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. "
 

There are conflicting rules in the 4 departments of New York. In legal malpractice, it is plaintiff’s obligation to demonstrate that a hypothetical judgment could be collected in a legal malpractice case in the 2d, 3d and 4th departments. In the First Department, it is an affirmitive defense for defendant to prove.

Here is a procedural case from the 4th Department on the issue. Williams v Kublick
2007 NY Slip Op 04932  Appellate Division, Fourth Department .

"We conclude that Supreme Court erred in granting defendants’ motion, and we therefore modify the order accordingly. In granting the motion, the court determined, inter alia, that defendants established as a matter of law that plaintiff is unable to prove that defendants’ [*2]negligence is a proximate cause of plaintiff’s damages (see Robbins v Harris Beach & Wilcox, 291 AD2d 797, 798). That was error."

"A necessary element of a cause of action for legal malpractice is the collectibility of the damages in the underlying action (see McKenna v Forsyth & Forsyth, 280 AD2d 79, 82-83, lv denied 96 NY2d 720; cf. Lindenman v Kreitzer, 7 AD3d 830, 835). Here, regardless of whether the value of the property was improperly considered by the experts, we conclude that the otherwise conflicting opinions of the experts concerning the value of the assets of the joint venture precluded the court from determining as a matter of law that defendants established that plaintiff is unable to prove that he could collect damages in the underlying lawsuits (see generally Simmons v State Farm Mut. Auto. Ins. Co., 16 AD3d 1117; Herzog v Schroeder, 9 AD3d 669, 670)."

 

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].) "

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. "