It’s pretty well accepted that a legal malpractice claim accrues on the date the mistake is made, but in . DURAN, -v-  MOODY, REDNISS MOODY LLP, EDWARD J. GREENFIELD, LAW OFFICE OF EDWARD J. GREENFIELD,  Defendants.  o. 11 Civ. 6155 (LTS)(JLC)  UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK   2012 U.S. Dist. LEXIS 97977 we see the elusive alternative theory of accrual.  That (once in a great while) alternative theory is that a cause of action acrues only when plaintiff suffers an injury which entitles her to relief. 
 

"Greenfield argues that Duran’s claims are barred by New York’s three-year statute of limitations for legal malpractice claims. See N.Y. C.P.L.R. § 214. According to Greenfield, the statute of limitations commenced with his termination in February 2007 — four years prior to the filing of the complaint. However, the statute of limitations for a malpractice claim accrues when the plaintiff suffers an injury that entitles her to relief. Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541 (1994); see also Kronos. Inc. v. AVX Corp., 81 N.Y.2d 90, 94 (1993). While the Complaint alleges that Greenfield had acted negligently as of February 2007, there is no indication that [*7] Greenfield’s alleged negligence resulted in any legally cognizable injury prior to May 13, 2009, when the New York Supreme Court granted summary judgment as to most of Plaintiff’s claims. Plaintiff’s suit against Greenfield was therefore timely filed."

The Fourth Department, in what we see as strong terms, reiterated that it is always the attorney’s job to prepare the case, and that responsibility may not be shifted to the client. Even when the client participates in the preparation it remains a responsibility of the attorney.

In Rupert v Gates & Adams, P.C. ;2011 NY Slip Op 02554 ; Decided on April 1, 2011 ; Appellate Division, Fourth Department the AD not only says that it was the obligation of the attorneys to trace and investigate matrimonial assets, but that they themselves had to do the work.
 

"We further conclude, however, that the foregoing waiver analysis does not apply with respect to plaintiff’s aforementioned claims that defendants were negligent with respect to the investigation and valuation of plaintiff’s separate property, their investigation of the payment of the sum of $315,000 relative to a note held by plaintiff, and their investigation of the deposit by plaintiff of approximately $60,000 in pension monies into a joint account. Defendants failed to meet their initial burden on those parts of the motion concerning those claims (see Pignataro, 38 AD3d 1320; see generally Zuckerman, 49 NY2d at 562). The waiver analysis based on plaintiff’s global settlement does not apply to those purported deficiencies in defendants’ representation of plaintiff in the matrimonial action because the appeal from the final judgment in the matrimonial action would not have permitted defendants or substitute counsel for plaintiff to address questions regarding the failure to trace plaintiff’s separate property into the marriage and to locate evidence both proving plaintiff’s payment of $315,000 on an outstanding note and demonstrating that $60,000 of plaintiff’s pension monies had been transferred to a joint account to be shared with plaintiff’s former wife. Finally, defendants will not be heard to contend that plaintiff’s involvement with the preparation of the matrimonial action for trial bars him from raising those deficiencies. An attorney generally is not permitted to shift to the client the legal responsibility that the attorney was hired to undertake because of his or her superior knowledge (see Northrop v Thorsen, 46 AD3d 780, 783). Indeed, it is well settled that "[a]n attorney has the responsibility to investigate and prepare every phase of his [or her] client’s case" (Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 453 [internal quotation marks omitted]). "

Legal malpractice litigation is aimed at a large variety of events.  Damages are suffered by clients in two distinct areas.  One is where an underlying damage award is lost. Think auto accident which should have netted personal injury award is brought too late.

A second area of damages is unnecessary legal fees to remedy an attorneys mistake.  This variety is what we see in Board of Mgrs. of Bay Club v Borah, Goldstein, Schwartz, Altschuler & Nahins, P.C.   2012 NY Slip Op 05486   Decided on July 11, 2012   Appellate Division, Second Department.  Here is the AD decision: 
 

"To state a cause of action to recover damages for legal malpractice, a plaintiff must allege that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession," and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (Leder v Spiegel, 9 NY3d 836, 837 [internal quotation marks omitted], cert denied sub nom. Spiegel v Rowland, 552 US 1257; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; McCoy v Feinman, 99 NY2d 295, 301-302; Gioeli v Vlachos, 89 AD3d 984; Dempster v Liotti, 86 AD3d 169, 176). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Gioeli v Vlachos, 89 AD3d 984; Snolis v Clare, 81 AD3d 923, 925; Cervini v Zanoni, 95 AD3d 919).

Here, accepting as true the facts alleged in the complaint and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Polonetsky v Better Homes Depot, 97 NY2d 46, 54; Guggenheimer v Ginzburg, 43 NY2d 268, 275; Peery v United Capital Corp., 84 AD3d 1201; Sokol v Leader, 74 AD3d 1180, 1180-1181; Reid v Gateway Sherman, Inc., 60 AD3d 836, 837; Roth v Goldman, 254 AD2d 405, 406), the complaint adequately stated a cause of action to recover damages for legal malpractice by alleging that during its representation of the plaintiff in an underlying lien foreclosure action, the defendant negligently filed an unverified notice of lien (see Real Property Law §§ 339-z, [*2]339-aa), and that such negligence proximately caused the plaintiff to incur increased legal expenses by having to defend the validity of the lien against challenges by the defendant in the underlying action (see VDR Realty Corp. v Mintz, 167 AD2d 986; Wolstencroft v Sassower, 124 AD2d 582, 582). Further, the fact that the plaintiff may ultimately prevail in the underlying action is not an intervening cause requiring dismissal of this action (see Fireman’s Fund Ins. Co. v Farrell, 289 AD2d 286, 288; Home Ins. Co. v Liebman, Adolf & Charme, 257 AD2d 424; VDR Realty Corp. v Mintz, 167 AD2d 986; Wolstencroft v Sassower, 124 AD2d at 582; see also DePinto v Rosenthal & Curry, 237 AD2d 482, 482)".

Client was sued for legal fees and counterclaimed for legal malpractice.  As has happened many times before, a bankruptcy filing prior to the law suit deprives client of the capacity to sue the attorneys.  How does this happen?

In the Bankruptcy petition, one must schedule all potential claims that one reasonably knows of. This includes a potential, even if inchoate, cause of action against the attorney.  The Second Department explains in Potruch & Daab, LLC v Abraham   2012 NY Slip Op 05505
Decided on July 11, 2012   Appellate Division, Second Department :

"The Supreme Court properly granted the plaintiff’s motion to dismiss the counterclaims to recover damages for, among other things, legal malpractice. The failure of a party to disclose a cause of action as an asset in a prior bankruptcy proceeding, which the party knew or should have known existed at the time of that proceeding, deprives him or her of "the legal capacity to sue subsequently on that cause of action" (Whelan v Longo, 23 AD3d 459, 460, affd 7 NY3d 821; see Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 195-196; Santori v Met Life, 11 AD3d 597, 599; 123 Cutting Co. v Topcove Assoc., 2 AD3d 606, 607).

Here, it is undisputed that the defendant did not disclose, in a bankruptcy petition that he filed in September 2007, the existence of the causes of action he now asserts as counterclaims. The plaintiff showed, prima facie, that at the time of the filing of that petition the defendant knew or should have known of the existence of those causes of action, and the defendant failed to raise a triable issue of fact in opposition to that prima facie showing (see Wright v Meyers & Spencer, LLP, 46 AD3d 805; Hansen v Madani, 263 AD2d 881, 883; see also Whelan v Longo, 23 AD3d at 460). Further, under the circumstances of this case, the fact that the defendant’s bankruptcy petition was later dismissed does not change this result (see Nationwide Assocs., Inc. v Epstein, 24 AD3d 738, 739; see also Kunica v St. Jean Financial, Inc., 233 B.R. 46, 53-54). Moreover, although the defendant stated in his opposition to the plaintiff’s motion that, in 2010, he filed a second bankruptcy petition in which he did disclose his malpractice cause of action, in support of that claim he submitted only a single page of the Schedule of Assets from that petition. He also submitted no evidence as to the ultimate disposition of the second bankruptcy petition. He therefore failed to raise a triable issue of fact as to whether he regained his capacity to assert his legal malpractice claims against the plaintiff by filing the second bankruptcy petition (see Nationwide Assoc., Inc. v Epstein, 24 AD3d at 739). "

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"