We’ve noted our anecdotal belief that more legal malpractice cases are dismissed on CPLR 3211 grounds than in general.  We are the first to admit that no statistical study has been done.  In the spirit of anecdotal evidence, we look at Harris v Barbera   2012 NY Slip Op 04973
Decided on June 20, 2012   Appellate Division, Second Department.
 

"The defendants represented the plaintiff in an action in which she sought a divorce and ancillary relief (hereinafter the underlying action). After the conclusion of the underlying action, the plaintiff commenced this action against the defendants alleging, inter alia, legal malpractice. The defendants moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action to recover damages for legal malpractice. The Supreme Court, inter alia, granted that branch of the [*2]motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action to recover damages for legal malpractice and dismissed that cause of action.

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party "utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law" (Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 796; Fontanetta v John Doe 1, 73 AD3d 78, 83). In support of that branch of their motion which was to dismiss the legal malpractice cause of action pursuant to CPLR 3211(a)(1), the defendants submitted, among other things, a retainer agreement, or what they referred to as a matrimonial engagement agreement, executed by both the defendants and the plaintiff. The agreement stated that there was "no assurance or guarantee of the outcome" and also that the agreement "does not include representation for . . . legal services after the Judgment of Trial Court . . . [or] [t]he Appeal of any decisions of the Trial Court." Yet, the plaintiff, among other things, detailed in her affidavit in opposition to the motion how the defendants failed to pursue a motion for leave to reargue or other application to modify a decision in the underlying action, submitted deficient or inappropriate proposed findings of fact and conclusions of law, and failed to adequately address various necessary issues during the trial. Contrary to the defendants’ contentions, the retainer agreement was insufficient documentary evidence to dispose of those allegations. In addition, contrary to the defendants’ contentions, the Supreme Court’s decision in the underlying action did not utterly refute or conclusively establish a defense to the plaintiff’s claim but, instead, merely disputed certain of the factual allegations (see DeStaso v Condon Resnick, LLP, 90 AD3d 809, 814). Therefore, the Supreme Court erred in granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) (id. at 813-814).

On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the complaint must be construed liberally and "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275). Moreover, "[a] court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and upon considering such an affidavit, the facts alleged therein must also be assumed to be true" (Kopelowitz & Co., Inc. v Mann, 83 AD3d at 797 [citations and internal quotation marks omitted]). Here, to the extent that the complaint was vague as to the nature of the allegations of legal malpractice and otherwise deficient, the plaintiff, in opposition to the defendants’ motion, submitted evidence, including her affidavit, in which she sufficiently remedied any pleading defects and delineated the grounds for her claim of legal malpractice (see Quinones v Schaap, 91 AD3d 739; Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149; see also Gelobter v Fox, 90 AD3d 829, 830-831).

Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action to recover damages for legal malpractice. "

 

Its not always easy to say when the last date upon which an attorney renders service to a client, nor when the statute of limitations commences. .  is it on the day that a defective security agreement is prepared?  is it on the day that the security agreement is given to debtor?  In this case, its no earlier than the day when the last signature is executed. 

Americana Capital Corp. v Nardella   2012 NY Slip Op 04927   Decided on June 19, 2012   Appellate Division, First Department  determines the date upon which a malpractice claim arose.
 

"Plaintiff’s legal malpractice claim was not barred by the statute of limitations (see CPLR 214[6]). Plaintiff alleges that the deceased negligently drafted a security agreement preventing plaintiff, as the creditor, from being able to enforce the agreement as against the debtor once the debtor defaulted.

Plaintiff’s legal malpractice claim accrued no earlier than when the agreement was executed, which occurred on November 29,
2002, the date of the last signature on the agreement (see McCoy v Feinman, 99 NY2d 295 [2002]), and this action was commenced less than three years later. "

 

Last fall we wrote about the Cove Cafe and the legal malpractice case that followed.  Attorney was sued when there was a falling out of the partners.  Now, on a motion to renew and reargue, before a different judge, there have been some changes.  Battaglia v Grillo  2012 NY Slip Op 31588(U)
June 6, 2012  Supreme Court, Nassau County  Docket Number: 014807-10  Judge: Vito M. DeStefano.

"In granting the underlying motions, Justice Warshawsky found that " (t)here is no
evidence that Spadaccini was bereft of the legal knowledge necessary to carry out the transaction.
Since ‘ legal malpractice ‘ requires a showing that the Defendant lacked the ordinary and
customary skill of a member of the legal community, Plaintiff Battaglia and third-party Plaintiff
Grillo have failed to allege a claim for legal malpractice" (Ex. "A" to Motion at p 6). The court
continued  "There is no evidence that Spadaccini made a legal error which resulted in the loss of
the investments of Battaglia, much less the non-contribution of Grillo. If the parties to this
enterprise have claims, they are against one another, not the attorney who undertook to provide
each of them with a 25% interest in the company holding title to the real estate they sought to
acquire to the extent that ostensibly three of the four joint ventures failed to contribute the
opening investments to which they committed, it is hardly the fault of their attorney that the
project has deteriorated into a fiscal disaster" (Ex. "A" to Motion at pp 6-7).

The court also dismissed the fraud allegations on the ground that "( n )ow here does the
Plaintiff Battaglia or third-party Plaintiff Grillo identify a specific representation which was
falsely made by Spadaccini, which he knew to be false, and which he made in order to induce
others to act, or that they acted upon such misrepresentation to their damage" (Ex. "A" to Motion
at p 6) .

"In the prior order, the court found that Battaglia and Grillo did not allege a claim for legal
malpractice because they failed to show that Spadaccini lacked the ordinary and customary skill
of a member of the legal community (Ex. "A" to Plaintiff s Motion at p 6). In a legal malpractice
action, the claimant must show that an attorney "failed to exercise the ordinary reasonable skill
and knowledge commonly possessed by a member of the legal profession" and that "the
attorney s breach of this professional duty caused the (claimant’ s) actual damages (McCoy
Feinman 99 NY2d 295, 301-02 (2002)). In order to survive a motion to dismiss, the complaint
must allege that but for counsel’ s malpractice, the claimant would have prevailed in the
underlying action or not have incurred any damages (Rudolf Shayne, Dachs, Stanisci, Corker
& Sauer 8 NY3d 438 (2007) (emphasis added)).
 

Here, the amended complaint and the third-party complaint each set forth a claim for
legal malpractice. According to the amended complaint, Spadaccini was retained to represent the
interests of the members of Macabagi, LLC ("LLC") in purchasing the property; Spadaccini advised Battaglia that the property was to be purchased by Battaglia, Bartolomeo Piraino
Massimo Grillo and Calogero Drago for approximately $275 000; Spadaccini would close the
transaction with each of the four members having a 25% percent interest in the LLC (Spadaccini
had drawn up the operating agreement to the LLC which provided that each of the four members
of the LLC would contribute a cash investment of $100 000.00 for a total working capital of
$400 000); Spadaccini failed to advise Battaglia that only Battaglia s $100 000 initial
contribution would be used to purchase the property, in violation of the understanding between
the four members of the LLC and in violation of Spadaccini’ s express representation to Battaglia;
Spadaccini closed title to the property, placing legal title to the property solely in the name of
Nancy Piraino,2 who was not a member of the LLC; and closed title with a $200 000.00 first
mortgage on the property (Ex. "D" to Affirmation in Opposition). Battaglia claims that he was
not advised that the purchase was being financed and, had he known, he would not have
purchased or made an investment in the property."

Big corporate client goes to Big white shoe law firm and believes that the Big litigator there will take and handle the case.  It does not happen.  A lesser light handles the case, and the Big Corporate client is unhappy.  Now what?

Matter of Matter of G.K. Las Vegas Ltd. Partnership v Boies Schiller & Flexner LLP   2012 NY Slip Op 04831   Decided on June 14, 2012   Appellate Division, First Department.
 

"In this proceeding alleging the law firm’s breach of performance of a retainer agreement, including breach of an alleged oral agreement to have a particular attorney in its firm serve as lead counsel in an underlying matter, the client failed to preserve its arguments that the law firm did not meet its burden of demonstrating that the client fully understood the terms of the parties’ retainer agreement, and that public policy rendered such retainer agreement unenforceable, as these arguments were not sufficiently brought to the attention of the arbitrator. (see Edward M. Stephens, M.D., F.A.A.P. v Prudential Ins. Co. of Am., 278 AD2d 16 [2000]; see also Matter of Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 13 NY3d 168, 173-174 [2009]). The client did not explicitly argue that the law firm violated public policy by failing to ensure that the client fully understood the terms of the parties’ retainer agreement. It only argued that parol evidence was needed because the retainer agreement, as written, was allegedly incomplete and/or ambiguous.

Were we to reach the merits of the client’s public policy argument, we would find it unavailing. The parties agreed to arbitrate any disputes arising from their retainer agreement, and there is no basis to conclude that the asserted public policy ground (requiring a client’s full knowledge and understanding of an attorney-client retainer agreement) was violated. The arbitrator’s award dismissing the client’s challenge to the legal fees that were due in accordance with the express terms of the parties’ amended written retainer agreement had a rational basis, inasmuch as the Arbitrator found the written retainer arrangement to be unambiguous and to constitute a fully integrated agreement that would satisfy the requirements of 22 NYCRR 1215.1 (see generally Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223-224 [1996]). The arbitrator’s rejection of the sophisticated client’s argument that sought inclusion of claimed oral terms that would modify the clear terms of the amended retainer agreement was rationally based in contract principles, including New York’s parol evidence rule, [*2]and the criteria for allowing modification of written terms without altering them was not established by the client (see Mitchill v Lath, 247 NY 377 [1928]; Chemical Bank v Weiss, 82 AD2d 941 [1981], appeal dismissed 54 NY2d 831 [1981]). Since the terms of the fully integrated retainer agreement were unambiguous, there was no basis to consider parol evidence (see Slotnick, Shapiro & Crocker, LLP v Stiglianese, 92 AD3d 482 [2012]; Moore v Kopel, 237 AD2d 124, 125 [1997]).

Moreover, the client’s argument that the arbitrator, in deciding the dismissal motion, denied it "fundamental fairness" by refusing to accept the truth of its allegations regarding the oral promise, including that the parties intended this oral promise to be a component of the parties’ retainer agreement, thereby precluding it from offering evidence to demonstrate the parties’ understanding in regard to the alleged oral promise, is unavailing. It was within the province of the arbitrator to find, as a matter of law, that the retainer agreement was not ambiguous (see W.W.W Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]), notwithstanding the client’s claims that alleged oral promises were intended to be added as components of the written retainer agreement. Since an arbitrator’s award ordinarily will not be vacated even if founded upon errors of law and/or fact (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479-480 [2006], cert dismissed 548 US 940 [2006]), there is no basis to vacate this award founded upon applicable contract principles (see Szabados v Pepsi Cola Bottling Co. of N.Y., 191 AD2d 367 [1993]). "

 

When clients depend upon the expertise of an attorney, and then end up with a bad result, they can successfully plead legal malpractice.  Does a client settle the personal injury case or litigate on?  Depending on how the attorney advises the client, there may or may not be legal malpractice.  Here is an example.

Polanco v Greenstein & Milbauer, LLP    2012 NY Slip Op 04385    Decided on June 7, 2012
Appellate Division, First Department   concerns a case in which plaintiff was struck in the neck by a piece of lumber.  She alleged that the defendant was negligent in urging her to settle the case without a MRI and telling her that a MRI would not lead to a more favorable result.  She settled the case for $ 20,000 only to find out later that she was permanently disabled.
 

"after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant’s negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations are sufficient to state a claim for legal malpractice (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 435 [2011]; see generally Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005]). Plaintiff was not required to [*2]show a likelihood of success in the underlying action, but was "required only to plead facts from which it could reasonably be inferred that defendant’s negligence caused [her] loss" (Garnett, 82 AD3d at 436). Plaintiff plead such facts. "

Gershkovich v Miller, Rosado & Algios, LLP    2012 NY Slip Op 04318    Decided on June 6, 2012  Appellate Division, Second Department  is a legal malpractice case which recently went to a motion for summary judgment.  Each side gave it their best shot, and the result was a stand-off.
 

"Here, the Supreme Court properly determined that the defendant Arthur Welsher failed to establish, prima facie, that the plaintiffs Tibor Gershkovich and Galina Gershkovich (hereinafter together the respondents) were unable to prove the essential elements of their legal malpractice cause of action insofar as asserted against that defendant (see Gelobter v Fox, 90 AD3d [*2]829, 831; Suppiah v Kalish, 76 AD3d 829, 832; Ali v Fink, 67 AD3d 935, 937; Terio v Spodek, 25 AD3d 781, 785; see also M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1209).

The Supreme Court also properly determined that although the defendant Miller, Rosado & Algios, LLP, established its prima facie entitlement to judgment as a matter of law dismissing the legal malpractice cause of action insofar as asserted by the respondents against it, the respondents raised triable issues of fact in opposition (see Silva v Worby, Groner, Edelman, LLP, 54 AD3d 634; see also Conklin v Owen, 72 AD3d 1006, 1007; Nelson v Roth, 69 AD3d 912, 913; Boglia v Greenberg, 63 AD3d at 975; Mourtil v Korman & Stein, P.C., 33 AD3d 898, 900).

Accordingly, the Supreme Court properly denied those branches of the defendants’ motions which were for summary judgment dismissing the legal malpractice cause of action insofar as asserted by the respondents against each of them. "

 

In Englert v Schaffer   2012 NY Slip Op 04602   Decided on June 8, 2012   Appellate Division, Fourth Department  the claim was that defendants knew of a settlement offer and failed to tell plaintiff.  Is that malpractice? 
 

"We reject defendants’ contention that summary judgment in their favor is required on the ground that plaintiffs could not establish that they would have accepted a settlement offer made in the underlying personal injury case if Schaffer had notified them of that offer. When the alleged negligence of defendant involves a failure to communicate a settlement offer, the plaintiff must "demonstrate that, but for the [defendant’s] alleged negligence, [plaintiff] would have accepted the offer of settlement and would not have sustained any damages" (Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562, lv denied 100 NY2d 511). Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiffs raised a triable issue of fact whether they would have accepted the settlement offer if Schaffer had promptly communicated it to them (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).
"

In this Third Department case,Kreamer v Town of Oxford   2012 NY Slip Op 04445   Decided on June 7, 2012   Appellate Division, Third Department    plaintiff’s complaint was dismissed, even after the AD gave it a liberal reading, and attempted to construct a pleading for plaintiff.

"Plaintiffs failed to state a cause of action against defendant. The complaint does not list legal malpractice as a separate cause of action (see CLPR 3014), and all of the allegations concerning defendant are contained in the "statement of facts" portion of the complaint rather than under a specified cause of action. Even accepting the allegations as true and liberally construing the complaint to be alleging legal malpractice against defendant, the allegations are insufficient to make out a prima facie case. An action for legal malpractice requires proof that the attorney failed to exercise the reasonable skill and knowledge ordinarily possessed by a member of the legal profession, that this negligence was the proximate cause of the client’s loss or injury, and that the client sustained actual damages (see M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1208-1209 [2011]). Plaintiffs allege that defendant knew or should have known of the Town’s zoning ordinances that could affect plaintiffs’ rights as landowners, but failed to advise them of those rights. They further allege that defendant’s actions inflicted emotional distress and caused them to expend money to save their house. These allegations do not set out the standard of skill required of an attorney or state that defendant’s actions fell below that skill level (see Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied 552 US 1257 [2008]; compare Canavan v Steenburg, 170 AD2d 858, 859 [1991]; see also Kolev and Collins, The Importance of Due Diligence: Real Estate Transactions in a Complex Land Use World, 84 NY St BJ 24 [March/April 2012]). Thus, defendant was entitled to have the complaint against him dismissed. "

 

We remember some Shakespeare quote about how Cesare’s wife must be more worthy than any other politician/emperor’s wife.  Similarly, here a legal malpractice case is dismissed for failure to file a complaint after a demand had been made.  In Dayan v Darche   2012 NY Slip Op 04312   Decided on June 6, 2012   Appellate Division, Second Department  the Court writes:
 

"To avoid dismissal of the action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Perez-Faringer v Heilman, 79 AD3d 837, 838; Gibbons v Court Officers’ Benevolent Assn. of Nassau County, 78 AD3d 654, 654; Pristavec v Galligan, 32 AD3d 834, 834; Maldonado v Suffolk County, 23 AD3d 353, 353-354). Here, the plaintiff failed to proffer any excuse for her lengthy delay in serving the complaint. Furthermore, she failed to establish that she had a potentially meritorious cause of action (see generally Rosner v Paley, 65 NY2d 736, 738; Allen v Potruch, 282 AD2d 484, 484-485; Iannacone v Weidman, 273 AD2d 275, 276-277; Rubinberg v Walker, 252 AD2d 466, 467). Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the action.

In addition, the plaintiff’s motion for leave to renew her opposition to the defendant’s motion to dismiss the action was properly denied. In support of her motion, the plaintiff proffered her attorney’s affirmation in an attempt to provide a reasonable excuse for the delay in serving the complaint. However, the attorney’s affirmation, which, inter alia, proffered an unsubstantiated excuse of disabling illnesses, was insufficient to warrant a change of the prior determination (see CPLR 2221[e][2]; Cynan Sheetmetal Prods., Inc. v B.R. Fries & Assoc., Inc., 83 AD3d 645, 646; Mattera v Capric, 54 AD3d 827, 828; Borgia v Interboro Gen. Hosp., 90 AD2d 531, affd 59 NY2d 802; Wolfe v Town of Hempstead, Dept. of Parks & Recreation, 75 AD2d 811, 812). Moreover, the plaintiff failed to offer a reasonable justification for failing to present this affirmation in opposition [*2]to the defendant’s original motion (see CPLR 2221[e][3]; Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d 510, 512; Zarecki & Assoc., LLC v Ross, 50 AD3d 679, 680; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533). "

 

Amalfitano v. Rosenberg  rewrote the law on Deceit and attorneys, and revitalized a statute that was written in 1275.  It is the oldest surviving statute in Anglo-American jurisprudence.  Now, the aftermath for the attorney accused of deceit.

Matter of Rosenberg, M-3654, NYLJ 1202557354417, at *1 (App. Div. 1st, Decided June 5, 2012)

Before: Andrias, J.P., Saxe, Sweeny, Catterson and Acosta, JJ.Decided: June 5, 2012

Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Scott D. Smith, of counsel), for petitioner.

Richard M. Maltz, for respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Armand J. Rosenberg, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on April 2, 1951.

 

 

*2

PER CURIAM

 

Respondent Armand J. Rosenberg was admitted to the practice of law in the State of New York by the First Judicial Department on April 2, 1951. At all time relevant to this proceeding, respondent’s registered office was within the First Department.

By order dated October 13, 2010 this Court granted the Departmental Disciplinary Committee’s petition for an order giving collateral estoppel effect to an April 2006 decision by the U.S. District Court for the Southern District of New York in the case of

Amalfitano v. Rosenberg

(428 F Supp 2d 196 [SDNY 2006], affd 572 F3d 91 [2d Cir 2009]), in which respondent was found to have engaged in fraudulent conduct, in violation of New York Judiciary Law §487, and imposed treble damages in the amount of $268,245.54. Our order further found that respondent’s conduct violated DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 1-102(A)(7) (conduct that adversely reflects on respondent’s fitness as a lawyer), DR 7-102(A)(4) (knowingly using perjured testimony), and DR 7-102(A)(5) (knowingly making a false statement of law or fact), and referred the matter to a Hearing Panel for a sanction hearing. The Committee is now seeking an

*3

order confirming the Hearing Panel’s findings of fact, conclusions of law and recommendation of a one-year suspension.

 

This matter stems from respondent’s representation of Peter Costalas, who, along with his two brothers, James and John, were members of a family partnership that owned five buildings and twelve restaurants. Peter diverted millions of dollars in partnership finds and mortgaged buildings by use of forged signatures in order to cover losses incurred in connection with his personal trading in stock options. As a result, James and John commenced an action against Peter and his brokers. In August 1993, respondent negotiated an agreement on Peter’s behalf in which Peter, among other things, assigned and transferred his interest in the partnership to John, and in return, was dismissed as a defendant in the litigation.

Thereafter, Vivia Amalfitano, James’ daughter, purchased the partnership’s remaining building and restaurant from John and James. In May 2001, respondent commenced an action in New York County, Supreme Court, naming Vivia and her husband, Gerard Amalfitano, Esq., as defendants, alleging that they defrauded John and James into conveying the partnership’s remaining property and business, and that Peter was still a partner. The action was eventually dismissed during trial. Respondent then unsuccessfully appealed the trial court’s order denying his motion to vacate (see

Costalas v. Amalfitano,

23 AD3d 303 [2005]).

 

 

*4

In March 2004, the Amalfitanos commenced the above-mentioned federal action against respondent alleging that respondent’s commencement and prosecution of the state court action against them constituted a violation of Judiciary Law §487.

 

We agree with the recommendation of the Panel that respondent should be suspended for one year