Truebright Co., Ltd. v Lester ; 2011 NY Slip Op 04235 ; ;Appellate Division, Second Department is yet another example of a lost legal malpractice case, but not based upon the innocence or non-departure of the attorney. In fact, just as in a recent case dismissed because the statute of limitations had passed on a case the attorney failed to file, here, there was a lack of capacity to sue. Was it a bankruptcy filing that killed the capacity? Was it a sale of the business to another that killed the capacity? We do not know.
 

What we do know is:

"Under the circumstances, the Supreme Court did not improvidently exercise its discretion when it, in effect, granted the defendant’s motion for leave to amend his answer, as the proposed amendment was neither palpably insufficient nor patently devoid of merit, and there was no evidence that it would prejudice or surprise the plaintiffs (see CPLR 3025 [b]; Matter of Roberts v Borg, 35 AD3d 617, 618; Public Adm’r of Kings County v Hossain Constr. Corp., 27 AD3d 714, 716). To the extent that the plaintiffs "wish[ ] to test the merits of the proposed added . . . defense, [they] may . . . move for summary judgment upon a proper showing" (Lucido v Mancuso, 49 AD3d 220, 229). "
 

Attorney fee disputes often blossom into legal malpractice cases, although Stephan B. Gleich & Assoc. v Gritsipis ; 2011 NY Slip Op 05483 ;  Appellate Division, Second Department is not one of these. Nevertheless, it is one of the longest attorney fee disputes in memory. The case itself started in 1993 as the AD tells us:
 

"An affidavit of service reflects service upon the defendant on September 7, 1993, by delivery of a copy of the summons with notice to a person of suitable age and discretion named Evelyn Monterosa at the defendant’s place of business.

A clerk’s judgment was thereafter executed on February 7, 1994, for the requested sum of $66,875.41, plus statutory costs and disbursements in the sum of $370, for a total judgment in the sum of $67,245.41 (hereinafter the 1994 judgment).

The plaintiff commenced a second action against the defendant on March 17, 2009, by the filing of a summons and complaint in the Supreme Court, Nassau County, under Index No. 09-006753 (hereinafter the 2009 complaint). The plaintiff alleged that no portion of the 1994 judgment had been satisfied, that more than 10 years had passed since the judgment was docketed, and that the judgment should be renewed pursuant to CPLR 5014(1). The defendant answered the 2009 complaint, asserted affirmative defenses, and separately moved under the index number of the 1993 action, inter alia, to vacate the 1994 judgment.
 

Contrary to the defendant’s contention, the plaintiff properly obtained jurisdiction over him under CPLR 308(2). The affidavit of the plaintiff’s process server constitutes prima facie evidence of proper service (see Matter of Perskin v Bassaragh, 73 AD3d 1073; Prospect Park Mgt., LLC v Beatty, 73 AD3d 885; Pezolano v Incorporated City of Glen Cove, 71 AD3d 970, 971; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525; Jefferson v Netusil, 44 AD3d 621). The defendant’s failure to recall the person of suitable age and discretion who was served, without specific facts of the identity of his employees, employment records, payroll records, or affidavits from others, fails to rebut the process server’s affidavit (see Interlink Metals & Chems. v Kazdan, 222 AD2d 55, 56; see also Pezolano v Incorporated City of Glen Cove, 71 AD3d at 971; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327; Silverman v Deutsch, 283 AD2d 478, 478-479). Thus, there is an insufficient basis to vacate the 1994 judgment for lack of jurisdiction under CPLR 5015(a)(4).

Clerks’ judgments may nevertheless be vacated pursuant to CPLR 5015(a)(1) where the [*3]defendant demonstrates both a reasonable excuse for the default and a potentially meritorious defense to the action (see Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673; see generally Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Gray v B. R. Trucking Co., 59 NY2d 649, 650; Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822; Zanani v Schvimmer, 75 AD3d 546, 547; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313). The defendant failed to establish a reasonable excuse for his default since the only excuse he proffered was that he was not served with process. Moreover, we agree with the Supreme Court that the defendant also failed to establish a potentially meritorious defense to the action. Contrary to the defendant’s contention that the legal services were rendered solely to his corporation, the documentary evidence, including the invoices for legal fees incurred and the pleadings in the earlier landlord-tenant litigations, establish that the defendant was an individually named party in those actions who received individualized legal services. Other issues that the defendant raises as to the invoices themselves speak to the specific amount of damages, and not to liability or to his default in the 1993 action.

III. The Clerk’s Judgment Under CPLR 3215(a) The defendant’s argument that the clerk of the court lacked authority to enter a judgment is raised for the first time on appeal. However, where, as here, an argument presents an issue of law appearing on the face of the record which could not have been avoided if raised at the proper juncture, it may be considered by an appellate court (see Parry v Murphy, 79 AD3d 713; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d at 673; Chrostowski v Chow, 37 AD3d 638, 639; Beepat v James, 303 AD2d 345, 346; Hanna v Ford Motor Co., 252 AD2d 478). The nature of this appeal warrants the exercise of our discretion in reaching on its merits the issue of the propriety of the clerk’s judgment. "
 

Anecdotally, we believe that Courts have an institutional bias against legal malpractice cases.  That said, we are the first to admit that no catalogue of dismissed cases has been produced.  Still…Macaluso v Del Col ,   2012 NY Slip Op 03605   Decided on May 8, 2012   Appellate Division, Second Department is an example.  Here, defendants were sued for a business litigation settlement gone bad, and the proof was that the case was settled in July 2007, and the defendants moved (as attorney for plaintiff) to vacate the settlement in October, 2007.  When plaintiffs sued defendants in August 2010, the case was dismissed on statute grounds.  Why?
 

"Contrary to the Supreme Court’s determination, the plaintiff raised an issue of fact as to whether the defendant’s representation of the plaintiff until at least October 2007 reflected a course of continuous representation (see Weiss v Manfredi, 83 NY2d 974, 977; DeStaso v Condon Resnick, LLP, 90 AD3d at 812-813; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d at 1017-1018; Gravel v Cicola, 297 AD2d at 621; Pellati v Lite & Lite, 290 AD2d 544, 545-546). Accordingly, the Supreme Court erred in granting the defendant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. "

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). "