Client trips and falls because of a defect in a parking lot. Client goes to attorney who fails to commence the case within the statute of limitations.  Client sues attorney who comes up with very inventive defenses.  What happens to the case on summary judgment?

in Duque v Perez   2012 NY Slip Op 03593   Decided on May 8, 2012   Appellate Division, Second Department  plaintiff wins, so far.  "The plaintiff Jairo Duque (hereinafter Duque) allegedly slipped and fell in a hole in a parking lot at a medical facility in Middletown. He and his wife allegedly retained the defendant attorneys to commence a personal injury action on his behalf (hereinafter the underlying action). After the statute of limitations had expired, the medical facility filed an answer containing an affirmative defense that it did not own the property. The defendant Allan Kuslansky presented the plaintiffs with a general release, which they executed, and informed them that Duque had "a better medical malpractice case" against the doctor who, after the accident, performed surgery on Duque’s knee. The underlying action was discontinued. "

"Here, Perez and Lewis failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, as the evidence they submitted failed to eliminate a triable issue of fact as to whether there was an attorney-client relationship between them and the plaintiffs (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Nelson v Roth 69 AD3d 912, 913). Moreover, contrary to their contention, Perez and Lewis failed to establish, prima facie, that the legal malpractice cause of action was time-barred (see 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704, 705). Further, all of the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, since they failed to submit evidence supporting their contention that their alleged malpractice did not cause the plaintiffs to sustain any losses because the plaintiffs would not have been able to establish that the premises owner had actual or constructive notice of the alleged defective condition.

Accordingly, since the defendants failed to meet their prima facie burden on their motions for summary judgment, those branches of the defendants’ respective motions which were for summary judgment dismissing the cause of action alleging legal malpractice insofar as asserted against each of them were properly denied, regardless of the sufficiency of the plaintiffs’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). "

Experts are often needed in litigation, and always in medical malpractice litigation. Med Mal cases are lost and it is sometimes thought that they are lost because of experts. Was the expert good enough? Did the expert "give" the departures?

In Healy v Finz & Finz, P.C. 2011 NY Slip Op 01616  Appellate Division, Second Department we see an awful choice foisted on parents. Mother has triplets, one is dying in utero. The two others are well but very small, and at risk for low birth weight. What to do?
 

One child was "born with periventricular leukomalacia, a form of cerebral palsy that renders him dependent on others for his basic needs. There is no dispute that the infant plaintiff’s condition resulted from him sharing a placenta with his deceased brother.

"The plaintiffs retained the defendant law firm, Finz & Finz, P.C. (hereinafter the firm), to represent them in the underlying medical malpractice action, which they commenced in 1997. The firm’s theory of the case was that the doctors should have delivered the surviving babies immediately after learning of Sean’s death, and that the delay caused Kevin’s injury. Most of the defendants in the medical malpractice action obtained summary judgment dismissing the complaint insofar as asserted against them, and the one defendant who went to trial obtained a directed verdict dismissing the case. The plaintiffs’ expert medical witnesses were unable to testify as to when Kevin’s injury occurred, acknowledging that it could have been immediately after Sean’s death. Thus, the Supreme Court held that the plaintiffs could not establish the proximate cause element of medical malpractice. This Court affirmed (see Healy v Spector, 287 AD2d 541). "

"The plaintiffs thereafter commenced the instant action alleging legal malpractice [*2]against the firm. The firm moved for summary judgment dismissing the complaint, submitting in support the affirmations of three physicians, in which they stated that Kevin’s injury was caused by Sean’s death. The plaintiffs submitted the affirmation of their own expert physician in response, who stated that, although Sean’s death caused Kevin’s injuries, the damage would have occurred over time. They also submitted the affirmation of an attorney, who stated that the firm failed to exercise the care and skill commonly exercised by a member of the legal profession, because its attorneys failed to find an appropriate medical expert. The Supreme Court denied the firm’s motion for summary judgment dismissing the complaint. We reverse"

""Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby exposing themselves to liability for malpractice" (Iocovello v Weingrad & Weingrad, 4 AD3d 208, 208). Here, the firm established, prima facie, that its choice of experts in this case was a reasonable course of action, and the plaintiffs failed to raise a triable issue of fact in opposition. The conclusory assertion of the plaintiffs’ expert attorney—that the firm simply chose the wrong experts—is insufficient to sustain a cause of action alleging legal malpractice (see Dimond v Kazmierczuk & McGrath, 15 AD3d 526, 527). Moreover, the affirmation of the plaintiffs’ expert physician was itself conclusory and was, thus, insufficient to raise a triable issue of fact in opposition to the motion for summary judgment (see Brady v Bisogno & Meyerson, 32 AD3d 410). As the firm demonstrated that it could not have proven proximate cause in the underlying medical malpractice action, and as the plaintiffs failed to raise a triable issue of fact in opposition, the Supreme Court should have granted the firm’s motion for summary judgment dismissing the complaint (see generally Zuckerman v City of New York, 49 NY2d 557, 562). "
 

If the underlying transactions and relationships are confusing, try to figure out who did what in this legal malpractice case.  Was Nahzi a borrower or a lender?  Did anyone pay $ 90,000 for a $500,000 stake in a parking lot?  Why is the accountant so angry?  How come no one defended the motion to dismiss?  How did a party allow his name to be changed to Nazi in a contract ?

Lieblich v Pruzan   2012 NY Slip Op 31140(U)   April 28, 2012  Sup Ct, NY County
Docket Number: 104523/11  Judge: Paul G. Feinman is worth reading just to try to figure out who did what to whom. 

"Pruzen, an attorney, was retained in 2006 by plaintiffs to represent them in, amongst other things, a litigation entitled Nahzi v Liebllch, Index No, 112000/06, brought in this court (underlying action). Biberaj was not a party in the underlying action. Fron Nahzi (Nahzi), plaintiff in the underlying action, sued Lieblich over his claimed ownership interest in a company
called Lot 1555 COT. (Lot), a company that had been formed to purchase real property located at
1555 Bruckner Boulevard in the Bronx (property). ,Nahzi claimed that he had been deprived of
his rightful 25% share in Lot when the property was sold. Nahzi claims to have paid $90,000 for
his interest in Lot. The remaining 75% was owned by Licblich. Biberaj was not a shareholder in
Lot.
The arrangement between Nahzi and Lieblich as to their ownership in Lot is manifest in a Shareholders Agreement (Motion, Ex. 4)(Shareholder’s Agreement), in which Nahzi (identified
therein as Nazi’) is accorded 50 out of 200 shares’in Lot, in exchange for a capital expenditure of
$90,000.

Plaintiffs now claim that Pruzan committed malpractice when he failed to interpose a defense in the underlying action of “no consideration,’’ establishing that Nahzi had never paid for his interest in Lot. Plaintiffs argue that Pruzan failed to conduct discovery which would have revealed evidence raising questions of fact as to Nahzi’s interest in Lot, and his purchase of the cooperative apartment. Specifically, plaintiffs point to evidence elicited in a second underlying action, Lot 155
Corp v Nahzi, Index No. 10 1973/09 (second underlying action), in which plaintiffs sought to recover the $165,000 loan allegedly made to Nahzi. In that action, plaintiffs obtained affidavits from the seller of the cooperative apartment, Daniel Perla (Perla), and Nahzi’s accountant, Ronald Eletto (Eletto), which allegedly provide evidence that Nahzi paid no consideration for his interest in Lot, or that he surrendered any interest he might have had in Lot in exchange for the purchase of the cooperative apartment.

The complaint also raises allegations that Pruzan committed malpractice by, in the underlying action, failing to seek a recovery of various “Co+orate Expenses” allegedly owed by Nahzi. Complaint, 7 27. Plaintiffs never attempt to defend Pruzan’s motion to dismiss this  claim,
and it is dismissed.

Eletto was Nahzi’s personal income tax preparer until 2005. The affidavit of Eletto is a puzzlingly vituperative diatribe against his ex-client, replete with bold and underlined passages emphasizing Eletto’s manifest animus towards Nahzi.’ In his affidavit, Eletto remarked on an affidavit by Nahzi submitted in a preceding action, to the effect that Nahzi borrowed the $165,000 from Bibcraj to purchase the cooperative apartment, and that, prior to the loan, Biberaj was indebted to Nahzi in excess of that amount for unpaid commissions from the sale of real estate and other loans. Elctto opines that these statements are “materially false and-or otherwise misleading” (Aff. of Eletto, at 3) because Nahzi had never told him about any earned commissions; that Nahzi worked for Biberaj; or was owed, or loaned money to, Biberaj. Eletto insists that he would have known these things, and, that if these statements were true “Nahzi should have reported that transaction as income to him for the year 2001, which he did not.” Id. at 4. Eletto goes so far as to suggest that failure on Nahzi’s part to report a commission earned by him “could be considered tax evasion.” Id. Eletto
enthusiastically offers to reveal his client’s personal tax returns, if so subpoenaed.

In Aramarine Brokerage, Inc. v Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.    2012 NY Slip Op 03533    Decided on May 3, 2012    Appellate Division, First Department  the question of whether appellate counsel’s failure to argue that the basis for his client’s loss in District Court was an impermissible argument raised only in reply is now the basis of a legal malpractice claim.
 

"Plaintiff, an insurance broker, seeks to recover for legal malpractice arising out of defendant law firms’ successive representation of it in connection with an underlying federal action against a group of insurers (the CGU insurers). In the federal action, the CGU insurers moved for, inter alia, summary judgment on their counterclaims for a return of insurance brokerage commissions paid in connection with premiums subsequently returned, on the ground that plaintiff’s claim of an oral agreement between the parties was controlled by New York law and was unenforceable pursuant to the statute of frauds. The CGU insurers argued for the first time in reply that the oral agreement also failed for lack of consideration. Plaintiff, then represented by Hall Estill, neither objected to the CGU insurers’ raising this issue in reply nor sought to submit a sur-reply. The district court (Casey, J.) granted the CGU insurers’ motion, finding that the oral modification was subject to New York law and was unenforceable under New York’s statute of frauds. The court found, alternatively, that plaintiff "failed to establish that any consideration was given in exchange for the alleged agreement" (American Hotel Intl. Group Inc. v CGU Ins. Co., 2004 WL 626187 *7 n 7, 2004 US Dist LEXIS 5154, *25 n 7 [SD NY 2004], vacated in part 307 Fed Appx 562 [2d Cir 2009]). On appeal by EB & G, the Second Circuit vacated the finding that New York law and the statute of frauds applied to the oral modification. Neither EB & G’s appellate brief nor the Second Circuit’s decision addressed the district court’s alternative holding of "no consideration." [*2]"

"On remand, the district court (McMahon, J.) held that, although Judge Casey could have disregarded the argument first raised in reply, his "no consideration" ruling was "law of the case," because it had not been reversed on appeal (American Hotel Intl. Group Inc. v OneBeacon Ins. Co., 611 F Supp 2d 373, 379 [SD NY 2009], affd 374 Fed Appx 71 [2d Cir 2010]). Judge McMahon noted that plaintiff had not, inter alia, objected to Judge Casey’s consideration of this argument on reply, or sought leave to file a sur-reply, or raised the issue on the prior appeal and reconsideration motions (id. at 376). She observed that, while the Second Circuit could have responded favorably to an abuse of discretion argument, it was "equally likely" to have "viewed with disfavor" plaintiff’s failure to raise the issue before the district court, and concluded that, "[h]aving passed up every conceivable opportunity to raise this issue . . . [plaintiff] has waived any right to argue . . . that Judge Casey erred by considering the belatedly-raised no consideration’ argument" (id. at 376, 377). "

"The complaint alleges that EB & G’s failure to address the "no consideration" ruling in its appellate brief in the first federal appeal resulted in plaintiff’s inability to defend against the CGU insurers’ counterclaims. By thus alleging "facts from which it could reasonably be inferred that defendant’s negligence caused [plaintiff’s] loss," the complaint states a cause of action for malpractice (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435 [2011], citing InKine Pharm. Co. v Coleman, 305 AD2d 151 [2003]). In opposition to EB & G’s motion, plaintiff was not required to show a "likelihood of success" (id. at 436). "

Plaintiff is injured in a motor vehicle accident at an intersection with an inoperative traffic light.  His attorney failed to commence the action within the statute of limitations.  Legal malpractice case is started and proceeds through summary judgment.  Supreme Court denies summary judgment to defendants who appeals.

In Reisner v Litman & Litman, P.C. 2012 NY Slip Op 03428   Decided on May 1, 2012   The Appellate Division, Second Department  reverses and issues a blanket finding that neither the County nor the Contractor "could" have been liable.  "In this case, in opposition to the defendants’ prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether he could have prevailed had the defendants commenced a timely action on his behalf to recover damages for personal injuries against the County of Nassau. The County’s Department of Public Works determined, in September 2003, that the traffic signal at the intersection where the plaintiff allegedly was injured in an accident should be rebuilt. However, the signal work was not completed until August 11, 2004. The plaintiff’s accident occurred on July 18, 2004. Contrary to the determination of the Supreme Court, under the circumstances, the County was immune from liability under the doctrine of qualified immunity (see Friedman v State of New York, 67 NY2d 271, 283; Weiss v Fote, 7 NY2d 579, 584), as the County’s delay in the rebuilding and installation of the traffic signal was not unreasonable in the context of the County’s attempts to remedy a known dangerous highway condition once the decision was made to rebuild (see Friedman v State of New York, 67 NY2d at 284; cf. Bresciani v County of Dutchess, N.Y., 62 AD3d 639, 640; Witkowski v Escobar, 28 AD3d 543, 544; Onorato v City of New York, 258 AD2d 633, 634).

In the amended complaint, the plaintiff did not plead a cause of action to recover damages for legal malpractice on the ground that the defendants failed to commence a personal injury action against the County’s contractor, Welsbach Electric Corp. (hereinafter Welsbach) (cf. Boyle v Marsh & McLennan Cos., Inc., 50 AD3d 1587, 1588). Nevertheless, the Supreme Court concluded that there was a triable issue of fact as to whether the plaintiff could have successfully commenced a personal injury action against Welsbach. The Supreme Court erred in addressing, sua sponte, Welsbach’s potential liability. In any event, for the same reasons set forth herein with regard to the County, the plaintiff could not have prevailed had the defendants commenced a timely action on his behalf to recover damages for personal injuries against Welsbach.

We have come to believe that an artificially large number of legal malpractice cases are dismissed at the pleading stage, generally in an early "but for" analysis by the Court.  Courts (in our anecdotal opinion) delve far further into the underlying case in legal malpractice litigation than they do elsewhere.  Granted, legal malpractice is unique, and one must always prove a case within a case, but nevertheless.

Here, in Magnus v Sklover ; 2012 NY Slip Op 03415 ; Decided on May 1, 2012 ; Appellate Division, Second Department Justice Lefkowitz in Supreme Court, Westchester County denied defendants three-headed motion to dismiss.  She was affirmed on appeal.
 

"The Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging legal malpractice based on documentary evidence. A motion pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "

"Accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, the complaint states a legally cognizable cause of action sounding in legal malpractice (see Guayara v Harry I. Katz, P.C., 83 AD3d 661). Thus, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice. "

"In addition, the Supreme Court properly denied that branch of the defendants’ motion which was, in the alternative, to disqualify the plaintiff’s attorneys. "The advocate-witness rules contained in the Rules of Professional Conduct (see 22 NYCRR 1200.0) provide guidance, but are not binding authority, for the courts in determining whether a party’s attorney should be disqualified during litigation" (Trimarco v Data Treasury Corp., 91 AD3d 756, 757; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 440)."

In this case, the court permits client to plead fraud even though legall malpractice is time barred.  Why? Unsophisticated client retains attorney for a first time purchase of a business.  Attorney undertakes complicated transaction for $ 3000.  As soon as the contract is ready, attorney tells client to sign a wavier, and then seems to have a conflict of interest and starts to represent the landlord and undertakes to evict the client.’

Hernandez v Marquez   2012 NY Slip Op 31112(U)   April 20, 2012   Supreme Court, New York County  Docket Number: 103531/11  Judge: Joan A. Madden:

"In October 2007, Hernandez retained Marquez, an attorney, who represented to her that he was competent to handle all aspects of the purchase of a restaurant and the acquisition of a liquor license. (Amended Complaint, 7 3). Hernandez “made it very clear to [Marquez] that she had never purchased a business before this particular purchase transaction, that she had no experience purchasing a business and that she had to rely on him completely for all aspects of the purchase of the restaurant with a liquor license.” (u 7 4). Marquez “promised that he would perform in the manner required by [Hernandez] and that she had nothing to worry about [if] she contracted with him” (a 7 5). In consideration for these promises to properly handle the purchase of the restaurant and the acquisition of the liquor license, Hernandez paid Marquez $3,000.

In reliance of Marquez’s advice, including representations that the liquor license could be  transferred from the seller, so long as Hernandez was not convicted of any crimes, Hernandez contracted with the seller to purchase the business. (Ig 7 8). The purchase was accomplished through a Stock Transfer Agreement entered into on October 2,2007, a copy of which is annexed to the proposed amended complaint. The Agreement made the obtaining of a liquor license for the Restaurant a condition of the purchase. As soon as she told Marquez that she was not convicted of any crimes, Marquez had her sign a waiver, which states in pertinent part: Parties represent and state that notwithstanding anything to the contrary in documents for the above purchase, that [Hernandez Is irrevocably purchasing said store and waives condition of approval by the State of New York Liquor Authority and Beverage Control Board, and further states that he/she is qualified
for an off-premises beer license,After signing the waiver, Hernandez paid the seller $30,000 as a down payment for the business, at which time Marquez advised Hernandez to pay for the seller’s landlord $10,000 rent arrears due and owing from the seller, and instructed Hernandez to execute a new lease with the landlord, which required $5,250 as a security deposit and as monthly rent ( 7 19). There may have been a conflict of interest that caused Marquez to have Hernandez sign the waiver, since Marquez now represents the landlord in an action to evict Hernandez from her apartment 18). If Marquez had told Hernandez the truth about the waiver, Hernandez would not have gone through with the purchase of the restaurant until she had secured a liquor license. 7 20).
However, “[s]olely due to assurances, representations, advice and direction of the Marquez,
Hernandez was caused … to close the transaction with no approval from the State Liquor
Authority.”

Due to Marquez’s misrepresentations and omissions, “includ[ing] his directing Hernandez to execute a lease and pay rent of $5,250 a month, which she paid for over a year, for a premises which she believed that she would have a restaurant and liquor license,” Hernandez suffered damages (Id, 7 27). As a result of her reliance on Marquez’s representations, Hernandez alleges that she had become indebted to the seller for $91,350,000.In addition, contrary to Marquez’s representations, the liquor license for the restaurant could not be secured.