The decision in this case is straightforward, but gives practitioners little practical advice on how to word and present an expert’s affidavit. In Giardina v Lippes, 2010 NY Slip Op 06834;; Appellate Division, Fourth Department we see two things. The first is that the two summary judgment motion rule is not really a rule at all; it is really just guidance to the Court. Two motions for summary judgment might be entertained after all.
 

The second issue we see is that of the quality of expert opinions in summary judgment. Once, the rule was that courts scrutinize whether movant demonstrates prima facie entitlement to summary judgment, and if so, whether opponent demonstrates material questions of fact that continue to require resolution by the trier of fact.

The quality of an expert’s opinion was sacrosanct, since facts may not be debated in a motion for summary judgment. Here, and in many other cases the kicker is when a court feels permitted to rule out the expert’s opinion as "conclusory." In this case, as in many other appellate decisions, no time is taken to explain why the particular affidavit was "conclusory" rather than permissible. What makes the difference?

Here, defendant’s expert presented a "good" affidavit, and plaintiff’s expert presented a "conclusory" affidavit in a lawn care products liability case. How does one tell the difference?
 

This is a convoluted case, which started as a products liability-fall from a ladder- case, morphed into a legal malpractice case, went to trial and was prematurely dismissed during plaintiff’s case, was reversed on appeal and now comes back on a preclusion motion. The problem in Burbige v Siben & Ferber   2012 NY Slip Op 32086(U)   July 30, 2012   Sup Ct, Nassau County   Docket Number: 010334/07   Judge: Randy Sue Marber is that there is no ladder.  In this case, no ladder, no proof that the ladder was defective. Whose fault is it?

"As to the order of preclusion, this Court begins with noting that, here, the Appellate Division has not only directed a new trial but has specifically set forth the evidentiary issue inadequately established at the original trial by the Plaintiff; to wit plaintiff() fail ( ed) to make an offer of proof that he would have been successful in the underlying products liability action by offering expert testimony that the ladder from which he fell was defective. Consequently, the issue becomes whether the Plaintiff should be permitted to now present evidence that it could have properly presented at the first trial, the expert affidavit necessary to establish his success in the underlying products liability action. 

Based upon the papers presented for this Court’ s consideration, this Court finds that the Plaintiff s failure to disclose his expert was in fact willful and intentional. Indeed the Appellate Division found that the Plaintiff s offer of proof was inadequate and wholly insufficient due to the absence of an expert affidavit demonstrating the merits of the underlying products liability action. Perhaps more critical is the fact that counsel for the Plaintiff, in support of his cross-motion infra again states that "the case law and the circumstances do not war ant the plaintiff to obtain an expert" (Aff. In Supp. Of Cross- Motion 6). Furthermore, the Plaintiff has failed entirely, even at this juncture in opposition
to the Defendants s instant motion, to proffer a reasonable excuse, under the circumstances
for his delay in furnishing name and affidavit of his expert (CPLR ~ 3101 (d) (I); Wartski v. C.W Post Campus of Long Is. Univ. 63 A.DJd 916 917 (2 Dept. 2009)). Moreover the Defendants wil clearly be prejudiced should this Court determination be to permit the Plaintiff to now submit the name and testimony of their expert. Although a new trial has been granted by the Appellate Division and further that the Appellate Division has specifically set forth the evidentiary issue inadequately
established at the original trial, the fact is that the Plaintiff has, nonetheless, failed to meet his burden, under CPLR ~ 3101 that would sufficiently oppose the Defendants’ entitlement to preclusion. In fact, the Plaintiff has even failed to establish his burden under 22 NYCRR 202.21 (d) that would permit this Court to award post-note of issue discovery (cf Scanga Family Practice Assocs. of Rockland, P. c., 2006 WL 6822760 (Sup. Ct. Rockland 2006); Bierzynskiv. New York Central Railroad Co. 59 Misc. 2d 315 (Sup. Ct. Erie 1969) aff’ d29 2d 804 (1971) rearg. denied 30 N. 2d 790 (1972)).

Counsel for the Plaintiff bases his entire motion on a spoliation of the evidence argument; that is, counsel for the Plaintiff submits that allegedly for more than 16 years counsel for the Defendants, failed to inspect and preserve the defective ladder, failed to  obtain expert reports with respect to the defectively manufactured ladder, and effectively destroyed the key physical evidence of the defective ladder prior to the commencement of the Plaintiff s legal malpractice action. Spoliation of evidence is a factual and legal question in this malpractice case involving an underlying products liability claim. Spoliation of evidence occurs where a litigant intentionally or negligently disposes of crucial items of evidence before his or her adversaries have any opportunity to inspect them (Kirkland v. New York City Housing Authority, 236 A. 2d 170 (1st Dept. 1997)).

The underlying action was one sounding in products liability. The Plaintiff claims herein that the product that was alleged to be defectively designed or manufactured the ladder, was negligently or intentionally lost or destroyed subsequent to his accident and before anyone had an opportunity to inspect it. Although the Plaintiff charges his former attorneys in the underlying action, the Defendants herein, with spoliation of evidence, the Plaintiff makes no attempts to show that the ladder in question was ever in the possession of the Defendants or that it existed or was available when they were retained. "

How far may an attorney go when dealing with a client before the line is crossed and  extreme emotional distress may be charged?  InBlumencranz v Botter  2012 NY Slip Op 32089(U)
July 27, 2012  Sup Ct, Nassau County  Docket Number: 15489/11  Judge: Joel K. Asarch  we see behavior that is "utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law. Insofar as plaintiff includes alleged professional failures" damages for the intentional infliction of emotional distress are not recoverable in  a legal malpractice action Epifano v. Schwartz 279 AD2d 501 , 503 (2d
Dept 2001)), 

"Plaintiff, Lisa Blumencranz, retained the services of defendant, Allan S. Botter, to represent her in a divorce proceeding. Blumcrantz alleges that her former husband presented her with the names of two attorneys and advised her to choose one of them "if she wished the matter to proceed smoothly . He allegedly warned that if she retained an attorney of her own choosing, the choice would result in greater difficulty" for her. Blumencranz avers that her former husband had "been
in contact" with the attorney she chose, defendant Alan S. Botter, before she retained him. He had reached "an understanding" with Botter that he would be "paid directly by her then-husband" for
representing her.

"She alleges that Botter "belittled and demeaned" her, and mocked her when she begged" for changes to the child custody agreement. She alleges that the parties had joint custody but final decisions were with the husband, and that no set holiday schedule was included. The agreement also allowed the children "to decide when and if’ they would speak to her. She alleges that her attorney told her that is how things were and to "deal with it.

Addressing the emotional injure causes of action, the tort of intentional infliction of emotional distress predicates liability upon the basis of "extreme and outrageous conduct which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society (Freihofer v. Hearst Corp. 65 NY2d 135 (1985)). The requirements are "rigorous, and difficult to satisfy" (Howell New York Post Co. 81 NY2d 115, 122 (1993)), as even conduct which may be characterized as "unacceptable and socially repugnant" does not "rise to the level of atrocity" (Shea v. Cornell University, 192 AD2d 857 (3d Dept 1993)). The wrongful conduct must consist of more than "insults" or "indignities" and must be so "shocking and outrageous" as to "exceed all reasonable bounds of decency (Nestlerode v. Federal Ins. Co., 66 AD2d 504 508 (4 Dept 1979), app denied 48 NY2d 604 (1979)). An example of conduct which survived the difficult threshold for atrocious conduct may be found in Bunker Testa, 234 AD2d 1004 (4 Dept 1996) There the complaint alleged inter alia [* 4]  yelling and gesturing obscenely at plaintiff , following her home, refusing to leave the premises and significantly, "following her children. .. and telling her that he knew where the children went to school and when they got out of school" (Id).  Here, the nature of plaintiff’s alleged complaints in the cause of action for the intentional infliction of  emotional harm amount to insult emotional distress and inadequate legal representation. The alleged conduct, while utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law.  Insofar as plaintiff includes alleged professional failures "( d)amages for the intentional infliction of emotional distress
are not recoverable in a legal malpractice action" (Epifano v. Schwartz 279 AD2d 501 , 503 (2d
Dept 2001)),. 

Something went really wrong with the settlement in a case against A& T Healthcare, LLC by the New York Healthcare Facilities Worker’s Compensation Trust.  Settlement (and a release) were followed by several other cases, in which A & T had to pay significant money.  It sued its attorneys in the case of A & T Healthcare, LLC v Markstein    2012 NY Slip Op 51513(U)   Decided on August 7, 2012   Supreme Court, Rockland County   Jamieson, J.    Plaintiff v. Defendant aside, now defendant seeks to bring in an "expert" it relied upon, on a theory of contribution and indemnity.  Or should it be negligence.  The difference is important because it is more than 3 years, but less than 6 years.
 

"Now, third-party defendants seek to dismiss the third-party complaint on statute of limitations grounds. They argue that although framed as claims for contribution and indemnification, which have a six-year statute of limitations, third-party plaintiffs’ claims are really for malpractice (which has a three-year statute of limitations). Third-party plaintiffs, of course, disagree. Third-party plaintiffs argue that "a plain examination of the Third-Party Complaint reveals that the claims sets forth against the Third-Party Defendants are for contribution and [*3]indemnification not for professional malpractice." Plaintiff agrees with this assertion, arguing that "the limitations period for a claim for contribution/indemnification is six years regardless of the nature of the actual allegation of wrongdoing and its contaminant [sic] limitations period."

Having reviewed the law on claims for contribution, it appears that the Court need not reach the issue of the statute of limitations for the cause of action for contribution in this case, which is essentially for breach of contract. Structure Tone, Inc. v. Universal Services Group, Ltd., 87 AD3d 909, 929 N.Y.S.2d 242 (1st Dept. 2011) (subcontractor’s alleged tort claims were really based on contract). Contribution "is unavailable in the context of a contract action. As the Court of Appeals has noted, purely economic loss resulting from a breach of contract does not constitute injury to property’ within the meaning of New York’s contribution statute.’" Pilewski v. Solymosy, 266 AD2d 83, 698 N.Y.S.2d 660 (1st Dept. 1999). The First Department has expanded on this holding, in the case of Children’s Corner Learning Center v. A. Miranda Contracting Corp., 64 AD3d 318, 879 N.Y.S.2d 418 (1st Dept. 2009). In that case, the Court dismissed a third-party claim for common-law contribution because the underlying claim sought purely economic damages.

Turning to the Second Cause of Action, which seeks indemnification from Mr. Gale and National Risk Services, Inc., the complaint states that Mr. Gale "held himself out as an expert. . . [and third-party plaintiff] relied on the expert advice provided by Monte J. Gale in recommending that A & T agree to execute the Settlement Agreement. . . ." Based on this allegedly negligent advice, A & T entered into the ill-fated Settlement. The complaint states that it seeks indemnification from Mr. Gale should third-party plaintiffs be found liable for malpractice. Third-party defendants argue that this cause of action is time-barred, because it really is seeking damages for malpractice.

Having read all of the papers, the Court finds that third-party defendants have not adequately addressed the issue of whether this claim is actually one for malpractice or negligence,[FN2] rather than a claim for indemnification. Moreover, the motion fails to address the issue of whether a timely indemnification claim can lie when it is based on malpractice or negligence claims which would be untimely. See generally Germantown Cent. School Dist. v. Clark, Clark, Millis & Gilson, AIA, 294 AD2d 93, 743 N.Y.S.2d 599 (3d Dept. 2002) ("Permitting plaintiffs to add these tort claims by recasting them in indemnification and restitution language would improperly circumvent the Statute of Limitations’ bar on these claims."). Accordingly, the Court denies third-party defendants’ motion with respect to the Second Cause of Action, without prejudice. "

Attorneys can easily be substituted in and out of cases, and personal injury matters are no exception. When client goes from attorney 1 to attorney 2 to attorney 3 the outlook for the case may sometimes be good, and in this case bad. Client was involved in a car accident, and hired attorney 1 to handle the case. Attorney 1 did so, but apparently never looked to see who owned the car. Owner was a rental car company, with apparent unlimited liability and assets. Attorney 2 takes over the case and finds out at a deposition that defendant did not own the car. Attorney 2 takes their time and does nothing. Attorney 2 is substituted out and Attorney 3 immediately makes a motion to add the owner. Attorney 3 does not succeed. is there a good cause of action against attorney 2? The statute of limitations is long over for attorney 1. Answer ? No. in Snolis v Clare
2011 NY Slip Op 01455 ;  Appellate Division, Second Department
the Court writes:

"The plaintiffs failed to demonstrate their prima facie entitlement to judgment as a matter of law because they failed to establish that any negligence on the part of the defendants in failing to move for leave to amend the complaint in the personal injury action to add the owner as a defendant, immediately upon learning of the owner’s identity, was the proximate cause of their alleged damages (see Greene v Sager, 78 AD3d 777; Erdman v Dell, 50 AD3d 627; see also Buran v Coupal, 87 NY2d 173, 180; Flederbach v Fayman, 57 AD3d 474). Accordingly, the Supreme Court properly denied the plaintiffs’ motion.

The Supreme Court improvidently exercised its discretion in denying, as untimely, that branch of the defendants’ cross motion which was for summary judgment dismissing the complaint insofar as asserted against them. While the defendants’ cross motion was made more than 120 days after the note of issue was filed and, therefore, was untimely (see Brill v City of New York, 2 NY3d 648), an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds (see Grande v Peteroy, 39 AD3d 590, 592; Lennard v Khan, 69 AD3d 812, 814; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497). In such circumstances, the issues raised by the untimely cross motion are already properly before the court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the merits of the untimely cross motion (see Grande v Peteroy, 39 AD3d at 592). Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party (see CPLR 3212[b]).

The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the legal malpractice cause of action insofar as asserted against them by demonstrating that any negligence on their part did not proximately cause the plaintiffs’ alleged damages (see Von Duerring v Hession & Bekoff, 71 AD3d 760). It is true that the more than one-year delay in moving for leave to amend the complaint in the personal injury action to add the owner as a defendant, which was attributable to the defendants’ failure to seek that relief, prejudiced the owner and, thus, was a sufficient basis for denying the motion for leave to amend the complaint in the personal injury action (see Snolis v Biondo, 21 AD3d 546). However, the defendants demonstrated that even if they had expeditiously made such a motion in April 2003, immediately upon learning of the owner’s identity, the motion could not have been granted. "

We were recently asked whether an Expert, testifying in a legal malpractice case can commit legal malpractice during testimony in the case. We discussed whether there was an attorney-client relationship, and whether "absolute immunity" for in-court testimony applied. Now, Levine v Harriton & Furrer, LLP ; 2012 NY Slip Op 01401 ; Appellate Division, Third Department discusses the same subject, this time for an engineer.
 

"Plaintiff, a licensed professional engineer, was retained to provide services in connection with a personal injury claim in the Court of Claims against the State of New York arising from an alleged highway defect. The claim was subsequently transferred to defendant, a law firm in the Village of Round Lake, Saratoga County, and plaintiff was again retained. The parties initially proceeded upon an oral agreement. In February 2006, plaintiff submitted a written retainer agreement to defendant setting forth a retainer fee and establishing hourly charges and fees, among other things. Defendant paid the retainer fee and, on the claimant’s behalf, returned the agreement to plaintiff, without signature. Plaintiff subsequently provided services and submitted bills periodically to defendant. Defendant made payments through December 2007, when the trial was completed; thereafter, defendant made no further payments but did request continuing services, which plaintiff provided. In May 2008, the Court of Claims rendered a determination dismissing the claim upon the ground that negligence had not been proven. Plaintiff allegedly continued to submit invoices for payment of the outstanding balance due through October 2008, but received no response. After plaintiff’s counsel contacted [*2]defendant, defendant responded in writing in November 2008, refusing to pay and alleging that the unfavorable determination of the claim had resulted from plaintiff’s professional malpractice. "

"Defendant’s objections were not primarily grounded in the particulars of the invoices; instead, the central contention is that the failure to pay for plaintiff’s services was justified by his alleged malfeasance. However, this claim was not supported by an expert affidavit opining that plaintiff’s services "deviated from accepted industry standards" and that this failure proximately caused the loss of the claimant’s case (Columbus v Smith & Mahoney, 259 AD2d 857, 858 [1999]; see Travelers Indem. Co. v Zeff Design, 60 AD3d 453, 455 [2009]). Contrary to defendant’s claim, the decision of the Court of Claims does not replace such an expert opinion. Although that court criticized some of plaintiff’s methods, it made no finding as to his competence beyond the requisite assessment of the credibility of the conflicting expert opinions. The mere fact that the Court of Claims found plaintiff’s opinions less credible than those of the opposing experts is insufficient to present a factual issue as to whether his performance was substandard; such determinations are necessarily made whenever the opinions of experts are in conflict. Further, the court explicitly stated that its determination was not based solely on credibility, but also on its factual conclusion that the subject accident was proximately caused by driver error, and not by a highway defect."
 

It’s well understood that Courts closely scrutinize the underlying cases when a legal malpractice matter comes up for a dismissal motion.  Jean-Baptiste v Law Firm of Kenneth B. Mock ;  2012 NY Slip Op 05913   Decided on August 8, 2012   Appellate Division, Second Department  is no exception.  The short decision states in cursory fashion: " The Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging legal malpractice. The documentary evidence conclusively established that the plaintiff does not have a viable claim of legal malpractice (see Walker v Kramer, 63 AD3d 723; Faden v Satterlee Stephens Burke & Burke, LLP, 52 AD3d 652). "

When one takes a look at the Supreme Court decision, the matter comes into closer focus. This was a landlord-tenant case.   "Homere, as petitioner landlord represented by the defendant, commenced a nonpayment proceeding in 2008 in the First District Court, Hempstead Part, County of Nassau, Landlord and Tenant against Janice Henderson, as respondent tenant. District
Court Judge Scott Fairgrieve found, the respondent having been duly served with the  notice of petition and petition, the allegations in the petition were established. Judge Fairgrieve noted the parties entered into a settlement stipulation, and subsequently an affirmation of non-compliance was filed with the Clerk of that Court, so upon the motion of the defendant Judge Fairgrieve directed judgment entered for Homere. Judge Fairgrieve also determined no rent nor attorneys ‘ fees was due and owing to Homere. On December 2, 2008, the Clerk of First District Court entered a  judgment of possession of leased premises, to wit 196 Long Beach Road, 1 st floor, Hempstead, New York to Homere with a business address of 11 Oak Avenue, Hempstead, New York. That
judgment directed the issuance of a warrant of eviction to remove the respondent tenant and all persons from the demised premises, and place Homere in full possession, and it severed the landlord tenant relationship (see RPAPL 749). In 2009, Homere commenced an action in the First District Court, Hempstead Part County of Nassau under index number 1194/09. On September 16 2009, District Court Judge Michael A. Ciaffa granted Homere counsel’s motion , the defendant here, to withdraw there. Homere subsequently retained Chantel Jean Baptiste, Esq. , as counsel in
that civil action. On January 7, 2010, Judge Ciaffa granted a motion to amend the complaint adding the plaintiff husband here as a pro se plaintiff there while granting leave to Chantel Jean Baptiste, Esq., Homere s counsel to withdraw there. On April 14  2010, Judge Ciaffa dismissed that District Court action, and found the plaintiff husband here was not a proper party  there. Judge Ciaffa stated on the record  , "  it seems the parties had a full and fair opportunity in the landlord-tenant case to have all the issues in the case addressed. " Judge Ciaffa concluded , " the claim for back rent was effectively lost at the time that the landlord-tenant court issued its judgment of eviction and your opportunity to pursue that claim was basically given up." Judge Ciaffa found the testimony of the former tenant, Janice Henderson who appeared pro se credible, and determined the
plaintiffs there failed to prove their claims regarding Henderson s responsibility for excessive gas and water charges. Judge Ciaffa added, while Henderson was not completely innocent in the situation, there was a significant fact issue whether the subject premises were sufficiently habitable and that Henderson had a substantial claim against the plaintiffs."

Client sues attorneys for legal malpractice, and attorneys counterclaim against client for "contribution and indemnity." When may this properly go forward? What is "contribution" and what is "indemnity" ?

Contribution is the apportionment of fault among joint tortfeasors. Several contractors who each negligently damage a tenant might seek contribution among themselves.

Indemnity is the situation in which one party is only vicariously liable to plaintiffr and entitled to full recovery froma defendant who committed the wrong. A passive landlord might successfully seek indemnity from a negligent contractor who damages a tenant.

In 180 E. 88th St. Apt. Corp. v Law Off. of Robert Jay Gumenick, P.C. ; 2011 NY Slip Op 04096 ; decided on May 17, 2011 ;Appellate Division, First Department we see that indemnity is not always available to the attorney against the client.

"The motion court’s dismissal of the Law Firm’s counterclaims for contribution and indemnification from the corporate board and its members named as counterclaim-defendants, was proper, inasmuch as the challenged action by the board was undertaken in good faith and within its capacity as representative of the cooperative corporation and, in any event, such claims by the Law Firm may only be asserted against a culpable client by way of an affirmative defense, as a mitigating factor in the attorney’s negligence (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 305 note 2 [2001]). "