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

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

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

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

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

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

Law firm is retained by A and knows that A and B have a contractural relationship. During the representation A notifies the law firm that if the case is settled some money will be given to B. By the time that the case is actually settled, A rescinds the advice and tells the law firm to give all the money to A and none to B. Does B have a cause of action against the law firm for non-payment?

In Ulu v Turkotrans Intl. Transp. Co., Ltd   ;2011 NY Slip Op 31803(U) ; Sup Ct, NY County; Judge: Barbara R. Kapnick sets the rules:
"Next, the third cause of action for breach of contract alleges that "defendants have breached their agreement to pay the Balance Due to Plaintiff from the Settlement Amount." (Compl. ¶ 34.) Defendant Law Firm argues that if plaintiff is alleging a breach of a contract between himself and the Law Firm, the claim fails because plaintiff never had an agreement directly with the Law Firm with respect to the monies at issue in this case, or any matter relevant thereto, and that plaintiff has not provided any evidentiary support for the existence of such an agreement. If on the other hand, plaintiff is alleging a breach of a contract that existed between himself and Sensoz/Turkotrans, then the defendant argues that the claim cannot stand as against the Law Firm, because the Law Firm was not party to such an agreement. In his motion papers, plaintiff argues that an agreement
existed between plaintiff and the Law Firm, based on a series of emails, which required the Law Firm to transfer a portion of the settlement funds to plaintiff. Plaintiff cites the following deposition testimony of Mr. Vengrow, to show that there was a contract between plaintiff and the Law Firm:

Plaintiff also argues that he performed all of his obligations under the alleged agreement by paying the legal fees and expenses, but that t h e Law Firm failed to perform when it declined to transfer a portion of the settlement funds to him and that he sustained damages as a result. The issue here is whether a contract was actually formed between plaintiff and the Law Firm by virtue of the e-mail
communications between the parties and/or plaintiff’s payment of legal fees. "The elements of a breach of contract claim are formation of a contract between the parties, performance by the plaintiff, the defendant’s failure to perform, and resulting damage (citation omitted) .

The requirements for the formation of a contract are at least two parties with legal capacity to contract, mutual assent to the terms of the contract and consideration. 2 P J I 4:l at 638-39 (2011) ; see also Maas v . Cornell Univ . , 94 NY2d 8 7 , 93-4 (1999)* Consideration exists if
there is "a benefit to the promisor or a detriment to the promisee" and "it is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him." Weiner v. McGraw-Hill, I n c . , 57 NY2d 458, 464 (1982) (internal citations omitted). In the instant case, the February 28th E-mail is clearly not
a contract between Ulu and the Law Firm; it is a communication from Sensoz to the Law Firm, which confirms Sensoz’s instructions to the Law Firm. To the extent that plaintiff is alleging that there was an o r a l agreement between himself and the Law Firm, the Court rejects this contention as well, finding that Ulu did not receive consideration from the Law Firm for his payment of the legal fees.

There is no evidence that Ulu paid the legal fees in exchange for either (1) a promise that the Law Firm would do something for him; (2) the Law Firm had done something for him; or (3) the Law Firm’s forbearance of any acts. See Weiner v. McGraw-Hill, Inc., supra at 464. Accordingly, the Court finds that the Law Firm has established its entitlement to summary judgment dismissing the
fourth cause of action, insofar as it is pled against it.
 

Attorney fee suits lead to interesting further proceedings. An oft cited piece of advice at CLEs is that attorney fee suits invite legal malpractice counterclaims. Here is one. They do not always succeed. However, was it worth the $6000 fee case?

In Richard A. Kraslow, P.C. v LoGiudice ; 2011 NY Slip Op 50823(U) ; Appellate Term, Second Department. Attorney represented client in a divorce and spouse died during the proceedings. Client then participated in the Surrogate’s court case, and alleges big losses there. "Plaintiff and defendant had executed a retainer agreement, dated January 28, 2002, which governed the legal services rendered during the matrimonial action. They did not execute another retainer agreement for the Surrogate’s Court action. Plaintiff commenced this action to recover damages for breach of contract and unjust enrichment after defendant had failed to pay for the legal services which plaintiff had rendered in connection with the Surrogate’s Court action.

Defendant answered and, in addition to interposing various affirmative defenses, asserted the following counterclaims: first, the matrimonial action and retainer agreement had terminated on April 15, 2002, upon the death of defendant’s wife, whereupon the parties had failed to execute a subsequent agreement; second, plaintiff had failed to timely file a right of election against defendant’s wife’s estate, resulting in damages in the amount of $66,000; third, plaintiff had not challenged the validity of a waiver agreement whereby defendant had disclaimed his status as the sole beneficiary of his wife’s pension benefits, resulting in damages in the amount of $109,000; fourth, plaintiff had improperly advised defendant to stop paying the mortgage on the marital residence, which had resulted in a foreclosure action and damages "in an amount of not
less than $100,000"; fifth, that plaintiff should refund the money that defendant had paid him under the retainer agreement in the amount of $5,090 because the retainer agreement was "legally [*2]deficien[t]"; sixth, plaintiff had been unjustly enriched in the amount of $5,090 because the retainer agreement was "legally deficient"; seventh, that plaintiff should refund the money defendant had paid him after the alleged termination of the retainer agreement in the amount of $6,950; eighth, plaintiff had been unjustly enriched in the amount of $6,950; and ninth, plaintiff was not entitled to damages for any legal services rendered to defendant after April 15, 2002.

Plaintiff moved for summary judgment seeking to dismiss the counterclaims in their entirety. The District Court denied the motion with respect to all the counterclaims except the fourth. Plaintiff appeals from so much of the order as denied the various branches of its motion.

Inasmuch as both the first and ninth counterclaims do not contain a demand for affirmative relief, the District Court should have granted the branches of plaintiff’s motion for summary judgment seeking to dismiss them.

With respect to the second counterclaim, defendant failed to rebut plaintiff’s proof that defendant was unable to establish his legal malpractice action. To succeed on a motion for summary judgment dismissing a counterclaim for legal malpractice, a plaintiff "must demonstrate that the [defendant] is unable to prove at least one of the essential elements of its legal malpractice cause of action" (Boglia v Greenberg, 63 AD3d 973, 974 [2009]; see Kotzian v McCarthy, 36 AD3d 863 [2007]). In response, the defendant is required to show that the plaintiff "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [the defendant] to sustain actual and ascertainable damages" (Mueller v Fruchter, 71 AD3d 650 [2010] [internal citations omitted]).

Plaintiff submitted a sworn affidavit averring that he had reached a favorable tentative settlement with the estate of defendant’s deceased wife in the amount of
$100,000. In response, defendant failed to proffer any evidence that he had sustained actual and ascertainable damages resulting from plaintiff’s decision to pursue one strategy in the Surrogate’s Court action rather than another (Collard & Roe, P.C. v Vlacancich, 6 Misc 3d 17, 18-19 [App Term, 9th & 10th Jud Dists 2004]). Consequently, the District Court should have dismissed the second counterclaim.

With respect to the third counterclaim, defendant failed to rebut plaintiff’s proof that defendant did not establish that he had signed the waiver of pension benefits under mental duress. Likewise, defendant’s fifth and sixth counterclaims have "no merit" because defendant failed to either rebut plaintiff’s proof that the retainer agreement was legally sufficient or specify any legal theory upon which relief could potentially be granted (Ventura v Fischer, 21 Misc 3d 131[A], 2008 NY Slip Op 52124[U], *2 [App Term, 2d & 11th Jud Dists 2008]; see CPLR 3212 [b]). [*3]

Finally, the District Court should have dismissed the seventh and eighth counterclaims because plaintiff’s alleged violation of 22 NYCRR 1215.1, in and of itself, is not a ground for the disgorgement or refund of already paid attorney’s fees (see Jones v Wright, 16 Misc 3d 133[A], 2007 NY Slip Op 51494[U] [App Term, 9th & 10th Jud Dists 2007]; Constantine Cannon LLP v Parnes, 2010 NY Slip Op 31956[U], *16 [Sup Ct, NY County 2010]).

Accordingly, the order insofar as appealed from, is reversed and the branches of plaintiff’s motion for summary judgment seeking to dismiss defendant’s first, second, third, fifth, sixth, seventh, eighth and ninth counterclaims are granted. "

The Third Department gives a nice analysis of the law of "account stated" in its decision, Antokol & Coffin v Myers ;2011 NY Slip Op 06051 ;Appellate Division, Third Department .
 

""’An account stated is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due’" (J.B.H., Inc. v Godinez, 34 AD3d 873, 874 [2006], quoting Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [1993], lv denied 82 NY2d 660 [1993]). An attorney can recover fees on an account stated "with proof that a bill . . . was issued to a client and held by the client without objection for an unreasonable period of time" (O’Connell & Aronowitz v Gullo, 229 AD2d 637, 638 [1996], lv denied 89 NY2d 803 [1996]).

At trial, plaintiff introduced evidence of a retainer agreement between Antokol and defendant as well as unpaid invoices for legal fees dated between September 1995 and December 1996. Antokol testified that these invoices were ordinarily sent to defendant on a monthly basis and that defendant did not object to the bills until plaintiff commenced this action. Defendant testified that she did not remember receiving monthly bills but, in her prior deposition testimony, acknowledged that she thought she had received a bill most months. Although defendant claimed to have had "constant conversations about the bills" with Antokol, and Antokol admitted that he made efforts to get her to pay, including offering a 10% discount in February 1996, he testified that defendant never offered a reason for her refusal to pay the bills. Indeed, with the exception of one specific objection to work completed by one of Antokol’s colleagues, which defendant ultimately agreed to pay, defendant did not claim to have made objections to any specific bill, despite the language at the end of each bill stating, "The above information will be deemed correct unless objection is made within 30 days." Further, defendant admittedly made no written objections to the bills. Under these circumstances, we agree with Supreme Court that defendant’s general claims of verbal refusals to pay did not constitute a specific objection sufficient to defeat plaintiff’s cause of action for an account stated (see Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; J.B.H., Inc. v Godinez, 34 AD3d at 875-876; PPG Indus. v A.G.P. Sys., 235 AD2d 979, 980 [1997]; see also Zanani v Schvimmer, 50 AD3d 445, 446 [2008]). "

"Turning to the adequacy of the services billed for, we agree with Supreme Court that the record demonstrates that plaintiff provided competent representation in a difficult matrimonial matter. Antokol’s failure to establish grounds for divorce in defendant’s favor, albeit clearly a point of frustration for defendant, was irrelevant, as fault did not affect the equitable distribution of marital assets (see Howard S. v Lillian S., 14 NY3d 431, 435-436 [2010]). Defendant’s assertions that Antokol should have presented expert testimony to increase her share of the marital estate and that he was not prepared for trial are counterbalanced by record evidence that Antokol’s decisions were part of his trial strategy and his claims that defendant’s refusal to follow his advice at times interfered with his ability to achieve better results for her. In sum, the record evidence fully supports Supreme Court’s finding that the alleged inadequacies of Antokol’s representation are insufficient to undermine plaintiff’s right to be paid for its services (see Matter of Wapner, Koplovitz & Futerfas v Solomon, 7 AD3d at 916). "
 

Plaintiff is injured while at work as a teacher in NYC and goes to an attorney.  The attorney advises her to bring a Workers’ Compensation Claim, and does so for her.  More than 90 days passes, and lo and behold, it turns out that Teachers in NYC are not covered by WC, and are (must) bring a personal injury claim.  It’s too late for plaintiff.  Is this legal malpractice? 

Supreme Court did not think so.  The Appellate Division, however, did.  Gaskin v Harris   2012 NY Slip Op 06123  Decided on September 12, 2012  Appellate Division, Second Department . 
 

"However, the Supreme Court should not have granted that branch of the defendant’s cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice. To recover damages for legal malpractice, a plaintiff is required to show that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney’s breach of this duty caused the plaintiff to suffer actual and ascertainable damages (see Dombrowski v Bulson, 19 NY3d 347, 350; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; McCoy v Feinman, 99 NY2d 295, 301-302; Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716, 717). When determining a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible [*2]inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87; Marom v Anselmo, 90 AD3d 622, 623), and "may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d at 88; see Berman v Christ Apostolic Church Intl. Miracle Ctr., Inc., 87 AD3d 1094, 1096-1097; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 797). Further, a motion pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Leon v Martinez, 84 NY2d at 88; Robertson v Wells, 95 AD3d 862, 863; Magnus v Sklover, 95 AD3d 837, 837).

Applying these principles here, the complaint, as amplified by the affidavits submitted by the plaintiff, adequately states a cause of action to recover damages for legal malpractice. The plaintiff alleges that the defendant negligently advised her to seek Workers’ Compensation benefits for injuries sustained in the course of her employment as a substitute teacher, when he should have known, as an attorney specializing in this area, that New York City teachers and substitute teachers are not covered by the Workers’ Compensation Law. She further claims that the defendant advised her to pursue a baseless Workers’ Compensation claim instead of litigation, failed to advise her of the deadline for filing a notice of claim, and counseled her against accepting a mediator’s recommended settlement that would have afforded her some compensation for her injuries. Although the documentary evidence submitted by the defendant establishes that he promptly filed a Workers’ Compensation claim on the plaintiff’s behalf, and that the claim was denied on the ground that New York City teachers, including substitute teachers, are not covered by the Workers’ Compensation Law, this evidence does not conclusively establish a defense to the plaintiff’s asserted malpractice claims. Accordingly, the Supreme Court should have denied that branch of the defendant’s cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice (see Magnus v Sklover, 95 AD3d at 837; Ofman v Katz, 89 AD3d 909, 910; Thompsen v Baier, 84 AD3d 1062, 1063). "

Legal malpractice and arbitration, even arbitrations that are on the edge of the legal malpractice case have an uneasy relationship.  Courts are more than willing to dismiss legal malpractice cases because of an earlier arbitration.  It need not have been on the ultimate merits of whether the attorney departed from good and accepted practice.  It may have been over whether the attorney should be awarded any fees, or over whether the attorney should have been permitted to withdraw from the case, and today, the First Department conjured another situation inFeinberg v Boros
2012 NY Slip Op 06114   Decided on September 11, 2012   Appellate Division, First Department .  Now, the question is whether an arbitration between plaintiff and his former business partner limits plaintiff’s right to sue his attorneys for claimed departures after the arbitration. 
 

"At issue on this appeal is whether the defendant members of a law firm committed legal [*2]malpractice by not advising the plaintiff, Herbert Feinberg, that an agreement with his former business partner to limit the collateral estoppel effect of an arbitration award would have been enforceable in Feinberg’s lawsuit against a third party. As set forth in greater detail below, precedent, sparse as it is on this issue, nevertheless mandates that such limiting agreements are not carved-out exceptions to normal collateral estoppel principles. We therefore find that where, as here, an issue has been fully and vigorously litigated, no limiting agreement as to an arbitration award may bar the assertion of a collateral estoppel defense by a third party as to that issue. "

"It is well established that the doctrine of collateral estoppel bars a litigant from disputing an issue in another proceeding when that issue was decided against the litigant in a proceeding in which he had a "full and fair opportunity" to contest the matter. Schwartz v. Public Adm’r of County of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 959, 246 N.E.2d 725, 728 (1969). Collateral estoppel preserves party and judicial resources by preventing relitigation of matters that have already been resolved. Further, it [*6]prevents inconsistent results. 24 N.Y.2d at 74, 298 N.Y.S.2d at 962. Collateral estoppel can be asserted in a new case by a nonparty to the original proceeding. B.R. DeWitt, Inc. v. Hall, 19 N.Y.2d 141, 147, 278 N.Y.S.2d 596, 601, 225 N.E.2d 195, 198 (1967). Moreover, collateral estoppel principles "apply as well to awards in arbitration as they do to adjudications in judicial proceedings." Matter of American Ins. Co. [Messinger-Aetna Cas. & Sur. Co.], 43 N.Y.2d 184, 189-190, 401 N.Y.S.2d 36, 39, 371 N.E.2d 798, 801 (1977), citing Rembrandt Indus., v. Hodges Intl., 38 N.Y.2d 502, 381 N.Y.S.2d 451, 344 N.E.2d 383 (1976).

Confusion has arisen in this case because the Messinger Court also held, seemingly inconsistently, that "[i]n circumstances involving arbitration, … the parties themselves can formulate their own contractual restrictions on carry-over estoppel effect." Messinger, 43 N.Y.2d at 194, 401 N.Y.S.2d at 42. On closer analysis, however, it is clear that the confusion is not warranted.

The ability of parties to formulate their own contractual restrictions as to the estoppel effect of arbitration awards is not, in reality, a carved-out exception to normal collateral estoppel principles. The idea of entering into a contractual limitation was established by the Messinger Court in the context of a dispute arising from an arbitration between insurance carriers. Messinger, 43 N.Y.2d at 187, 401 N.Y.S.2d at 37. The Court recognized that arbitration hearings may be "summary, pro-forma proceeding[s]" and that the opportunity "for summary dispositions should not be inhibited by automatically according a binding estoppel effect to the first determination." Messinger, 43 N.Y.2d at 191, 401 N.Y.S.2d at 42. Hence, the Court concluded that in arbitration "the parties themselves can formulate their own contractual restrictions on carry-over estoppel effect." 43 N.Y.2d at 193, 401 N.Y.S.2d at 42. However, the Court cautioned that "[t]hey cannot, of course, impose similar limitations which would impair or diminish the rights of third persons." Messinger, 43 N.Y.2d at 194, 401 N.Y.S.2d at 42. This latter caution by the Court has been characterized as dicta particularly in view of two appellate division determinations that appeared to uphold agreements that imposed such a limitation on third parties. See Kerins v. Prudential Prop. & Cas., 185 A.D.2d 403, 585 N.Y.S.2d 637, 638(3rd Dept. 1992); also Matter of State Farm Ins. Co. v. Smith, 277 A.D.2d 390, 717 N.Y.S.2d 210 (2d Dept. 2000). "

The answer to today’s question is "quite a ways." Without further comment, here is Breytman v Schechter ; 2011 NY Slip Op 51375(U) ;  Supreme Court, Kings County   Schack, J.
" In my prior February 8, 2011 decision and order, I granted defendants summary judgment and dismissed the instant action with prejudice. However, despite the dismissal with prejudice, plaintiff BREYTMAN now moves for various relief, including what the Court deems a motion to reargue. The Court, for reasons that will be explained, finds the instant motion "frivolous." It is completely without merit in law and undertaken primarily to harass and maliciously injure defendants SCHECHTER and the Court. After giving plaintiff BREYTMAN a reasonable opportunity to be heard and reviewing all papers submitted and the oral argument transcript, the instant motion is denied. Costs and sanctions are imposed upon plaintiff BREYTMAN for frivolous conduct."
 

"The following are some examples of plaintiff BREYTMAN’s outrageous and offensive statements. Plaintiff begins his affidavit in support of the motion by stating, in ¶ 1, "I Alexander Breytman the last of the Mohicans have chutzpah to make this affidavit in support and against dishonorable Arthur M. Schack Universe and Donald Schechter Galaxy and Karl Marxist and Fredrick Engels’ fuzzy Machiavellian order selling snake oil, legally deficient full of holes like Swiss cheese where I can fly space shuttle through [sic]." Further, at ¶ 5, plaintiff informs the Court "Your order is unconstitutional and I do not have to follow, lead or get out of the way, you just overruled by Pro se, how you like them apples [sic]." Then, at ¶ 11, he states, "I am immune from your dishonorable illegal order that is unconstitutional and therefore is null and void and is in effect under lock and key [sic]." Plaintiff, in ¶ 18, calls the Court "Your dishonor," claims that the Court is "both a communistic argument or fascist which for all intent and purposed are the same dam thing [sic]" and informs the Court that "You and your compadres are the problem that plagues this world and not a solution kapish'[sic]." Moreover, plaintiff states: in ¶ 26, "Your dishonorable unconstitutional hypocritical order is meaningless and I do need to comply at all [sic]"; in ¶ 27, "Your dishonor futile attempt to muzzle me only prolongs my pain and suffering [sic]"; and, in ¶ 31, "I am not your sheep for a slaughter. You try but will fail to set my world on fire rather it is your universe that will burn . . . I will rise like Phoenix out of ashes and will reverse your malicious Swiss cheese order . . . You and Schechter only prolong my pain and [*5]suffering and this I cannot and will not live with. I will do my crying in the rain. Donald Schechter Eureka moment is short lived [sic]."

Moreover, plaintiff did an internet search about the Court, reciting personal information about myself and my family that appeared in the New York Times on August 31, 2009, which is totally irrelevant to the instant motion. For example, he wrote, in ¶ 16, "You were a union representative and once walked a picket line with his wife . . . who was a teacher, too . . . Ooh schools in US suuuuuucccccckkkkkkssssss . . . You are not supposed to be picketing with UFT and quiet unethical conduct [sic]." Then, in oral argument, plaintiff attacked me for engaging in picketing, which occurred years before I became a judge, let alone a Member of the Bar. It is not a secret that years before my election as a judge I was a New York City teacher, United Federation of Teachers Chapter Chairman and on strike in 1968 and 1975. Yet, at p. 26, lines 5 – 22, plaintiff engaged in slander, equating events of 1968 and 1975 with the present"

"Clearly, the pattern of plaintiff BREYTMAN’s conduct in the instant action is subject to costs and sanctions. Plaintiff’s arguments in his papers, in support of the instant motion, and in the June 14, 2011 oral argument are replete with threatening, defamatory and malicious statements about defendants SCHECHTER and the Court. They are frivolous and "completely without merit in law or fact." Plaintiff BREYTMAN failed to make any specific allegations that the Court misapprehended or overlooked any matters of fact and law. The instant motion is but another example of plaintiff’s continued harassment of defendants and abuse of the judicial process, with the addition of personal invective and animus directed at the Court. The instant motion prolonged this litigation and attempts "to harass or maliciously injure" defendants SCHECHTER and the Court. In this time of budgetary cuts, combined with increased caseloads, the Court does not need to waste its scarce resources to be the arena for plaintiff BREYTMAN’s personal vendettas against defendants and the Court.

Therefore, based upon the totality of plaintiff BREYTMAN’S frivolous conduct in making the instant motion, the Court finds it is appropriate to award costs of $1,700.00 to defendants SCHECHTER for 10 hours of attorney’s fees at $170.00 per hour. Further, for the waste of judicial resources and "to deter vexatious litigation and dilatory or malicious litigation tactics" by plaintiff BREYTMAN, the Court, in its discretion, imposes financial sanctions of $2,500.00 upon plaintiff BREYTMAN
 

Attorneys frequently use LLPs or PCs as their corporate identity. Does this really make a difference in small or single attorney settings? The short answer is: "yes!" in Teodorescu v Resnick & Binder, P.C. ;2010 NY Slip Op 20400 ;Supreme Court, Kings County ;Kurtz, J. we see what happens when plaintiff fails to name the individual attorneys,
 

"During the approximately two years this action was stayed, the attorneys who formed the defendant professional corporation, David Joseph Resnick and Serge Yakov Binder (hereinafter "Resnick" and "Binder"), were both disbarred. Plaintiff now moves to have the stay vacated and this action placed on the trial calendar and for leave to amend the summons and complaint to add Resnick and Binder as individual defendants pursuant to CPLR §203(b), since the statute of limitations as to these defendants has already expired.

A plaintiff seeking the benefit of the relation-back doctrine must establish the existence of a mistake concerning the defendant’s identity that prevented plaintiff from serving that defendant before the statute of limitations expired. See Bryant v. South Nassau Communities Hosp., 59 AD3d 655, 656 (2d Dept 2009). Evaluation of an alleged mistake then turns on whether the mistake interfered with plaintiff’s ability to name all of the proper defendants prior to expiration of the limitation period. Compare Monir v. Khandakar, 30 AD3d at 489, supra (finding plaintiff’s failure to add a professional corporation to her medical malpractice claims against the defendant dentist to be a mistake based upon her lack of knowledge as to the corporation’s existence) with Contos v. Mahoney, 36 AD3d 646, 647 (2d Dept 2007) (declining to apply the relation-back doctrine where plaintiff failed to sue the defendant lessor in a timely manner, despite receiving a copy of a Lease Termination Statement identifying Nissan as the [*3]lessor prior to the expiration of the limitation period.) Under these guidelines, when a plaintiff is aware of the defendants’ potential liability and deliberately decides not to assert a claim against them, there is no mistake and thus no relation-back. See Buran v. Coupal, 87 NY2d at 181, supra. Under such circumstances, a "plaintiff should not be given a second opportunity to assert that claim after the limitations period has expired (citations omitted)." Id. The Court concludes that in order for plaintiff to receive the benefit of the relation-back doctrine, all three prongs enunciated in Brock, as modified by the Court of Appeals in Buran, must be satisfied.

The Court finds that plaintiff has failed, however, to satisfy the third prong under the Brock test because plaintiff knew of the proposed defendants’ potential liability at the time she filed a legal malpractice action against defendant. Finally, since the relation-back doctrine as a whole hinges on the sufficiency of notice to the proposed new defendants within the statutory limitations period, the correct inquiry is not whether Resnick and Binder were aware of the charges brought by plaintiff against defendant, but whether such knowledge could reasonably have led them to the conclusion that they were intentionally omitted as parties to the action and were, thus, no longer at risk of litigation. "