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]). "

We have not read a case decision which serves as a mini-essay in a while.  What is spoliation of medical evidence and how is it remedied?  What should the attorney have done in the face of the need for elective surgery in a PI case?  Did the attorney handle the situation correctly?  All these questions are raised and answered in Mangione v Jacobs   2012 NY Slip Op 22211   Decided on July 31, 2012   Supreme Court, Queens County   Markey, J.
 

"The most important issue in this opinion is raised by the motion to dismiss by defendant Jacobs. The plaintiff, Mangione, who previously had been involved in other accidents and personal injury lawsuits, ignored numerous court orders requiring her appearance at Independent Medical Examinations ("IMEs") in this action.The purpose of an IME is to verify a plaintiff’s alleged physical injuries and to determine the nature, extent, and cause of any injuries or medical conditions observed.

Specifically, in another action, Susanna Mangione v Metropolitan Transit Authority Bus Company and Caesar Russo, pending in this Court under index number 20671/2009, and awaiting trial, the plaintiff claimed personal injuries to her back and shoulder – – the same body parts that plaintiff contends were injured by the accident in the case at bar. In the earlier action under Index Number 20671/2009, plaintiff was a passenger in a bus on November 17, 2008, that allegedly came to a sudden stop, causing her to fall down. In that case, in two separate decisions, both dated Dec. 2, 2011, and both entered on Dec. 7, 2011, Justice Allan B. Weiss denied a defense motion for summary judgment and denied Mangione’s motion to consolidate that case with the instant action. The defendants in the present action contend that they have repeatedly requested the medical records from that earlier action involving Mangione as a rider on a bus, but, to date, they have not been produced, even though Mangione is being represented in both actions by the same counsel. [FN1]

On January 31, 2011, counsel for the parties in the case at bar appeared for a preliminary conference, and the undersigned issued an order directing that the plaintiff appear for IMEs within 45 days of her examination before trial [that was held on September 14, 2011]. On October 5, 2011, counsel for all parties in the present case appeared before Justice Ritholtz for a compliance conference. Justice Ritholtz ordered that defendants designate their doctors for the IMEs within 30 days and that the plaintiff appear 30 days thereafter for the physical examination.

The defense contention on the motion to dismiss the complaint is that plaintiff’s surgery on Feb. 27, 2012, and not going to IMEs prior to the surgery, despite three court orders, constituted the intentional spoliation of evidence warranting the most stringent sanction of dismissal of the plaintiff’s complaint.

Spoliation of evidence, in all forms, thwarts the proper functioning of our courts. See, Cedars-Sinai Med. Ctr. v Superior Court, 18 Cal. 4th 1, 8, 954 P2d 511, 515, 74 Cal. Rptr. 2d 248, 252 [1998] ["(T)he intentional destruction of evidence should be condemned. Destroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action. Destroying evidence can also increase the costs of litigation as parties attempt to reconstruct the destroyed evidence or to develop other evidence, which may be less accessible, less persuasive, or both."]; accord, U.S. Fidelity & Guar. Co. v American Re-Insurance Co., 93 AD3d 14 [1st Dept. 2012] [quoting approvingly a California trial court decision observing that insurer, concerned with a "litigation crisis," destroyed documents in order "to make it more difficult for insureds to establish coverage."].

The United States Court of Appeals for the Second Circuit, in Byrnie v Town of Cromwell Board of Education, 243 F3d 93 [2001], explained that spoliation sanctions serve three purposes:

(1) deterring parties from destroying evidence;

(2) placing the risk of an erroneous evaluation of the content of the destroyed evidence on the party responsible for its destruction; and

(3) restoring the party harmed by the loss of evidence helpful to its case to where the party would have been in the absence of spoliation.

Read on in the case for a detailed analysis of medical evidence spoliation and remedies.

The undisputed facts in this case are shocking.  "The following facts are undisputed. In or about May 2004, plaintiff, which had a lease on the building located at 2944 3d Avenue in the B r o n x , retained the law firm of Gold, Rosenblatt & Goldstein to commence a commercial summary  nonpayment action against the subtenants of the building, Diab and Hasan Saleh, who were doing business as 2944 3d Ave Retail Corp.("Retail Corp."). Defendant Steven E. Goldstein, a then-partner of the firm undertook the representation of plaintiff, and after commencing the action (Steven’s Distributions, Inc. v 2944 3rd Ave Realty Corp., Index No. 90110 (Civ Ct, B r o n x Co, 2 0 0 8 ) , fabricated several court orders purporting to award plaintiff various sums in back rent, so as to persuade plaintiff that Goldstein was actively prosecuting the action. "

So goes Steven’s Distribs. Inc. v Gold, Rosenblatt & Goldstein    2012 NY Slip Op 31990(U)
July 24, 2012   Supreme Court, New York County   Docket Number: 106283/09  Judge: Joan A. Madden.  This case is another example of the microscopic examination of "proximate cause" that goes on in legal malpractice litigation.

Justice Madden goes on to find that no matter how much fooling around took place during the litigation it was doomed from the start because no demand for rent had been timely made.  If no demand for rent, then no case.  If no case, then the internal bad behavior of of no interest.

"Accordingly, while Goldstein’s erroneous naming of the parties in the caption was unquestionably malpractice sufficient to have caused the dismissal of plaintiff’s petition, and while, perhaps, Goldstein’s (or Lubellls) failure to prepare plaintiff’s bookkeeper for her testimony would also have been sufficient to cause the dismissal, plaintiff in any event could not have prevailed in the first proceeding, since it had failed to prove a pre-litigation rent demand. For that reason, Goldstein’s (and possibly, Lubellls) negligence ”was not a proximate cause of any damages arising from the ?loss of the underlying action. Barnett v. Schwartz, 47 AD3d 197, 204 (2nd Dept 2007). Nor can plaintiff prove that, but for Goldstein’s failure to prosecute the underlying case for almost t w o years, Retail Corp.’s motion to vacate its default would not have been granted by Judge Rodriguez. While Judge Rodriguez based her decision on l1 [the long standing status of [the] proceeding with no indication that respondent neglected to appear or negotiate, and no indication that petitioner zealously prosecuted its claim" (Chera Aff., Exh. 10, at 2 ) , Diab Salehls affidavit in support of
Retail Corp’s order to show cause noted both that there was no such entity as the petitioner named in the caption of the proceeding, and that petitioner lacked standing to prosecute i t s claim, since its lease with the over-landlord had been terminated for nonpayment.

In Crawford v Himmelstein ; 2011 NY Slip Op 31669(U); ; Supreme Court, New York County; Docket Number: 115432/10; Judge: Donna M. Mills we see a straightforward analysis of a typical legal malpractice case. Client is being pursued by landlord to give up three apartments, on the basis of owner-personal use. (Put aside why a rent stabilized tenant could have three apartments?). Case is litigated, and plaintiff eventually settles for $ 300,000 and one year grace period. At the end of the grace period, tenant does not want to move out, and eventually sues attorney for malpractice. Plaintiff loses.

"To prevail in a legal malpractice action, a plaintiff must show that the attorney “failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community” (Volpe v Canfield, 237 AD2d 282,283 that such negligence was the proximate cause of their damages, and that, but for the attorney’s negligence, the plaintiff would have prevailed oh the underlying claim (see Rau v , Borenkoff, 262 AD2d 388.

Here, the plaintiff claims that Himmelstein failed to file a motion for summary judgment or proceed to trial on the issue of the owner landlord’s immigration status relating to the underlying holdover proceeding. In addition to the immigration issue, plaintiff claims there were a number of real estate irregularities surrounding the way the house was sold which was never explored sufficiently by Himmelstien. However, Himmelstein submitted documentary evidence establishing that between May 2004 and November 2007, the parties engaged in lengthy motion practice which involved significant discovery battles. It is quite apparent that Himmelstien was litigating vigorously on plaintiffs behalf before the parties decided to settle. Plaintiff has failed to demonstrate a meritorious cause of action for legal malpractice (Tortorello v Carlin, 286 AD2d 628 [2001]), there being insufficient evidence that “but for” defendants’ alleged negligence in not filing a motion for summary judgment or going to trial in lieu of settling the underlying action, plaintiff would have achieved a more favorable result (Wexler v Shea & Gould, 1 1 AD2d 450 . The record establishes that the parties with the assistance of the court in the underlying action, voluntarily decided to settle the matter instead of proceeding to trial. Moreover, Himmelstein offers a reasonable strategy as to why they did not make a motion for summary judgment. Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby
exposing themselves to liability for malpractice (Dweck Law Firm v Mann, 283 AD2d 292,
293 [2001])."
 

Familiarity breeds contempt; so goes the aphorism.  In the years since the Court of Appeals decided  Amalfitano v. Rosenberg the use of Judiciary Law 487 has been trending.  Is it now overexposed?  Will we see it in every legal malpractice setting?  Will it be invoked as often as Rule 130?

Herschman v. Kern, Augustine, Conroy & Schoppmann, 2012 NY Slip Op. 31988(U), Justice Madden is a current example.  The case reads very badly for plaintiff, who makes a legal malpractice claim as well as a Judiciary Law 487 claim.  Both are dismissed.

"Although the statute does not expressly require a pattern of chronic delinquency, in certain instances, the Appellate Division, First Department, has made it a prerequisite to recovery (Dinhofer v. Medical Liability Mut. Ins. Co. 92 AD3d 480 [l“Dept 20121; Nason v. Fisher, 36 AD3d 486 [1st Dept 20071, but see, Amalfitano v. Rosenberg, 533 F3d 1 17 [2d Cir ZOOS]). Here, the complaint contains insufficient allegations of chronic delinquency or a pattern of misconduct.
Moreover, Herschman’s claims under Judiciary Law 5 487 fail to allege the type of intentional,
egregious conduct required to permit recovery under the statute. Judiciary Law Section 487 concerns
intentional deception, and not merely negligence (Specialized Indus. Services Corp. v. Carter, 68
AD3d 750 [2d Dept 20091; Scarborough v Napoli, Kaiser & Bern, LLP, 63 AD3d 153[4th Dept]], rearg. denied, 66 AD3d 1.50 [2009]). In this connection, Herschman does not indicate that one of the defendants, or anyone else from the firm, specifically represented to him that KACS was performing work concerning the Medicare investigation after December 10,2008, when Herschman states the file was sent to storage."

"The claim under Judiciary Law 487 must be dismissed."

InLaw Offs. of D’amico & Assoc., PLLC v D’Elia ; 2011 NY Slip Op 21160 ; Appellate Term, Second Department attorney (plaintiff) has sued client (defendant) for fees, while at the same time attorney (defendant) is being sued for legal malpractice in Supreme Court by Client (plaintiff.) What happens to the Civil Court fee suit when the Supreme Court malpractice is dismissed.
The general rules of civil procedure apply. While there may be application of res judicata and collateral estoppel there is also application of the rule that you may not bring up new arguments in reply.

"While plaintiff, in its initial moving papers, sought to dismiss defendant’s counterclaims pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (7), it did not, in those papers, seek dismissal based upon res judicata pursuant to CPLR 3211 (a) (5), and it implicitly sought dismissal on res judicata grounds, if at all, only by letter to the District Court. New theories and arguments in support of a motion which do not appear in the initial moving papers should not be considered by the motion court (see e.g. Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992] [reply papers should not be used to raise new arguments]). By granting plaintiff relief on the alternative ground implicitly raised by its letter, the District Court relieved plaintiff of its burden of demonstrating in its initial moving papers that the claims asserted against the D’Amico firm in the Supreme Court action were the same as those asserted against it in defendant’s counterclaims in the instant action, and deprived defendant of a meaningful opportunity to contest that issue (see Fergusson v Dumbacher, 21 Misc 3d 145[A], 2008 NY Slip Op 52547[U] [App Term, 1st Dept 2008]; Zarintash v Kopple, 5 Misc 3d 130[A], 2004 NY Slip Op 51309[U] [App Term, 1st Dept 2004]). Accordingly, it was error for the District Court to dismiss defendant’s counterclaims on the alternative ground of res judicata implicitly raised by plaintiff.

In view of the foregoing, the order is reversed, and the matter is remitted to the District Court for a new determination of the branch of plaintiff’s motion seeking to dismiss defendant’s counterclaims pursuant to CPLR 3211 (a) (1) and CPLR 3211 (a) (7). This disposition is without prejudice to plaintiff’s seeking dismissal of defendant’s counterclaims on the ground of res judicata upon proper notice. "

Plaintiff lives to fight another day, but is unlikely to win the war.

A French artist wants to buy an apartment in New York for a studio and living space. So far, this could be the start of a fairy tale in which the artist comes to NY, works hard, triumphs, etc. But, this real estate transaction soon turned to legal malpractice litigation. One reason for the problems is that the artist nominated another to take care of the transaction, a second reason is that the attorney seems to have done not much work.

InEhrenhalt v Kinder; 2011 NY Slip Op 30375(U); February 15, 2011; Supreme Court, New York County ;Judge: Martin Shulman we see how things went bad:

"At the time she signed the contract, Shapolsky tendered the contract deposit of $85,000 directly to Kinder. Paragraph 3(i) of the contract confirms the foregoing and provides for plaintiff to pay an additional $20,000 on July 20, 2008, which she did, for a total contract deposit of $1 05,000. The unit required extensive renovation and/or repairs as reflected in a work rider attached to the contract. Kinder undertook to perform such work prior to closing. To finance this work, the contract provides for the immediate release of the contract deposit to defendant Max Management LLC (“Max LLC”).’ Thereafter, pursuant to a separate oral agreement of unspecified date, Ehrenhalt paid additional funds to Kinder- and/or Max LLC in the total amount of $28,597.45 for further renovations not indicated in the contract and not included in the purchase price (the “additional work”).‘ It appears Mehl ordered a title report pertaining to the unit on or about July 11 , 2008 and received it on or about July 24, 2008 (see Exh. 8 to Motion). The title report revealed that co-defendant Maxcine Holder (“Holder”) owned the unit, rather than Kinder, and further revealed the existence of two outstanding mortgages; an outstanding judgment of foreclosure; a lien for unpaid common charges; tax liens; and a certificate of occupancy designating the unit as a doctor’s office (hereinafter collectively referred to as the “title defects” or “title issues”). The total amount of liens exceeded the balance of the purchase price due,

Understandably, the foregoing title defects delayed any possible closing."

"Turning to defendant’s conduct after he learned of the title defects, as stated in Logalbo v Plishkiii, Rubano & Baum, supra: While the issue of whether certain conduct constitutes legal malpractice
normally requires a factual determination to be made by a jury . . , , a plaintiff will be entitled to summary judgment in a case where there is no conflict at all in the evidence, the defendant’s conduct fell below any permissible standard of due care, and the plaintiff’s conduct was not really
involved (citations omitted). Here, once he learned of the title defects, Mehl alleges only that he spoke to Kinder’s closing attorney about these issues and was assured they would be resolved prior to closing. He also vaguely alleges he spoke to plaintiff numerous times about the title
defects and she repeatedly indicated her willingness to proceed to closing once title was clear. However, Mehl gives no indication when he spoke to plaintiff or what he claims to have told her, nor does he refute plaintiffs claim that the earliest correspondence documenting such discussions is dated December 2008 (Exh. 15 to Motion), months after plaintiff had already paid $1 33,597.45 to Kinder As to this claim, defendant does not meet his burden of refuting plaintiff’s entitlement to summary judgment as to liability. This court finds that defendant’s failure to advise plaintiff of the title defects immediately upon learning of same was a breach of his professional duty as a matter of law and that this negligence was a proximate cause of at least a portion of plaintiffs’ damages, the amount of which will be determined at trial."