As we come up on the end of the baseball season, we are reminded of the Yogi Beria phrase.  Here inPsomostithis v Matthews   2012 NY Slip Op 32232(U)   August 20, 2012   Supreme Court, Queens County   Docket Number: 15200/06   Judge: Martin J. Schulman we see that processing and succeeding at a legal malpractice case is sometimes only the end of the beginning not the beginning of the end.

"This action was commenced in 2006 for legal malpractice, arising out of the representation of plaintiff in a personal injury action by defendant Paul C. Matthews, Esq. in March of 1998, when plaintiff was injured on a ship. The underlying action was ultimately dismissed. Subsequent to the commencement of this action, defendant was declared an incapacitated person, and co-guardians were appointed to him by order dated July 11, 2008 (Sandra L. Sgroi, J., Supreme Court, Suffolk County). The original coguardians were Stephen Masom and Vera Matthews, Mr. Matthews’ wife. Vera Matthews subsequently passed away, and Stephen Masom was appointed successor
guardian.
 

This action was set down for trial on June 22, 2009. After consulting with, and obtaining the consent of the guardian, Stephen Masom, defense counsel agreed to settle this case in the amount of $350,000.00, with payment to be made four months from June 22, 2009. It was also agreed that judgment interest, at 9% per annum, would accrue on the settlement amount. This settlement agreement was confirmed in writing by defense counsel, and agreed to by the guardian, Stephen Masom, who was also copied on the terms of the settlement. Thereafter, defense counsel sent plaintiff a “Seamen’s Release”, which plaintiff executed and returned on July 2, 2009.

The settlement principal was not paid, and on January 5, 2010, plaintiff moved to compel payment of the settlement and to enter judgment against defendant. In an order of this court dated January 27, 2010, the motion was denied with leave to renew, if necessary, following the resolution of the guardianship proceeding in Suffolk County. By order dated May 23, 2011, the Honorable Martha L. Luft, Supreme Court, Suffolk County, granted plaintiff leave to enter judgment without further notice against defendant Matthews for the unpaid settlement in the amount of $350,000.00, plus interest, pursuant to CPLR §5003-a. In that order, the guardian, Stephen Masom, was granted the power
and duty to take steps to market and/or mortgage certain real properties of defendant Matthews to secure sufficient proceeds to satisfy the obligation owed plaintiff.

That branch of defendant’s motion for an order pursuant to CPLR §3217(a)(2), Mental Hygiene Law § 81.21(b), (c) & (d) and CPLR §5015(a), to set aside the settlement of this action and to vacate the order entered on August 26, 2011, and the judgment entered on October 17, 2011 is denied. Stipulations of settlement are favored by the courts and are not to be lightly set aside (see, e.g., Daniel v Daniel, 224 AD2d 573), especially, where, as here, the party seeking to vacate the stipulation was represented by counsel (See, Hallock v State of New York, 64 NY2d 224 [1984]; see also, Town of Clarkstown v M.R.O. Pump & Tank, Inc., 287 AD2d 497 [2001]; Kazimierski v Weiss, 252 AD2d 481 [1998].) Relief from a stipulation will be granted only upon a showing of
good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake. (See Hallock v State of New York, supra; Kelley v Chavez, 33 AD3d 590 [2006]; Town of Clarkstown v M.R.O. Pump & Tank, Inc., supra.)  In this case, defendant has failed to make the requisite showing of good cause sufficient to invalidate the parties’ stipulation of settlement. (See Macaluso v Macaluso, 62 AD3d 963 [2009]; see also Trakansook v Kerry, 45 AD3d 673 [2007]; Matthews v
Castro, 35 AD3d 403 [2006].) "

Ponce v Howard Simmons, P.C.; 2012 NY Slip Op 32247(U); August 23, 2012; Supreme Court, New York County; Docket Number: 108692/07; Judge: Martin Shulman is a classic immigration legal malpractice matter.  It seems that there are ever changing INS or ICE or Homeland Security forms and programs and that the able immigration practitioner has to be completely up to date on the forms and the programs.  It is alleged here that the defendant attorney filed the wrong forms, possibly outdated, and that as a result, the clients will have to leave the US.

Immigration legal malpractice cases present a full menu of problems.  How do you prove the client would have been approved?  Where is the client now?  How are they supporting themselves?  Will they be in the US for trial?  Can the defendants simply out wait them?

In this case, defendants did not obtain summary judgment because there was no expert affidavit in support of the motion.  "In a legal malpractice action, “expert testimony is generally required to establish a breach of the standard of professional care, except where the daily experience of the
fact finder provides a sufficient basis for judging the adequacy of the professional service.” Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 148 (1976); S & D Petroleum Co., lnc. v Tamsett, 144 AD2d 849 (3d Dept 1988). In the context of a motion for summary judgment, the burden rests upon the moving party, in this case the defendant, “to establish through expert opinion that he did nof perform below the ordinary reasonable skill and care possessed by an average member of the legal community (citations omitted).” Suppiah v Kalish, 76 AD3d 829, 832 (Is* Dept 2010). Defendant is required to “establish through an expert’s affidavit that even if he did commit malpractice, his actions were not the proximate cause of the plaintiff‘s loss (citation omitted).’’ Id.
Defendants do not submit an expert affidavit regarding either whether Simmons’ actions and/or inactions constituted malpractice or whether those actions were or were not the proximate cause of plaintiffs’ loss. “By failing to submit the affidavit of an expert, defendant never shifted the burden to plaintiff.” Id. Instead, defendants’ counsel improperly attempts to satisfy this burden by submitting a reply affirmation averring that he is an immigration law expert and incorporating by reference the arguments made in the Defendant’s Brief in Support of the Motion for Summary Judgment. Vrhovc Reply Aff. at 77 15-20. It is, however, generally improper for counsel to function as both an advocate and an expert witness. See Ellis v Broom County, 103 AD2d 861, 861 (3d Dept 1984)(“An obvious justification for the advocate-witness rule is avoidance of the unseemly circumstance of placing an attorney in a position in which he must argue the credibility of his own testimony”); Emery Cell; Brinckerhoff & Abady, LLP v Rose, 201 2 WL 1656077 *24-25,2012 NY
Misc LEXIS 2136 *29-30, 2012 NY Slip Op 31 198(U) (Sup Ct, NY County 2012); see also Rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0 [previously Rule 1200.21 (DR 5-1 02) of the Code of Professional Responsibility]. In any event, even if defendants had provided an expert affidavit, their motion for summary judgment would still be denied as issues of fact exist.

Defendants argue that dismissal is warranted because: ’I) plaintiffs cannot prove that they would have succeeded in obtaining their adjustment of status “but for” Simmons’ negligence; and 2) plaintiffs have not shown damages."

Sometimes its obvious what responsibilities the attorney will take on in a new representation. If it’s a motor vehicle accident, then the attorney is hired to prosecute the personal injury action, up to and including trial. Here, in Hallman v Kantor ;2010 NY Slip Op 03280 ;Appellate Division, Second Department the attorneys took on a more limited role.
 

From the decision: "The defendants submitted a retainer agreement reflecting that the plaintiff "understood, accepted and agreed" that the "scope of" their "engagement" was "to represent" her as a co-executor of her deceased father’s estate. This documentary evidence conclusively established a defense to the plaintiff’s claims of malpractice. The plaintiff alleged that she was the subject of a pending lawsuit, in effect, to recover sums of money due under certain notes she executed before her father died, and that the defendants committed legal malpractice by, inter alia, failing to speak with her "about the circumstances surrounding [her] signing of [those] notes," and failing to "question[ ]" their "validity." However, the documentary evidence demonstrated that the plaintiff’s individual liability on the notes was a matter outside of the scope of the defendants’ representation of the plaintiff in her capacity as co-executor of the estate (see CPLR 3211[a][1]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). [*2]"

Here’s a fairly simple case. Plaintiff signs a real estate contract with a mortgage contingency. If she cannot obtain a mortgage she must give notice. If she properly gives notice she gets her down payment back. She hires attorney who negligently fails to give notice. She does not get her down payment back. Legal malpractice?

The opaque decision from the Second Department tells us no. It doesn’t exactly tell us why,. Beyond that, the rationale is murky. Bells v Foster 2011 NY Slip Op 03195 Decided on April 19, 2011 Appellate Division, Second Department say: "Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law because she failed to demonstrate that any negligence on the defendant’s part in failing to timely cancel the contract of sale on her behalf was the sole proximate cause of her damages (see Snolis v Clare, 81 AD3d 923; see also Selletti v Liotti, 22 AD3d 739; compare Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511). Accordingly, the Supreme Court erred in granting the plaintiff’s motion for summary judgment on the issue of liability.

The Supreme Court properly denied the defendant’s cross motion for summary judgment dismissing the complaint. The defendant failed to make a prima facie showing of his entitlement to judgment as a matter of law since he failed to show that the plaintiff was unable to prove at least one of the essential elements of her legal malpractice cause of action (see Mueller v Fruchter, 71 AD3d 650, 651; Velie v Ellis Law, P.C., 48 AD3d 674, 675; Pedro v Walker, 46 AD3d 789, 790; Eisenberger v Septimus, 44 AD3d 994, 995; Shopsin v Siben & Siben, 268 AD2d 578, 578-579). "

Well, then, plaintiff failed to show that the attorney negligence was the "sole proximate cause" Isn’t that enough?

But, then, what of Barnett v. Schwartz, 2007 NY Slip Op 09712 [47 AD3d 197] ?

"First, the parties have not cited, and research has not revealed, any case from the Court of Appeals or any other court expressly holding that "but for" causation is synonymous with sole proximate cause, or that requires a degree of causation in legal malpractice cases greater than proximate cause, i.e., greater than that which must be typically proved as against any other professional or lay defendant in a negligence action. Similarly, the parties have not cited, and research has not revealed, any case discussing or identifying any basis for singling out attorneys for special treatment on the issue of causation. The Pattern Jury Instruction on legal malpractice, which focuses upon the lawsuit-within-a-lawsuit scenario, does not expressly use either the phrase "but for" or "proximate cause" in its formulation (PJI 2:152). However, the comments to the instruction, while noting the "but for" formulation, provide that a defendant-attorney’s negligence need only be [*5] "a" proximate cause of damages and refer the reader to the general Pattern Jury Instruction on proximate cause (1 NY PJI 2:152, at 872, 880 [2008] PJI 2:70). Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause. For example, in the lawsuit-within-a-lawsuit scenario, the plaintiff-client must prove that but for the defendant-attorney’s negligence they would have prevailed in the underlying action.

Well, consistency may be overrated.
 

A Long Island practitioner persisted in moving and appealing, and the AD rewarded him with reversal of the dismissal of two of the causes of action in his case. In Hoffman v Colleluori
2011 NY Slip Op 05669 ; Appellate Division, Second Department we see the AD calculating the statute of limitations for plaintiff, and his ability to sue.
 

"The Supreme Court erred in, upon reargument, adhering to its original determination granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the second and third causes of action to recover damages for legal malpractice. "A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" (Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018 [internal quotation marks and citation omitted]; see Arnav Inds., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303).

Accepting all the facts alleged in the complaint as true, the allegations are sufficient to state a cause of action to recover damages for legal malpractice in an underlying federal civil rights action. The plaintiff alleged in his complaint, inter alia, that the defendants failed to assert the underlying causes of action before the expiration of the applicable statutes of limitations, and that their negligence was a proximate cause of his damages (see Jennings v Raso, 251 AD2d 380, 380). While most of the underlying causes of action were time-barred before the plaintiff retained the [*2]defendants, the plaintiff’s claim under 42 USC § 1983 arising from malicious prosecution was viable at the time the defendants commenced the federal action on the plaintiff’s behalf (see Palmer v State of New York, 57 AD3d 364, 364; Pendelton v City of New York, 44 AD3d 733, 737). Moreover, contrary to the defendants’ contention, the complaint "set forth allegations from which damages attributable to the defendant[s’] alleged malpractice might be reasonably inferred" (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 410; see Fielding v Kupferman, 65 AD3d 437, 442).

The Supreme Court also erred in, upon reargument, adhering to its original determination granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(1) to dismiss the legal malpractice causes of action. 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 314, 326; see Thompsen v Baier, 84 AD3d 1062). Here, the documentary evidence did not conclusively establish that all of the underlying causes of action were time-barred before the plaintiff retained the defendants. "

Barely submerged below the decisions of trial and appellate courts is the fear that if legal malpractice litigation is given full rein, there will be a legal malpractice case which immediately follows every trial of any nature. After all, the one thing that legal malpractice always has are claims of attorney misrepresentation, and every trial has one or more attorneys. So, in Kleinser v Astarita 2012 NY Slip Op 01130 ;; Appellate Division, First Department we see such a situation. Plaintiff sues and loses a case, and then sues and loses a legal malpractice.
 

"We need not decide the statute of limitations issue, because even if timely commenced, plaintiff failed to raise an issue of fact as to his claims of legal malpractice and breach of contract. Plaintiff’s contention that defendants did not place before the trial court in the underlying action the evidence of his ownership interest in the "47BH Account" is unsupported in the record. The trial court in the underlying action expressly found that plaintiff had a 1/3 interest in the 47BH Account. Moreover, the court explained, in detail, that that 1/3 interest entitled plaintiff to recover only $37,108, not the much greater sums he sought. Plaintiff does not argue that the court’s calculation of damages was erroneous or a result of defendants’ negligence. Hence, he failed to show that any negligence on defendants’ part proximately caused him to recover less than he was otherwise entitled to (see Brooks v Lewin, 21 AD3d 731, 734 [2005], lv denied 6 NY3d 713 [2006]). To the extent plaintiff argues that defendants did not sufficiently emphasize his ownership in the 47BH account, the argument is unavailing, since an insufficient emphasis would be, "at most, a mere error in professional judgment not rising to the level of legal malpractice" (see Geller v Harris, 258 AD2d 421, 421 [1999]; Rubinberg v Walker, 252 AD2d 466, 467 [1998]).
As to his breach of contract claims, plaintiff failed to present evidence establishing the term of his alleged oral agreement with defendant Martin Kaplan whereby Kaplan agreed that defendant Gusrae Kaplan & Bruno would prosecute all appeals from the underlying judgment for no more than $50,000. "

It is often said (and sometimes sanctimoniously) that the legal malpractice claimant is simply trying to gain an advantage, or to avoid paying legal fees. Here, in Matter of Price ; 2011 NY Slip Op 05814;  Appellate Division, Second Department we see a different use of the claim. "Respondent" is an attorney-escrow agent.

"In or about September and October 2005, SDLH was engaged in negotiations to sell its business to Great South Bay Automotive, Inc. (hereinafter Great South Bay). At or about that time, the respondent represented SDLH. Great South Bay, whose principals were Robert Gerstacker and Rob Despres, was represented by Richard Bartel.

Prior to the closing, a Notification of Sale, Transfer, or Assignment of Bulk, dated September 20, 2005 (hereinafter the Notification), was sent to the New York State Department of Taxation and Finance (hereinafter the DTF). The respondent was listed in the Notification as escrow agent in connection with the sale of SDLH. [*2]

At the closing, the respondent signed an escrow agreement wherein he acknowledged, inter alia, that he received a check payable to himself, as attorney, in the amount of $82,393.02. From this money, the respondent further acknowledged that he would undertake to satisfy "the State, Suffolk Auto and Exhaust Warehouse." The reference to "the State" in the escrow agreement was to a tax liability owed by SDLH to New York State.

In or about February 2006, New York State issued a Notice of Determination assessing $58,890.03 against Great South Bay for the unpaid taxes of SDLH. By order to show cause, summons, and verified complaint dated April 26, 2006, Great South Bay and its principals commenced an action in the Supreme Court, Suffolk County, against SDLH, its principals, and the respondent entitled Great South Bay Automotive, Inc. v SDLH Automotive Inc., under Index No. 12040/06. The complaint alleged, inter alia, breach of contract due to the failure of SDLH and the respondent to satisfy the tax liability owed to New York State. In addition, there were causes of action to recover damages for fraud and breach of fiduciary obligations on the part of the respondent, as escrow agent, based upon his failure to satisfy the tax liability pursuant to the escrow agreement.

The respondent represented SDLH, its principals, and himself in the action. On behalf of SDLH and himself, the respondent submitted a verified answer sworn to on May 23, 2006. He thereafter submitted an affidavit in opposition to the order to show cause, sworn to on May 24, 2006, on behalf of SDLH and himself. In his affidavit in opposition, the respondent asserted, inter alia, that "at no time did your deponent receive any money from sales tax. There was no known debt to the State." The respondent further asserted that, pursuant to the Agreement for the sale of SDLH, he was required to hold only $1,000 in escrow to guarantee that SDLH received a release from New York State in connection with "unpaid sales tax" due. Great South Bay moved for summary judgment by notice of motion dated September 14, 2006.

By summons and third-party complaint dated September 25, 2006, and October 3, 2006, respectively, the respondent commenced a third-party action on his own behalf against Richard Bartel, attorney for Great South Bay, and its principals, entitled Price v Bartel. The respondent [*3]alleged, inter alia, that Bartel committed legal malpractice in his representation of Great South Bay in its purchase of SDLH.

The order also dismissed the third-party action, reciting that the third-party complaint "fails to state any cognizable cause of action and . . . Price lacks standing to assert certain claims." Specifically, the Supreme Court stated that "Price’s claim for malpractice must fail because he lacks standing to assert such claim against Bartel as he was not in an attorney-client relationship with him. Moreover, on the merits, Price has failed to set forth any of the elements of a prima facie case of legal malpractice [citations omitted]."
 

The decision doesn’t tell us in what capacity the attorneys represented the client, but they are now in suit over legal fees, with a legal malpractice counterclaim. As we read this case, we wondered whether the time and effort was worth it. Will there ever be a collection of fees?

in Bender, Jenson & Silverstein, LLP v. Walter ; 2009 NY Slip Op 08572 ; ;Appellate Division, Second Department the attorney is seeking fees. Defendant-counterclaimant asked the court to "assign counsel", a sure sign that the client has few funds. The Court declined, and the Appellate Division determined that "on the Court’s own motion, the appeal from the first order dated June 6, 2008, is dismissed, on the ground that no appeal lies as of right from an order that does not affect a substantial right of the appealing party (see CPLR 5701[a][2][v]), and we decline to grant leave to appeal." Next, the court looked at plaintiff’s claim that she could not afford photocopies.
 

The balance of the decision covers a frequent situation in pro-se representation; getting tangled up in discovery problems. "The plaintiff sought to recover its fee for legal services provided to the defendant, who asserted counterclaims sounding in legal malpractice. In response to the plaintiff’s requests for the production of documents, the defendant claimed to be without financial resources to photocopy the requested documents and refused to produce them, in spite of the plaintiff’s offer to bear the cost of photocopying. [*2]

Since the defendant failed to establish that she made any effort to comply with the plaintiff’s repeated discovery requests, the Supreme Court properly considered her lack of cooperation to be willful and contumacious, and properly conditionally granted the plaintiff’s motion to preclude her from introducing the requested documents in evidence (see Kihl v Pfeffer, 94 NY2d 118; D’Aloisi v City of New York, 7 AD3d 750; Brooks v City of New York, 6 AD3d 565; Donovan v City of New York, 239 AD2d 461; cf. Scardino v Town of Babylon, 248 AD2d 371).

In light of the defendant’s noncompliance with discovery, the Supreme Court properly denied her motion to quash certain subpoenas which had been served on nonparty witnesses