In an unusual turn of events, defendant moved to amend his answer and for summary judgment.  His motion was denied, and he took an appeal.  In an unusual timing situation, trial and verdict in the case , Borges v Placeres  2012 NY Slip Op 51883(U)  Decided on October 3, 2012 Appellate Term, First Department favor of plaintiff mooted his appeal.

"It being undisputed that the underlying legal malpractice action has now been tried to completion and judgment entered in plaintiff’s favor, defendant’s appeal from the interlocutory order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised here by defendant are reviewable upon appeal from the judgment (see CPLR 5501[a][1]). "

"An attorney who defends himself has a fool for a client" appears to date from 1809 in the Philadelphia the Port Folio.  Nothing has changed over the past 200 years.  In Guerrera v Zysk
2012 NY Slip Op 06578   Decided on October 3, 2012   Appellate Division, Second Department  we see an example.  Defendant attorney appears pro-se.  He served a 90 day notice, and on the same date, served a motion to dismiss based upon the 90 day notice.  After the motion was denied, an appeal followed.  The appeal was obviously unsuccessful.  Was this simply to bleed plaintiff?
 

"On May 5, 2010, the defendant served the plaintiff with a written demand pursuant to CPLR 3216 to serve and file a note of issue within 90 days after receipt of the demand. Shortly thereafter, the defendant served a notice of motion dated May 5, 2010, inter alia, pursuant to CPLR 3216, in effect, to dismiss the complaint for failure to prosecute. Since the defendant’s motion was served before the expiration of the 90-day period, the Supreme Court properly denied that branch of the motion which was pursuant to CPLR 3216, in effect, to dismiss the complaint (see Weber v Kessler, 224 AD2d 520, 521; Divjak v New York Hosp.-Cornell Med. Ctr., 219 AD2d 695; Lyons v Butler, 134 AD2d 576). "

How many fathers go to jail for non-payment of child support?  We have no firm number, but guess it is less than 10 a year in New York State.  Here is the story of one who was.   Joel Amaker was in arrears on his child support, and hired defendant Howard D. Lee to represent him.  The hearing ended in incarceration for Mr. Amaker, and a later pro-se legal malpractice case against Mr. Amaker.   Amaker v Lee   2012 NY Slip Op 51868(U)   Decided on September 28, 2012   Supreme Court, Kings County   Rivera, J     

In the decision note the prominence of Dombrowski v Bulson, 19 NY3d 347 [2012)  on the issue of what damages are permissible in a legal malpractice case. 
 

"The complaint alleges the following salient facts. In May of 2003, plaintiff hired the defendant to represent him in a child support proceeding pending in New York County Family Court under Docket No.: F-00898-02/05B, F-0898-02/05C called Jeanette Chirico v. Joel Amaker (hereinafter referred to as the "child support case"). Plaintiff retained the defendant to review the orders in the child support case against the orders in plaintiff’s preceding divorce action in Supreme Court and then take over the child support case to reduce the child support order and arrears existing at that time. The plaintiff paid the defendant an initial deposit of $500.00 towards the child support case.

The complaint also alleges that the defendant missed several court appearances, failed to notify the court that he was not coming, and failed to prepare a defense for the plaintiff in the child support case. In particular the defendant failed to argue at a "willfulness hearing" that the plaintiff’s failure to pay child support was not due to his desire not to pay but being unable to pay due to other circumstances. After a hearing, in which the plaintiff and the defendant were present, the court in the child support case made a decision holding the plaintiff to be in willful violation of the order of support and incarcerated him for a period of six months. The defendant failed to appeal the contempt order. Plaintiff contends that the defendant’s conduct amounted to legal malpractice and resulted in his incarceration. "

"In the instant matter defendant contends that the plaintiff cannot demonstrate two essential factors. First, that plaintiff would have prevailed in the child support case. Second, that he would not have incurred any damages, but for the lawyer’s negligence. There is no dispute that the support obligation and accumulated arrears, which precipitated the child support case, existed long before the plaintiff hired the defendant to represent him. There is also no dispute that the plaintiff’s incarceration occurred after a hearing, in which he was offered an opportunity to present evidence and test the evidence submitted against him.

The defendant does not admit that he committed malpractice. Rather, he contends that accepting as true every allegation of fact stated in the complaint, the plaintiff does not plead any facts showing that he suffered a pecuniary loss. He further contends that plaintiff cannot demonstrate any pecuniary loss proximately caused by the defendant’s alleged malpractice.

Defendant’s sworn allegations of fact and documentary evidence makes a prima facie showing of the following facts. The plaintiff did not prevail in the child support case because he was found after an evidentiary hearing to have willfully failed to comply with a court ordered child support obligation. The plaintiff was incarcerated based on his willful disobedience of a child support order. The defendant did not agree to represent the plaintiff on an appeal of any order emanating from the child support case.

Assuming, for the sake of argument, that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession when he represented the plaintiff in the child support case, the plaintiff must demonstrate causation between the malpractice and ascertainable pecuniary loss. Pecuniary loss, does not include the emotional damage or pain and suffering caused by being incarcerated (see Dombrowski v Bulson, 19 NY3d 347 [2012]; Gaskin v Harris, —- NYS2d ——, 2012 WL 3971280 [2nd Dept 2012]).

Defendant has made a prima facie showing that the plaintiff did not plead and cannot prove that he sustained any ascertainable pecuniary damage caused by the defendant’s alleged negligence in representing him. The defendant has, therefore, made a prima facie showing that the plaintiff is unable to prove at least one of the essential elements of his legal malpractice claim (Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716 [2nd Dept 2012]).

By doing so, the defendant has shifted the burden to the plaintiff to raise an issue of fact requiring a trial (Alaimo v Mongelli, 93 AD3d 742 [2nd Dept 2012]). The plaintiff has submitted an unsworn statement, incorrectly denominated as an affidavit, stating his position. The exhibits annexed to his opposition are therefore, not properly admitted and [*5]have no probative value. A review of the contents of plaintiff’s statement, assuming that it had been properly sworn, reveals no triable issue. When viewed in the light most favorable to the plaintiff, it demonstrates no ascertainable pecuniary loss caused by the defendant’s acts or omissions in representing him in the child support case. Plaintiff has failed to raise an issue of fact requiring a trial.

Defendant’s motion for an order granting summary judgment in his favor on liability and dismissing the complaint pursuant to CPLR 3212 is granted.In light of the foregoing, the court need not and does not reach defendant’s motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). "

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. "