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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

One aspect of legal malpractice litigation is the failure to follow developments in the law. Rules change and not keeping up with the changes leads to mistakes, criticism and, later, litigation. The rules for non-party discovery have undergone some changes over the years, and today’s decision is worth reading.

In Kooper v Kooper ; 2010 NY Slip Op 04147  Appellate Division, Second Department ;Angiolillo, J., J. the Court lays out an arc of procedure for non-party discovery. Prior to 1984 a motion was required. The rule was amended and then in 2002 the rule was amended again to allow for subpoenas instead of motions when seeking documents from a non-party. Now the rule again changes:
 

"Subsequent to Dioguardi, many of our cases involving nonparty discovery continued to hold that "special circumstances" must be shown (see e.g. Katz v Katz, 55 AD3d 680, 683; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725, 726; Attinello v DeFilippis, 22 AD3d 514, 515; Tannenbaum v Tenenbaum, 8 AD3d 360; Lanzello v Lakritz, 287 AD2d 601; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d 482, 483; Tsachalis v City of Mount Vernon, 262 AD2d 399, 401; Mikinberg v Bronsther, 256 AD2d 501, 502; Matter of Validation Review Assoc. [Berkun- Schimel], 237 AD2d at 615; Wurtzel v Wurtzel, 227 AD2d 548, 549), while many of our most recent cases have avoided the "special circumstances" rubric (see e.g. Cespedes v Kraja, 70 AD3d 622; Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 843-844; Tenore v Tenore, 45 AD3d 571, 571-572; Smith v Moore, 31 AD3d 628, 629; Matter of Lutz v Goldstone, 31 AD3d 449, 450-451; Thorson v New York City Tr. Auth., 305 AD2d 666). In light of its elimination from CPLR 3101(a)(4), we disapprove further application of the "special circumstances" standard in our cases, except with respect to the limited area in which it remains in the statutory language, i.e., with regard to certain discovery from expert witnesses (see CPLR 3101[d][1][iii]). On a motion to quash a subpoena duces tecum or for a protective order, in assessing whether the circumstances or reasons for a particular demand warrant discovery from a nonparty, those circumstances and reasons need not be shown to be "special circumstances."

Whether or not our cases have applied the "special circumstances" standard, however, they contain underlying considerations which the courts may appropriately weigh in determining whether discovery from a nonparty is warranted. We look, then, to the reasoning in our cases to find guidance with respect to the circumstances and reasons which we have considered relevant to the inquiry with respect to discovery from a nonparty. Since Dioguardi, this Court has deemed a party’s inability to obtain the requested disclosure from his or her adversary or from independent sources to be a significant factor in determining the propriety of discovery from a nonparty. A motion to quash is, thus, properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty (see Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d at 726; Tannenbaum v Tenenbaum, 8 AD3d at 360; Lanzello v Lakritz, 287 AD2d at 601; Tsachalis v City of Mount Vernon, 262 AD2d at 401; Matter of Validation Review Assoc. [Berkun-Schimel], 237 AD2d at 615), and properly denied when the party has shown that the evidence cannot be obtained from other sources (see Cespedes v Kraja, 70 AD3d at 722; Tenore v Tenore, 45 AD3d at 571-572; Thorson v New York City Tr. Auth., 305 AD2d at 666; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d at 483). Our cases have not exclusively relied on this consideration, however, and have weighed other circumstances which may be relevant in the context of the particular case in determining [*6]whether discovery from a nonparty is warranted (see Abbadessa v Sprint, 291 AD2d 363 [conflict in statements between the plaintiff and nonparty witness]; Mikinberg v Bronsther, 256 AD2d at 502 [unexplained discontinuance of the action against the witness, formerly a party]; Patterson v St. Francis Ctr. at Knolls, 249 AD2d 457 [previous inconsistencies in the nonparty’s statements]).

We decline, here, to set forth a comprehensive list of circumstances or reasons which would be deemed sufficient to warrant discovery from a nonparty in every case. Circumstances necessarily vary from case to case.
 

The question of how a competent and qualified attorney would handle a case is the crux of Bua v Purcell & Ingrao, P.C.   2012 NY Slip Op 06908   Decided on October 17, 2012   Appellate Division, Second Department .  At issue is whether attorney committed malpractice in the termination of a real estate contract of sale.

"The plaintiff commenced this action to recover damages allegedly sustained as a result of the defendants’ legal malpractice. The amended complaint alleged that the plaintiff retained the defendants to represent and advise him in connection with the sale of certain real property. The plaintiff entered into a contract of sale with a buyer, who tendered a deposit to be held in escrow. The amended complaint further alleged that, prior to the closing date, the buyer’s attorney attempted to terminate the contract of sale because the buyer was unable to obtain financing for the purchase. The defendant Joseph A. Ingrao informed the plaintiff that the buyer wished to cancel the contract of sale, and the plaintiff agreed to cancel the contract and return the deposit.

The amended complaint stated that Ingrao sent the buyer’s attorney a letter "purporting to terminate" the contract of sale and returning the deposit. More than seven months later, however, the buyer attempted to revive the contract of sale and purchase the property under its terms. The plaintiff refused, maintaining that the contract had been terminated. The buyer subsequently commenced an action against the plaintiff for specific performance of the contract of sale and filed a notice of pendency. In that action, the plaintiff argued, inter alia, that the contract of sale, had been terminated when the deposit was returned. The plaintiff also commenced a holdover proceeding. The plaintiff ultimately prevailed in the specific performance action.

The amended complaint asserted that the defendants committed malpractice by failing to "obtain a clear and unambiguous termination of the [contract of sale] after [the buyer’s] attorneys advised Ingrao that she wished to terminate the [contract of sale]." The amended complaint listed various things that the plaintiff claimed the defendants "should have done" in order to accomplish [*2]a "clear and unambiguous" termination of the contract of sale. "

"The standard to which the defendant’s conduct is to be compared is not that of the most highly skilled attorney, nor is it that of the average member of the legal profession, but that of an attorney who is competent and qualified (see Restatement [Second] of Torts: Negligence § 299A, Comment e). The conduct of legal matters routinely "involve[ ] questions of judgment and discretion as to which even the most distinguished members of the profession may differ" (Byrnes v Palmer, 18 App Div 1, 4, affd 160 NY 699). Absent an express agreement, an attorney is not a guarantor of a particular result (see Byrnes v Palmer, 18 App Div at 4; see also 1B NY PJI3d 2:152, at 140-141 [2012]), and may not be held "liable in negligence for . . . the exercise of appropriate judgment that leads to an unsuccessful result" (Rubinberg v Walker, 252 AD2d 466, 467; see Grago v Robertson, 49 AD2d 645, 646; see also PJI 2:152).

It follows that "[the] selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738; see Dimond v Kazmierczuk & McGrath, 15 AD3d 526, 527). Attorneys are free to act in a manner that is "reasonable and consistent with the law as it existed at the time of representation," without exposing themselves to liability for malpractice (Darby & Darby v VSI Intl., 95 NY2d 308, 315; see Noone v Stieglitz, 59 AD3d 505, 507; Iocovello v Weingrad & Weingrad, 4 AD3d 208, 208). "

"In conclusion, as the plaintiff effectively concedes, he is estopped from denying that the defendants effected a legally valid termination of the contract of sale. To the extent that the allegations in the amended complaint are not barred by the doctrine of judicial estoppel, they fail to state a cause of action to recover damages for legal malpractice. Accordingly, the defendants’ motion to dismiss the amended complaint was properly granted and the plaintiff’s cross motion was properly denied as academic."
 

Airey v Remmele  2012 NY Slip Op 22299   Decided on October 15, 2012   Supreme Court, Erie County   NeMoyer, J.  is a case we started to read, and then had to go back to the beginning to sort out.  Who would have thought that this story would have happened in the Buffalo area? 
 

While this is not a legal malpractice case, it does have implications for the value of damages in a breach of fiduciary duty claim.  "The complaint states discrete causes of action for breach of contract, breach of fiduciary duty, negligence, and fraud or misrepresentation (or, more accurately, fraudulent omission of a material fact). The gravamen of each cause of action is that Remmele held herself out to the public and to plaintiff and plaintiff’s then wife as a "marital counselor"; that plaintiff and his then wife engaged defendant to provide "marriage counseling" to the couple in an attempt to "reconcile" their "differences"; that as part of such counseling, plaintiff disclosed to defendant intimate details with respect to his "marriage and his relationship"; that plaintiff paid defendant for such counseling; but that plaintiff eventually learned that defendant had a sexual relationship or extramarital affair with plaintiff’s wife, leading to the commencement of divorce proceedings between plaintiff and his wife. "

"The Court has no intention here to delineate all of the categories or species of damages that might be recovered by plaintiff upon proof of a breach of a contractual or tort duty allegedly assumed by defendants. The Court would note, however, that it probably would countenance an effort by plaintiff to recover his alleged economic or "out-of-pocket" damages in the form of the loss of the benefit of his bargain with defendants. In other words, this Court would have no problem with plaintiff’s recouping any money he had paid [FN2] to defendants specifically for marital counseling if, as alleged, Remmele did not in fact use her best efforts to help the marriage but instead subverted it by embarking on a sexual relationship with plaintiff’s wife. Quite simply, the idea that a self-professed counselor could accept and keep a fee earmarked for marriage or relationship counseling despite entering into a secret sexual relationship with one of the counseled parties is beyond this Court’s acceptance.

Addressing defendants’ challenges to the individual causes of action, the Court concludes that plaintiff has sufficiently alleged the existence of a contract whereby defendants would provide marital counseling to plaintiff and his then wife, and that plaintiff further has sufficiently alleged a breach of that contract and resultant damages. Plaintiff alleges that beginning in 2009 and continuing into 2011, plaintiff engaged the paid services of defendants for the purposes of providing marriage counseling. Although defendants have denied that, they have not done so conclusively, their documentary evidence notwithstanding. Although the e-mail exchange of November 2010 and the more formal written contract of January 2011 certainly tend to show that plaintiff was engaged as a "business coach," neither the exchanged e-mails nor the terse written contract on their face refute the allegation that defendant was already engaged in providing marriage counseling to the couple. Indeed, this Court notes that the November 29, 2010 e-mail from defendant to plaintiff’s wife — which e-mail defendant herself describes as having formed the first consultation contract — afforded the couple an $800 "[c]ourtesy, current client discount" from defendants’ "[r]egular [c]ost." That contractual term at least arguably buttresses plaintiff’s assertion that there was a pre-existent counseling relationship and undermines defendant’s contrary assertion. Similarly, and again, the January 28, 2011 meeting summary, which is relied upon by [*5]both parties, tends to show that defendant counseled the couple with regard to their personal or marital relationship as well as their relationship at work.

By the same token, and for similar reasons, the Court concludes that plaintiff has adequately pleaded the essential elements of cause of action for breach of fiduciary duty, professional negligence or malpractice, and fraudulent concealment. These causes of action present a somewhat closer question for the Court, however, given defendant’s apparent lack of State licensing or other recognized professional credentials or certification as a psychologist, social worker, therapist, or the like. Nevertheless, it appears to the Court that defendant may have held herself out to the public as someone qualified to counsel individuals or couples in their relationships, including their marriages, and that indeed is plaintiff’s explicit allegation. Thus, the Court concludes, plaintiff has sufficiently alleged the existence of a fiduciary duty [FN3] and other relationship of trust between himself and defendant, defendant’s breach thereof,

defendant’s exploitation of intimate information, and defendant’s concealment of the arguably material fact that, while purporting to counsel the couple in their marriage, defendant was having a sexual affair with plaintiff’s wife.[FN4] Further, plaintiff has sufficiently alleged that defendant provided negligent and careless counseling to plaintiff and did not possess the ordinary skill, knowledge, or ability of those holding themselves out to the public as marriage counselors.

Concerning plaintiff’s demand for punitive damages, the fact is that punitive damages might well be recoverable upon proof of defendants’ commission of fraud and possibly their breach of fiduciary duty and negligence as well (see Dupree, 87 AD3d at 978 [upholding punitive damages award against physician who assumed role as plaintiff’s mental health therapist but who had sexual affair with her]). Any such award would be aimed at punishing the wrongdoer and deterring similar conduct by others (see Laurie Marie M. v Jeffrey T.M., 159 AD2d 52, 59 [2d Dept 1990], affd 77 NY2d 981 [1991]; Peters v Newman, 115 AD2d 816, 817 [3d Dept 1985], appeal dismissed 67 NY2d 916 [1986]; see also Le Mistral, Inc. v Columbia Broadcasting Sys., 61 AD2d 491, 494 [1st Dept 1978], appeal dismissed 46 NY2d 940 [1979] [citing 14 NY Jur, Damages, § 176 for proposition that "exemplary damages are [generally] recoverable in all actions ex delicto based upon tortious acts which involve ingredients of malice, fraud, oppression, insult, wanton or reckless disregard of the plaintiff’s rights, or other circumstances of aggravation, as a punishment of the defendant and admonition to others"]; see generally Walker v Sheldon, 10 NY2d 401, 404-405 [1961]). Thus, punitive damages may be awarded where the [*6]wrong complained of is "actuated by evil and reprehensible motives" (Walker, 10 NY2d at 404), is "intentional and deliberate, and has the character of outrage frequently associated with crime" (Prozeralik v Capital Cities Communications, 82 NY2d 466, 479 [1993], quoting Prosser and Keeton, Torts § 2, at 9 [5th ed 1984] [internal quotation marks omitted]). However, such punitive damages may be awarded only in proportion to any actual injury inflicted by the defendant (see generally Correia v Suarez, 52 AD3d 641 [2d Dept 2008]).

Here, in the absence of an order dismissing the tort causes of action, there is no basis for ruling out any claim for punitive damages that might be premised thereon, certainly not at the threshold. Plaintiff is entitled to explore through discovery defendant’s alleged conduct, both with respect to this couple and in general.

Accordingly, the motion of defendants to dismiss the complaint is DENIED, although it is DETERMINED as a matter of law that plaintiff may not recover damages, including for emotional distress, on account of the sexual relationship between defendant and plaintiff’s then wife or the consequent damage to or destruction of the marriage. "

In this recurring situation, plaintiff has both a California and a NY connection, and hired an attorney to do some work, which eventually goes sour. Frequently a case like this comes up in the entertainment field, with its CA and NY roots. As an example, Basilotta v Warshavsky ; 2011 NY Slip Op 32185(U); August 2, 2011; Sup Ct, NY County; Docket Number: 115525/09; Judge: Paul Wooten shows how the short CA statute of limitations (1 year) undermines the longer NY statute (3 years).

"During the 1980’s plaintiff was a singer known for her popular 1982 song Hey Micky. At all relevant times she has been a California resident. In or about 2003, non party Fallon Inc produced a television commercial for the non-party Subway restaurant franchise that featured Micky without Plaintiff’s knowledge or consent. Subsequent to becoming aware of this commercial, plaintiff retained defendant Oren J. Warshavsky, who at the time worked at defendant law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione (“Gibbons”).’ Plaintiff alleges that she retained Warshavsky and Gibbons I) to seek compensation for the unauthorized use of Mickey in the commercial, and 2) to clarify her ownership rights to the Mickey master recordings. The retainer agreement between the parties was strictly contingency-fee based, and defines the scope of the retainer as “regarding all causes of action."

The gist of the legal malpractice case is that the attorneys got a settlement offer of $ 35,000 and when plaintiff did not accept, sent a letter to a successor attorney advising him of their position that, among other things, plaintiff had terminated her relationship with Gibbons in December, 2006.

The later legal malpractice case revolved around the ownership and exploitation of the master recordings and whether Gibbons was to blame for legal malpractice. Under CPLR 202, a cause of action accruing in a jurisdiction outside NY must be timely both in NY and in that other jurisdiction.

In legal malpractice, where the demanded relief is monetary damages, the site of loss is the plaintiff residence, On this basis, the complaint was dismissed.