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]). "

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])."