and yet may not be actionable. As an example,in Banister v Marquis ; 2011 NY Slip Op 06544; Appellate Division, Second Department we see the following:
 

"Contrary to the plaintiffs’ contention, the trial court providently exercised its discretion in precluding them from calling an expert radiologist to testify. The proffered explanation for failing to identify this witness until after the trial began was not based on good cause (see CPLR 3101[d][1][i]; Lucian v Schwartz, 55 AD3d 687, 688; Caccioppoli v City of New York, 50 AD3d 1079, 1080). [*2]"

"The trial court should have prohibited counsel for the defendant Belinda Marquis from questioning an expert witness for the plaintiffs about a hypothetical pertaining to the probability of the infant plaintiff having both a pectus carinatum and fibromastosis, as the hypothetical was not based on facts supported by the evidence, nor from facts fairly inferable from the evidence (see Gilleo v Horton Mem. Hosp., 196 AD2d 569, 570). However, the error was harmless (see CPLR 2002; Kropf v New York Hosp., 212 AD2d 761). The trial court’s comments about the hypothetical did not deprive the plaintiffs of a fair trial (see Figueroa v Maternity Infant Care Family Planning Project, Med. & Health Research Assn. of N.Y. City, 243 AD2d 424).

Will preclusion of the expert survive a "judgment call" defense? Can plaintiff prove to a judge’s satisfaction that testimony from that expert would have made a difference? Is it all speculative?

Are the harmless errors a mistake of the attorney, or did he/she make a valiant effort to object, only to be overruled? Obviously the AD felt that there was no "but for" aspect…they found it harmless.

Legal malpractice litigation seems different from all other professional malpractice areas. There seem to be more defenses and hurdles in this lawyer written-lawyer judged-lawyer prosecution area.

The area of estate legal malpractice was seismically upset when the Court of Appeals decided Schneider v. Finmann.  Here, inSobel v Ansanelli  2012 NY Slip Op 06202  Decided on September 19, 2012  Appellate Division, Second Department   we do not see the standing issue.  This decision works its way through a legal malpractice, fraud, breach of fiduciary duty, breach of contract and duress claims.
 

"In August 2005 the decedent, Mary Ellen Malone, retained the defendant Vincent W. Ansanelli and the defendant law firm, Ansanelli, Kugler & Svendsen, LLP, to perform estate planning services, including asset protection, the preparation and filing of an application for Medicaid benefits, and the transfer of the decedent’s cooperative apartment to her daughter, Christina Sobel. At the time the decedent retained the defendants, the alleged total value of her assets was approximately $190,000, and she allegedly had debts of approximately $60,000. More than two years after the decedent’s death, by summons and complaint filed on February 3, 2011, Sobel commenced this action asserting six causes of action alleging, in effect, legal malpractice, breach of contract, breach of fiduciary duty, fraud, and duress. The plaintiff’s breach of fiduciary duty claims, set forth under the first and second causes of action, were premised upon allegations that the defendants had charged excessive legal fees totaling over $44,000 for the protection of the decedent’s relatively modest estate.

Prior to joinder of issue, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7). In support of their motion, they submitted, inter alia, copies of invoices allegedly sent to the plaintiff, and argued that these invoices established a defense to some [*2]of the plaintiff’s claims because she had ratified them by retaining them without objection, making partial payment, and signing an agreement promising to pay the balance due. The defendants also submitted a document from the City of New York Human Resources Administration dated July 30, 2008, which indicated that the decedent’s application for Medicaid benefits had been retroactively granted from November 1, 2006, to the date of her death on April 28, 2008. The defendants additionally contended that none of the plaintiff’s claims stated a cause of action, and that the plaintiff’s legal malpractice claim was barred by the statute of limitations. "

Contrary to the defendants’ contention, the Supreme Court properly denied those branches of their motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the first and second causes of action alleging, in effect, breach of fiduciary duty premised on the theory that the defendants charged excessive legal fees. A motion to dismiss pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 88; Harris v Barbera, 96 AD3d 904; Parekh v Cain, 96 AD3d 812). To qualify as documentary evidence, printed materials "must be unambiguous and of undisputed authenticity" (Fontanetta v John Doe 1, 73 AD3d 78, 86; see Flushing Sav. Bank, FSB v Siunykalimi, 94 AD3d 807, 808; Yeshiva Chasdei Torah v Dell Equity, LLC, 90 AD3d 746, 746-747). Further, on a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading 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 (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; Leon v Martinez, 84 NY2d at 87).

Here, the invoices which the defendants submitted in support of their position that the plaintiff ratified the legal fees charged for services to the decedent were of disputed authenticity and did not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1150; see also Parekh v Cain, 96 AD3d 812; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 997). In any event, the invoices did not conclusively establish, as a matter of law, a defense to the first and second causes of action (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d at 1150-1151; see also Cannon v First Natl. Bank of E. Islip, 98 AD2d 704, 705, affd 62 NY2d 1003). Furthermore, the factual allegations in the first and second causes of action are sufficient to state a cause of action sounding in breach of [*3]fiduciary duty (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d at 1150). Thus, dismissal of the first and second causes of action pursuant to CPLR 3211(a)(1) and (7) was not warranted.

The Supreme Court properly, in effect, granted that branch of the defendants’ motion which was to dismiss the sixth cause of action alleging, in effect, legal malpractice as time-barred pursuant to CPLR 3211(a)(5) only to the extent of directing dismissal of so much of that cause of action as was predicated upon alleged acts or omissions occurring more than three years prior to the commencement of the action. Dismissal of the sixth cause of action in its entirety as time-barred was not warranted because, to the extent that the plaintiff’s legal malpractice claim is predicated upon the defendants’ alleged failure to protect the value of estate assets consisting of the cooperative apartment, the defendants’ own submissions raise an issue of fact as to whether the continuous representation doctrine tolled the statute of limitations until February 3, 2008, the date of the final invoice for legal services performed in connection with the sale of the apartment (see Golub v Baer, Marks & Upham, 172 AD2d 489, 490; see also Macaluso v Del Col, 95 AD3d 959, 960; Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120; Howish v Perrotta, 84 AD3d 1312, 1313). Moreover, accepting the facts alleged in the amended complaint as true and according the plaintiff the benefit of every possible inference, the plaintiff’s allegation that the defendants negligently failed to protect the cooperative apartment states a legally cognizable claim to recover damages for legal malpractice (see Magnus v Sklover, 95 AD3d 837; Esposito v Noto, 90 AD3d 825). Accordingly, the Supreme Court also properly denied that branch of the defendants’ motion which was to dismiss the sixth cause of action pursuant to CPLR 3211(a)(7). "