Try to sort through Tolmosova v Umarova   2012 NY Slip Op 51921(U)     Decided on October 1, 2012   Supreme Court, Kings County   Schmidt, J. and you will see two things.  There is a reason such a large percentage of new businesses fail.  The second is that the hearing on this case must have been amazing.
 

"The complaint alleges five causes of action – the first four with respect to the signatories to the agreement. The first cause of action is alleged against Benyaminova for repayment of the promissory note; the second cause of action is alleged against Benyaminova for her share of the Avenue D property and business and/or her share of defendant Kids Kingdom (another daycare business); the third cause of action is alleged against Umarova for fraud and conversation for representing to plaintiff that she (Umarova) was the only person capable of obtaining the certificate of occupancy; and the fourth cause of action is alleged against Umarova for a judgment transferring 100% of the shares of Skazka III, Inc. to plaintiff.

The fifth cause of action alleges legal malpractice and breach of fiduciary duty against Mr. Popik in the drafting of the August 24, 2000 agreement. Specifically, the complaint alleges that Mr. Popik failed to exercise reasonable skill and knowledge commonly possessed by a member of the legal profession in representing multiple parties with potential conflicts of interest; failed to inform plaintiff of her right to have independent counsel review and evaluate the agreement, and discouraged her from doing so; and failed to provide plaintiff with a general waiver or release regarding representation of multiple parties in connection with the agreement. The complaint further alleges that Mr. Popik’s negligence and breach of fiduciary duty caused plaintiff to sustain damages, including the [*4]loss of ownership and interest in the Avenue D and Avenue I premises.

In August, 2003, defendant filed a verified answer. Shortly thereafter, plaintiff discontinued this action against Benyaminova and did not pursue default judgments against co-defendants Skazka III, Inc., Kids Kingdom, Losyev, and Lilly Godzhinsky.

By order dated October 19, 2004, Hon. Francois A. Rivera granted the motion of Umarova to dismiss the third cause of action to the extent it sought damages for conversion as time-barred, and dismissed the third cause of action to the extent it sought damages for fraud for failure to state a cause of action. Subsequently, plaintiff abandoned the complaint against now deceased defendant Timur Umarov. It is undisputed that since the commencement of this action, plaintiff has not served any discovery demands upon any other defendant nor did she seek the deposition of Mr. Popik. "

"Here, Mr. Popik has demonstrated that the complaint fails to state a cause of action for legal malpractice and has made a prima facie showing entitling him to summary judgment dismissing the complaint insofar as asserted against him. In this regard, the complaint, along with the testimony of plaintiff, fails to demonstrate that the advice provided by defendant to plaintiff was the proximate cause of plaintiff’s alleged damages and that plaintiff sustained actual and ascertainable damages.

Specifically, the first cause of action alleges that Benyaminova failed to pay plaintiff the amount set forth in the April 12, 2000 promissory note: $60,700.00, plus interest, costs and attorney’s fees. However, it is undisputed that the promissory note was prepared by another attorney, which was executed by Benyaminova three months before plaintiff represented defendant. Thus, Mr. Popik properly argues that there is no nexus between his representation of plaintiff and Benyaminova’s failure to pay plaintiff. In any event, plaintiff testified at her deposition that she received full payment ($47,000.00) in full satisfaction of this debt alleged in the first cause of action.

Plaintiff’s second cause of action alleges that if Benyminova failed to pay plaintiff back as agreed (in the Letter of Intent), Benyaminova’s share in the Avenue D business would be transferred to Skazka III, Inc.; that Benyaminova’s interest in Avenue D was in the form of a 50% ownership in Kids Kingdom; that plaintiff would be entitled to all the ownership interest in Skazka III, Inc. if plaintiff was not made the owner of the Avenue I premises and business; and that since plaintiff was not made the owner of the Avenue I premises and business, as set forth in the Letter of Intent, and since plaintiff was not made the owner of the Avenue I premises and business, and Benyaminova failed to pay plaintiff back, plaintiff is entitled to Benyaminova’s share of the property and business at the Avenue D premises and/or Benyaminova’s share of defendant Kids Kingdom Inc. Despite these allegations, plaintiff testified that she was not making a claim against Benyaminova "at this time." Plaintiff also testified that she was no longer interested in getting the shares of Skazka III, Inc. ("I don’t want any Skazka or anything"). Similar to the first cause of action, the allegations of this cause of action fail to allege any breach by defendant or that any alleged breach proximately caused plaintiff to sustain any damages.

The third cause of action alleges that Umarova and Benyaminova fraudulently represented to plaintiff that Umarova was the only individual capable of obtaining the certificate of occupancy for a cost of $140,000.00 for the Avenue D premises; that the Avenue D premises already had a daycare certificate; and that therefore Umarova was liable to plaintiff for punitive damages. However, this cause of action has already been dismissed. In any event, plaintiff testified that defendant was not involved in making these purported fraudulent representations, thus this cause of action cannot serve as a basis for a legal malpractice claim against defendant.

The fourth cause of action has been dismissed as well. It alleges that if Umarova failed to purchase 50% of the Avenue I premises and business, the plaintiff would be entitled to 100% of the shares of Skazka III, Inc., and that Umarova failed to make that [*6]purchase. However, plaintiff testified that defendant was not required to purchase a part of the Avenue I premises. Thus, there is no basis for a claim for legal malpractice with respect to this cause of action – Mr. Popik was not involved in this transaction nor is there any connection between Mr. Popik and plaintiff’s alleged damages.

The fifth cause of action for legal malpractice alleges that Mr. Popik drafted the August 24, 2000 Letter of Intent, creating an attorney/client privilege; that Mr. Popik failed to exercise reasonable skill and knowledge possessed by a member of the legal profession in representing multiple parties with conflicting interests, and that Mr. Popik failed to inform plaintiff of her right to have independent counsel review and evaluate the Letter of Intent, causing plaintiff to sustain damages – namely loss of ownership and interest in the Avenue D and Avenue I premises. Even liberally construed, plaintiff’s claim of damages are bare legal conclusions. Even assuming they vaguely state a claim for damages, the allegation of Mr. Popik’s negligence is unequivocally contradicted by documentary evidence. In this regard, plaintiff testified that Mr. Popik’s only fault was his assurance to her that Umarova "was a very decent person" whom he had known for 17 years; that he made "this agreement between all of us because this is an agreement among honest people;" and that she had no evidence that Mr. Popik helped Umarova to defraud plaintiff.[FN2] Moreover, even assuming plaintiff sustained damages, she testified that Mr. Popik did not "have anything do to with" Umarova’s failure to pay her a certain percentage of interest in the Avenue D and Avenue I premises. Further, plaintiff failed to show how the alleged malpractice caused any such damages since the Letter of Intent was not a binding contract but merely "effectuated the intent of the parties" (Weksler v Kane Kessler, P.C., 63 AD3d 529, 531[2009]).

In light of the foregoing, defendant has demonstrated that the complaint fails to allege that plaintiff would be able to prove that, but for the alleged malpractice, she would have prevailed on her claim that she lost her interest in the Avenue D and Avenue I premises.Stated otherwise, defendant has demonstrated that the complaint fails to state a viable cause of action sounding in legal malpractice and has made a prima facie showing entitling him to dismiss the complaint insofar as asserted against him.

In opposition, plaintiff has failed to raise a triable issue of fact. Plaintiff relies solely upon her 2004 affidavit in which she recounts her dealings with Mr. Popik in the drafting of the Letter of Intent. She states, among other things, that she met with Mr. Popik and five other of the defendants to settle a dispute among them; that Mr. Popik praised Umarova as a trustworthy individual; that Mr. Popik read the agreement and translated it into Russian, with all parties present; and that it was executed by all the parties. Plaintiff [*7]goes on to state that Mr. Popik convinced her and Benyaminova to sign a deed which caused plaintiff to sign over her one-half interest in a parcel of real estate to defendant Losyev; that he notarized the signatures; that he was paid by the parties for his services; and that when, two weeks later, plaintiff told Mr. Popik that she was nervous about the agreement because the parties were not fulfilling their obligations, Mr. Popik agreed to represent her against these parties, but now claims he did not have an attorney/client relationship with her.

Thus, counsel for plaintiff sums up plaintiff’s claims as follows: Mr. Popik: (1) represented several parties simultaneously with differing interests; (2) prepared an agreement for said parties; (3) accepted payment for his services; (4) represented plaintiff against another party to the agreement; and (4) caused plaintiff to lose her interest in real property and business. He asserts that "[u]pn entering Mr. Popik’s office [p]laintiff possessed real property and a business interest . . .[a]fter she left Mr. Popik’s office, [p]laintiff neither had an interest in the real property nor an interest in her business," because Mr. Popik "prepared, notarized and record the documents." Counsel further asserts that "questions of material facts exist as to whether [d]efendant Popik corrupted the attorney-client relationship by representing multiple parties and, in doing so, acted negligently."

As defendant states in his reply, plaintiff has failed rebut his prima facie showing. Stated otherwise, neither plaintiff’s affidavit or counsel’s affirmation address the elements comprising a cause of action for legal malpractice. Plaintiff fails to identify any breach on defendant’s part, or that any alleged breach proximately caused plaintiff to sustain actual or ascertainable damages. To establish causation, plaintiff was required to show that she would not have incurred any damages, but for Mr. Popik’s negligence. Plaintiff utterly failed to make any such showing. In fact, she testified to the contrary and, as indicated above, her claims of damages are conclusory. Further, while plaintiff’s counsel asserts that plaintiff entered Mr. Popik’s office possessing real property and left without such interest, this representation is completely conclusory and devoid of any evidentiary support. Moreover, plaintiff’s opposition is bereft of any discussion of plaintiff’s deposition testimony, which undermines the allegations of her complaint, including the allegation that she was not advised that she could have the Letter of Intent reviewed by independent counsel. As noted above, plaintiff’s only complaint against Mr. Popik was that he represented to plaintiff that Umarova was a very decent person.In sum, plaintiff has failed to rebut defendant’s prima facie showing. "

 

We don’t often see a US District Court Judge get so worked up.  Here, in PAUL BLACK, Plaintiff, -against- JEFFREY S. SCHWARTZ and LAW OFFICE OF JEFFREY S. SCHWARTZ, Defendants.09-CV-2271(JS)(GRB)     UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK     2012 U.S. Dist. LEXIS 132524 we see a garden or varietal legal malpractice case gone awry.

"Defendants argue that California law does not permit parties who are hit with sanctions to recover the amount of the sanctions from their lawyers. (Defs. Br. 13.) They cite Jocer Enterprises, Inc. v. Price, Roper, Majeski, Kohn & Bentley, 183 Cal. App. 4th 559, 107 Cal. Rptr. 3d 539 (Cal. Ct. App. 2010) for the proposition "that an award for attorney fees imposed by the Court a client [sic], individually, may not be recovered as damages in a subsequent legal malpractice action." (Defs. Br. 13.) Given the loose relationship Defendants’ brief has with the facts in this case–see below–it is perhaps unsurprising that Jocer stands for no such thing."

"Defendants argue that Plaintiff’s injury was really caused by his not having a factual basis to prevail on the merits in the California Action. This is a variation of Defendants’ first argument, and it has at least two flaws. One, it is [*7] premised on a flagrantly misleading characterization of Plaintiff’s expert’s deposition. Noting that Plaintiff’s expert testified that Defendants may have had a colorable basis to sue LTN–the Land America subsidiary–Defendants transform this opinion into a finding that Defendant’s decision to sue Land America was not negligent. (Defs. Br. 16.) In fact, Plaintiff’s expert agreed hypothetically that there might have been an arguable claim against LTN but he was clear that Land America would not have been a proper target. (Defs. Ex. M at 79-80, 94.) Defendants have the gall to make this argument again in their reply (see Defs. Reply 4) even after Plaintiff pointed out that it is based on an incorrect reading of the expert’s deposition (Pl. Opp. 5-6). Two, this argument confuses the claimed injury in this case. Plaintiff does not claim that he would necessarily have prevailed on the merits in the California Action; rather, he simply argues that but for Defendants’ malpractice, he would not have been sanctioned for misconduct."

"As an initial matter, the Court notes that Defendants’ citations to evidence in this motion are virtually meaningless. The exhibits, which are referred to by letter throughout Defendants’ papers, were not included with Defendants’ courtesy copies to the Court (in violation of the undersigned’s individual motion practices), and they are not labeled by letter on ECF. More troublingly, citations to Schwartz’s 167-page deposition do not contain page numbers (the absence of page references was an issue in Defendants’ summary judgment brief as well)"

"Finally, in light of Defendants’ blatant mischaracterizations discussed above, the Court is not inclined to find that either party has behaved worse than the other. Cf. Schlaifer Nance & Co., Inc. v. Estate of Warhol, 194 F.3d 323, 341 (2d Cir. 1999) ("Although, in light of our disposition of this appeal, we need not address whether such unclean hands may preclude the imposition of [*13] sanctions, we observe that a court considering sanctions can and should consider the equities involved before rendering a decision.")."
 

 

The statute of limitations exists in part because of the human need to get things behind us.  For commerce and (in general) life to keep on the law imposes a bright-line, specific period of time, after which it’s just too late.  To be fair, even when some are disenfranchised, its a good idea.

In legal malpractice, the statute of limitations is 3 years.  An exception to the strict time-keeping analysis is that of of continuous representation.  Here is an example and an explanation.

 Hadda v Lissner & Lissner LLP    2012 NY Slip Op 06736    Decided on October 9, 2012   Appellate Division, First Department   "Defendants made out a prima facie showing that the three-year statutory limitations period (CPLR 214[6]) expired before this legal malpractice action was commenced in July 2010. Plaintiffs failed to raise an issue of fact whether the doctrine of continuous representation applied here to toll the limitations period (see Glamm v Allen, 57 NY2d 87, 94 [1982]; CLP Leasing Co., LP v Nessen, 12 AD3d 226 [1st Dept 2004]). The only evidence plaintiffs submitted on this issue was an affidavit by the husband of one of the plaintiffs, not a party to plaintiffs’ retainer agreement with defendants, stating that he spoke to the individual defendant four times between January and May 2007. Even assuming the husband had the authority to speak for plaintiffs, the intermittent telephone contact between himself and defendants does not constitute "clear indicia of an ongoing, developing and dependent relationship between the client and the attorney" or of "a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim" (see Matter of Merker, 18 AD3d 332, 332-333 [1st Dept 2005] [internal quotation marks omitted])."

 

It’s often said to us that a predecessor attorney was corrupt, or "took" the money, or was "bought."  We’ve yet to see direct evidence of attorney corruption, but the case of AMY R. GURVEY, Plaintiff-Appellant, -v.- COWAN, LIEBOWITZ & LATMAN, P.C., CLEAR CHANNEL COMMUNICATIONS, INC., LIVE NATION, INC., INSTANT LIVE CONCERTS, LLC, NEXTICKETING, INC., WILLIAM BORCHARD, MIDGE HYMAN, BAILA CELEDONIA, CHRISTOPHER JENSEN, DALE HEAD, STEVE SIMON, MICHAEL GORDON, and SUSAN SCHICK, Defendants-Appellees.

Nos. 09-2185-cv(L), 10-4111 (Con) UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 462 Fed. Appx. 26; 2012 U.S. App. LEXIS 2737; 2012-1 Trade Cas. (CCH) P77,794 brings up some interesting issues.  Did the law firm misappropriate her trade secrets and then give them to other clients for profit?

"However, we vacate the District Court’s judgment to the extent that it dismissed Gurvey’s claims for attorney malpractice and breach of fiduciary duty against the Cowan defendants. Construing the TAC liberally, accepting all the factual allegations in the complaint as true, and drawing all reasonable inferences in Gurvey’s favor, see Bell Atl. Corp., 550 U.S. at 570, we conclude that Gurvey stated a plausible claim by alleging that the defendants used the information given to them as part of a confidential attorney-client relationship to their own advantage by disclosing it to other clients who then profited therefrom to Gurvey’s detriment, see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 10, 865 N.Y.S.2d 14 (1st Dep’t 2008). 8 We therefore remand the cause for further proceedings before the District Court on these claims.

FOOTNOTES

8 The plausibility of this argument is bolstered by Gurvey’s allegation that Cowan withdrew from representing Gurvey before the United States Patent and Trademark Office due to what Cowan allegedly termed a "conflict of interest."

 

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]). "