Potential legal malpractice clients often wonder whether it is better to try to fix the problem or sue the attorney.  The answer to this question is the highest form of speculation.  Its far more difficult to predict the future events in litigation than to pick a winner from a 9 horse field.

David v Hack  2012 NY Slip Op 05479   Decided on July 10, 2012   Appellate Division, First Department  is an example.  Here, plaintiff filed for disability insurance payments, was denied, and then changed attorneys.  The second set of attorneys were partially successful.  They won the battle, and then lost the war. Their partial success doomed the later legal malpractice case. However, it is not the second attorneys who were the target.
 

"By written agreement dated April 28, 2009, plaintiff, a commodities trader with MBF Clearing Corporation, retained defendant Quadrino & Schwartz, P.C., on an hourly fee basis, "to represent him in connection with the filing of long term disability claims under two Guardian group policies." At that time, the "look back period" for determining an employee’s "Insured Earnings," used to calculate the amount of benefits to which the employee was entitled, was one year from the date of disability. As of May 1, 2009, the look back period was increased to three years.

In support of his malpractice claim, plaintiff alleges that defendants, without his knowledge, submitted a claim form that incorrectly stated that the date of his disability was "4/9/09," which was the day he stopped trading, not the day he was determined to be disabled; the latter he alleges was May 13, 2009. Plaintiff contends that as a result of this error, Guardian applied the one-year look back period, which led to the denial of his claim on April 14, 2010, because his 2008 income tax return showed a loss. Although plaintiff, on a contingency fee basis, retained new counsel who successfully appealed the denial, he seeks to recover from defendants the additional costs, expenses and attorneys’ fees he incurred in prosecuting that appeal.

Supreme Court correctly determined that issues of fact exist as to whether the release signed by plaintiff on March 31, 2010, in connection with the settlement of his fee dispute with defendants, was obtained in violation of the Rules of Professional Conduct (22 NYCRR § 1200.0), rule 1.8(h)(2)(see Swift v Ki Young Choe, 242 AD2d 188, 192 [1998]; see also Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]). However, the malpractice claim must nevertheless be dismissed because the evidentiary materials submitted by the parties conclusively establish that defendants breached no duty to plaintiff, and that no alleged damages were caused by any act of defendants (see O’Callaghan v Brunelle, 84 AD3d 581 [2011], lv [*2]denied 18 NY3d 804 [2012]; Between The Bread Realty Corp. v Salans Hertzfeld Heilbronn Christy & Viener, 290 AD2d 380, 381 [2002], lv denied 98 NY2d 603 [2002]).

To succeed on a motion to dismiss pursuant to CPLR 3211(a)(1), the documentary evidence relied on by the defendant must "conclusively establish[ ] a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88 [1994]).
On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiff[] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (id. at 87-88). However, "allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration" (Maas v Cornell Univ., 94 NY2d 87, 91 [1999]).

At the heart of plaintiff’s malpractice claim is his assertion that defendants could have obtained the date of his disability from his treating physician, Dr. Schottenstein, at any time after May 13, 2009, but refused or neglected to do so. However, the record demonstrates that when plaintiff’s new counsel argued in his June 14, 2010 appeal letter to Guardian that the claim turned on the date it was determined that plaintiff was disabled, not on the date he ceased trading, he relied on the "June 10, 2010 Medical Record of Dr. Douglas Schottenstein, NYSpinemedicine, which for the first time gives [plaintiff] a date of disability on May 13, 2010" (emphasis added). Defendants ceased acting as plaintiff’s attorney on December 23, 2009, well before the June 10, 2010 record was available.

The documentary evidence further demonstrates that defendants’ submissions to Guardian were based on the information available to them. Defendants were retained to file a disability claim on April 28, 2009, which predates the date on which plaintiff claims it was determined that he was disabled. Plaintiff’s claim form, dated September 2, 2009, states that April 9, 2009 was the date that he became unable to work because of illness or injury. While plaintiff asserts that he signed the claim form in blank, the e-mail he relies on shows that he was provided with a draft claim form, asked to review it and complete the unanswered questions, and told that the information would then be typed into the form he signed. Further, on September 9, 2009, plaintiff sent defendants an e-mail stating that "[m]y last trading day was [A]pril 8th." Defendants relied on that date to complete the disability claim form, which they submitted to Guardian that day.

Defendants also submitted to Guardian Dr. Afshin Razi’s physician’s statement, dated August 27, 2009, which states that Dr. Razi first evaluated plaintiff for his back condition on May 27, 2008, and last treated him on March 19, 2009, and that plaintiff had "[m]oderate limitations of functional capacity; capable of clerical/administrative (sedentary) activity (60-70%)" (footnote omitted). Dr. Razi added that plaintiff "cannot carry heavy bag or be on the trading floor where he may be jostled[,] which may injure his back."

Consistent with the foregoing, the employer section of plaintiff’s disability claim, dated September 25, 2009, states that the date the disability began was "unknown," that the last date plaintiff worked on the "floor" was April 7, 2009, and that the reason for leaving work was a disability. Defendants also provided Guardian with Dr. Razi’s and Dr. Schottenstein’s medical records, the receipt of which Guardian confirmed in a letter dated October 20, 2009, in which Guardian advised defendants that it had requested additional information directly from the doctors. "

7 related legal malpractice actions are now joined and will be jointly tried in Nassau County.  in Alizio v Feldman   2012 NY Slip Op 05378   Decided on July 5, 2012   Appellate Division, Second Department   we see the aftermath of a partnership battle.  "The plaintiffs commenced this action, inter alia, to recover damages for legal malpractice, alleging, among other things, that the defendants were negligent in representing the plaintiffs in connection with the preparation and execution of a partnership settlement agreement and management agreement. In an order entered April 4, 2011, the Supreme Court denied the plaintiffs’ motion pursuant to CPLR 602(a) to join this action for trial with an action entitled Alizio v Perpignano, pending in the Supreme Court, Nassau County, under Index No. 19181/03, and several related actions involving, among other things, the sale of the partnerships’ assets, on the ground that joinder would lead to confusion and unwieldiness, and might delay the malpractice case (see Alizio v Perpignano, 78 AD3d 1087). The plaintiffs appeal, and we reverse.

Where, as here, common questions of law or fact exist, a motion pursuant to CPLR 602(a) for a joint trial should be granted absent a showing of prejudice to a substantial right of the party opposing the motion (id. at 1088; see Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540, 540; Perini Corp. v WDF, Inc., 33 AD3d 605, 606). Here, the defendants failed to show prejudice to a substantial right if this action is joined with others for trial (see Moor v Moor, 39 AD3d 507, 507-508). Moreover, mere delay is not a sufficient basis to justify the denial of a joint trial (see Perini Corp. v WDF, Inc., 33 AD3d at 606; Alsol Enters., Ltd. v Premier Lincoln-Mercury, Inc., 11 AD3d 494, 496). [*2]

Accordingly, the Supreme Court should have granted the plaintiffs’ motion to join this action for trial with the action entitled Alizio v Perpignano, pending in the Supreme Court, Nassau County, and several related actions previously joined for trial.

Justice Judith Gische writes clear and unambiguous decisions, and often, one side or the other gets hurt. Schindler v Lester Schwab Katz & Dwyer, LLP ; 2011 NY Slip Op 31519(U); Supreme Court, New York County; Docket Number: 115967/2010; Judge: Judith J. Gische is one example.

Plaintiff was sued by law firm 1 for fees. He retained defendants Lester Schwab to defend him in the attorney fee issue. This is an unusual choice for defense of a legal fee case, since it is likely that the Lester Schwab bills to defend an attorney fee case will equal the fees being sought in the case. Nevertheless, the defense ensued and the case went bad. Eventually, Lester Schwab also asked to be relieved, and cited fee issues. A default judgment was later entered against plaintiff for discovery failures. Was Lester Schwab negligent in the way it defended plaintiff?

"Here, the issue in dispute is the defendants’ alleged legal malpractice. The doctrine of collateral estoppel is a flexible doctrine grounded in the facts and realities of a particular litigation which should not be rigidly or mechanically applied since it is, at its core, an equitable doctrine reflecting general concepts of fairness (Buechel v. Bain, 97 N.Y.2d at 303). Applying this legal principle, it is readily apparent that the issue of whether Lester Schwab capably represented Schindler in the legal fees action was decided, not only in Judge Kornreich’s decision granting Lester Schwab’s motion and in the decision granting Fish & Richardson’s motion to strike Schindler’s answer and
allowing it to enter a default judgment against him, but also addressed in the decision of Judge Richter rendered on appeal. The decisions by Judge Kornreich were before the Appellate Division when Schindler appealed and it is clear from Judge Richter’s decision that the Appellate Division rejected all of Schindler’s explanations and defenses for why he failed to provide discovery.
In any event, even if the court were persuaded that Schindler’s claims are not collaterally estopped by the events that preceded this action, based on this record, plaintiffs claims are entirely too speculative to support a recovery against the defendants, affording the plaintiff the benefit of every possible inference (Lombardi v. Giannattasio, 192 A.D.2d 512 [2nd Dept.,1993]). Although Schindler has the right to rest on his complaint in opposing the motion to dismiss, he has not provided a sworn affidavit in support of his cross motion explaining why he did not comply with Judge Kornreich’s discovery orders once he obtained new counsel. His failure to make
amends belies any claim that Schindler “misunderstood” the proceedings against him or
was mislead by counsel about what his discovery responsibilities were. As for Schindler’s claims against Attorney Murphy individually, they are entirely without any factual basis. Attorney Murphy provided the November 26, 2008 affidavit because he was ordered to by Judge Kornreich pursuant to her order of November 6, 2008. The order was issued in connection with Fish & Richardson’s motion for leave to serve a subpoena on Schindler. She ordered that Fish & Richardson “seek and obtain an affidavit from someone with knowledge from plaintiffs prior firm Lester Schwab,
(Jonathan Murphy), as to whether a copy of my decision relieving them as counsel was
served upon defendant and when.” Thus, Attorney Murphy’s affidavit was little more than an affidavit of service, not the destructive document that Schindler portrays it to be.

Defendants’ motion for the imposition of sanctions pursuant to Part 130-1 .l[c] furnished Schindler and his attorneys with adequate notice that such relief would be considered and renders a formal hearing unnecessary (Minister, Elders and Deacons of Reformed Protestant Dutch Church of City of New York v. 198 Broadway, Inc., 76 N.Y.2d 41 1 [1990; Dubai Bank Ltd v. Ayyub 187 AD2d 373 [1st Dept 19921). In deciding the what sanction should be imposed, the court has considered the time and attention this matter has involved and the severity (frivolity) of the claim made against
defendants. The court orders that plaintiff Schindler and his attorneys, the firm of Danzig, Fishman & Decea, pay the sum of $5,000 as costs to Lester Schwab and Jonathan A. Murphy, Esq. The Clerk shall enter judgment against Schindler and his attorneys, jointly and severally, in the manner provided in the decretal section appearing directly below."

Legal malpractice litigation is a complicated matter, with the need to prove hypothetical outcomes, requirements for experts, and proofs that things would have come out differently. It is not for the faint of heart. Pro-se litigants do poorly here.

In Kovitz v Wenig, Ginsberg, Saltiel & Greene, LLP ; 2011 NY Slip Op 50768(U) ; Appellate Term, Second Department we see one such unfortunate outcome. "Plaintiff commenced this small claims action seeking to recover $2,000 as a result of defendant’s alleged legal malpractice. At the nonjury trial, plaintiff testified that he had retained defendant to commence an action for illegal eviction "done by lock-out without a warrant." Plaintiff stated that defendant had repeatedly failed to properly serve a necessary party to the action, which had resulted in the dismissal of that action. Plaintiff further asserted that defendant had failed to verify the necessary party’s residence or effectuate service through alternative methods. A partner in defendant’s firm testified that her firm could not properly serve the necessary party because plaintiff had provided the firm with the party’s incorrect addresses, and plaintiff had refused to pay the cost of an investigator to ascertain the party’s actual residence. The partner further contended that, in any event, defendant had failed to prove his damages. The Civil Court found that plaintiff had failed to establish a prima facie case of legal malpractice and dismissed the action. "

"The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000])." "Since the court’s findings and conclusions are supported by the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (CCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126). Accordingly, the judgment is affirmed"

One of the crucial questions to be asked in legal malpractice litigation is when did the representation end. This question comes only shortly after the question of when did the negligent event take place. The statute of limitations is three years from the negligent event or the last date that the attorneys represented the client, whichever is later.

Years ago it was possible to extend that time to 6 years, under a breach of contract theory, but the legislature simply voted that method away. Here, in Daniels v Turco ; 2011 NY Slip Op 03990
Decided on May 10, 2011 ;Appellate Division, Second Department we see how the theory plays out.
 

"The cause of action alleging legal malpractice accrued no later than April 18, 2005, when the defendants returned the case file to the plaintiff with an accompanying letter of discharge. That date was more than three years before the commencement of this action in June 2009 (see CPLR 214[6]; McCoy v Feinman, 99 NY2d 295, 301; Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749). Contrary to the plaintiff’s assertion, there was no evidence of any continuous ongoing relationship between the plaintiff and the defendants after the file was returned and, therefore, the continuous representation doctrine is not applicable (see Shumsky v Eisenstein, 96 NY2d 164, 168-171; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488; Daniels v Lebit, 299 AD2d 310; Wester v Sussman, 287 AD2d 618). Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the legal malpractice cause [*2]of action as time-barred (see CPLR 214[6]; Adler v Gershman, 305 AD2d 342, 342-343).

In addition, the plaintiff’s cause of action sounding in fraud was duplicative of the legal malpractice cause of action, because it arises from the same facts as the legal malpractice cause of action and does not allege distinct damages (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d at 749; Kvetnaya v Tylo, 49 AD3d 608, 609; Daniels v Lebit, 299 AD2d at 310; Mecca v Shang, 258 AD2d 569, 570). Accordingly, the fraud cause of action is likewise subject to the three-year limitations period (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750), and the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the fraud cause of action as time-barred. "
 

Manus v Flamm , 2011 NY Slip Op 31691(U); June 14, 2011; Supreme Court, New York County; Docket Number: 110026/2007; Judge: Debra A. James tells an interesting story of divorce, legal malpractice and itinerant jewelery. Plaintiff is the divorced wife, who is owed $ 1 million in the divorce. She borrows jewelery from the husband’s safe deposit and ends up in a world of trouble.

"In the FM action, FM initially sought to recover- possession of certain jewelry that, it alleges, Manus pledged as collateral against a $400,000 loan made by FM to her in 1994. FM alleges t h a t , after retrieving the jewelry from a jeweler to whom Manus had consigned it for sale, Manus failed to return it: to a safe deposit box maintained by her ex-husband, nonparty Allen Manus (deceased, November 2 0 0 3 ) , a founder of FM, in breach of the terms of the May 4, 1994 loan security agreement, as amended May 5, 1994. On September 28, 1999, Manus entered into a stipulation with FM, prepared by FM’s counsel and signed by Elizabeth Manus, Allen Manus’s wife and FM’s sole officer. Pursuant to the stipulation, Manus was authorized to retain the jewelry f o r nine months in order to sell it, and repay the $400,000 loan. The stipulation also provides that Manus’s cooperative apartment shares would be substituted for the jewelry as collateral under- a September 1999 stock pledge agreement . The ,st.stock:k pledge agreement identifies
Flamm as the escrow agent holding the stock certificates. Manus denies that she ever received $400,000 from FM, and contends that, therefore, the June 15, 1994 promissory note in
that amount bearing her signature is not enforceable.

With respect to the stipulation, Manus alleges that she signed it at Flamm’ s insistence, and that Flamm refused to explain the terms, and their ramifications, to h e r . Flamm ‘ alleges that Manus signed solely at Allen Manus’s urging, and without Flamm’a advice. Manus and Flamm both allege that Allen Manus agreed to arrange for FM to release Manus from the stipulation. Manus alleges that Allen Manus advised her to have her attorney, Flamm, contact FMIs attorneys to obtain.ain the
release. In November 2000, Flamm prepared a release and forwarded it to FM’s attorneys. Flamm alleges that , during the ensuing negotiations regarding the release terms, FM’s attorneys refused to permit FM t.o release Manus from liability because Allen Manus owed t h e m attorneys’ fees. Flamm further alleges that Elizabeth Manus refused to sign any document,t releasing Manus from liability, and that he was advised that she was the only individual with the authority to bind FM to the release.

Flamm’s own admissions regarding the underlying facts alleged in the complaint and the documentary evidence conclusively demonstrate that Flamm continuously represented
Manus with regard t o the FM action from October 1998 through January 2005."
 

Courts routinely scrutinize the actions of plaintiffs in legal malpractice cases, and we sometimes wonder whether their behavior receives a higher level of scrutiny than do other plaintiffs.  In G & M Realty, L.P. v Masyr   2012 NY Slip Op 05257    Decided on June 28, 2012   Appellate Division, First Department  the Court finds that the legal malpractice case was timely, but dismissible.
 

"Nonetheless, the complaint must be dismissed because plaintiff failed to show that any negligence on defendants’ part proximately caused it to be unable to exploit the commercial permit (see Leder v Spiegel, 31 AD3d 266, 267-268 [2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]; Brooks v Lewin, 21 AD3d 731, 734 [2005], lv denied 6 NY3d 713 [2006]).

Plaintiff’s principal, Gerald Wolkoff, testified that during the time the commercial special permit was in force, he would not have started construction without having secured a 600,000-square-foot tenant. He also testified that until the time he decided, for market reasons, to develop the building for residential rather than commercial use, he did not have a single entity committed to becoming a commercial tenant. Hence, before it made its independent, market-based decision to pursue residential development, plaintiff was never in a position to exploit the commercial permit. Thus, even assuming defendants were negligent in failing to inform plaintiff that the commercial permit would lapse unless renewed, their negligence did not cause plaintiff any loss. Wolkoff’s testimony that, even without any tenants, he would have proceeded with the [*2]commercial project if he had known that the permit was of finite duration fails to raise a genuine issue of fact. The testimony directly conflicts with his testimony that he would not have commenced construction without a commitment for a 600,000-square-foot tenant (see Schwartz v JPMorgan Chase Bank, N.A., 84 AD3d 575, 577 [2011]).

Plaintiff also failed to submit non-speculative evidence in support of its damages claims (see Leder, 31 AD3d at 268; Dweck Law Firm v Mann, 283 AD2d 292, 294 [2001]). Plaintiff claims damages of more than $73 million, based on the loss of the right to construct an additional 366,465 square feet of floor area on the property, the claimed market value of which was $150 to $200 per square foot. However, the only source plaintiff gives for these figures is Wolkoff’s opinion, and it identifies no factual support therefor in the record.

Plaintiff claims further that it incurred several hundred thousand dollars in professional expenses to pursue the residential permit. However, as indicated, the record demonstrates that plaintiff made an independent, market-based decision to pursue residential development of the property. Defendants established, through the uncontroverted report of their expert architect, that plaintiff could not have proceeded with a residential development under the commercial special permit. Thus, plaintiff would have had to file a new application and incur additional fees to pursue a residential development regardless of defendants’ alleged negligence. "

The rule has always been that a plaintiff must be able to allege actual innocense (reversal, acquittal or exonoeration) in order to sue a criminal defense attorney for legal malpractice.  Recently, in Dombrowsky v. Bulson,  2012 NY Slip Op 04203 (2012) the Court of Appeals trimmed possible bases for damages solely to economic damages.  No right to non-pecuniary damages remains.

Here, in Brownell v LeClaire   2012 NY Slip Op 05231   Decided on June 28, 2012   Appellate Division, Third Department we start to see some of the fallout. 
 

"As for his claim against McKeighan, plaintiff argues that McKeighan was negligent when he represented him and advised him to plead guilty to a crime he did not commit. In that regard, plaintiff sought damages for personal and psychological injuries, as well as other nonpecuniary losses he claims to have incurred as a result of his incarceration and wrongful conviction. A defendant in a criminal prosecution cannot recover for nonpecuniary damages that occur as a result of legal malpractice and, therefore, these claims made by plaintiff against McKeighan must be dismissed (see Dombrowski v Bulson, ___ NY3d ___, 2012 NY Slip Op 04203 [2012]). However, McKeighan’s motion papers fail to address plaintiff’s claim that he sustained economic damages as a result of McKeighan’s alleged legal malpractice. As a result, while we have serious reservations about the validity of these claims, we are, at this stage of the proceedings, constrained to find that a question of fact exists as to whether plaintiff incurred such economic damages as a result of McKeighan’s alleged legal malpractice. "