Appellate Decisions are always correct, well reasoned, and exquisitely written. Sometimes they are recalled and changed.Landa v Blocker 2011 NY Slip Op 06370 ;  Appellate Division, Second Department is an example of the result of persistence in appellate work.
This case is an attorney fee/legal malpractice matter in which it was alleged that the client "approved" monthly statements. If she approved, then an account was stated and there is little to no defense to the attorney fee issue.

So the Appellate Division found, and so the appeal ended, until appellant’s attorney moved to reargue. Here it was successful,

"ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff the principal sum of $193,525.40; as so modified, the judgment is affirmed, without costs or disbursements, those branches of the plaintiff’s motion which were for summary judgment on the first cause of action of the amended complaint and to strike the eighth affirmative defense are denied, and the order dated April 13, 2009, is modified accordingly; and it is further

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648; Landa v Sullivan, 255 AD2d 295). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154; Rodkinson v Haecker, 248 NY 480, 485). The defendant asserted in her affidavit that she signed the invoices as "approved," not because she actually agreed that the amounts reflected therein were correct, but because she was told that no work would be done on her case unless she signed the invoices. For example, the defendant averred that, during a conference at the plaintiff’s office, the plaintiff produced a number of unsigned billing statements and told the defendant that "the conference was not going to proceed until [she] signed the billing statements." According to the defendant, she signed the billing statements, but "[t]here was no intent on [her] part to accept the billing so that it could never, ever, be challenged in the future."

We note that the plaintiff’s alleged refusal to proceed with his representation of the defendant unless the defendant signed the billing statements "would not constitute duress by reason [*3]of which [the defendant] would be entitled to have the written statement invalidated" (Miller v Storer, 1 AD2d 956, 956, affd 2 NY2d 815). Here, however, the defendant does not seek to invalidate or repudiate either the billing statements or the retainer agreement between the parties. Indeed, unlike the client in Miller, the defendant in this case has not asserted a counterclaim for rescission of any agreement between the parties. Rather, the defendant seeks only to defeat that branch of the plaintiff’s motion which was for summary judgment on his cause of action to recover on an account stated by raising a triable issue of fact as to whether she agreed to or acquiesced in the correctness of the invoices. The facts asserted in the defendant’s affidavit are sufficient to raise a triable issue of fact as to whether her acts of signing the invoices "were, in fact, acquiescence to their correctness" (Ween v Dow, 35 AD3d 58, 62).

The Supreme Court also improperly granted that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive. The plaintiff failed to meet his prima facie burden of establishing his entitlement to judgment as a matter of law in connection with this affirmative defense (see Bomba v Silberfein, 238 AD2d 261). Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive, without regard to the sufficiency of the defendant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "
 

Guardian is appointed for an incapacitated person.  Guardain defalcates with the money.  Court examiner is appointed to look over the guardian’s accounts.  Court examiner fails to pick up the missing money.  Is the Court examiner responsible or liable to anyone at all?  Seems the answer is no.

United States Fire Ins. Co. v Raia    2012 NY Slip Op 02482    Decided on April 3, 2012   Appellate Division, Second Department    "United States Fire Insurance Company (hereinafter U.S. Fire) commenced this action on its own behalf and as subrogee/assignee of Andrea S., an incapacitated person (hereinafter the IP). In its complaint, U.S. Fire alleged that the defendant Camille A. Raia was appointed guardian of the IP’s property and obtained a guardianship bond through U.S. Fire, as surety. The complaint further alleged that Raia was removed as the guardian of the IP’s property as a result of a criminal investigation ultimately resulting, upon stipulation, in a surcharge to the guardianship bond, and an assignment of all rights and causes of action to U.S. Fire in exchange for a payment thereon.

Thereafter, U.S. Fire commenced this action, inter alia, to recover damages for legal malpractice and breach of fiduciary duty from the defendant Jerome M. Karp, who had been appointed as a court examiner pursuant to Mental Hygiene Law article 81. In essence, the complaint alleged that Karp failed to discover Raia’s defalcation in a timely manner. Karp moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against him, and U.S. Fire opposed the motion. The Supreme Court granted that branch of Karp’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him. U.S. Fire appeals. We affirm.

"On a motion to dismiss for failure to state a cause of action pursuant to CPLR [*2]3211(a)(7), the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a motion for dismissal will fail’" (Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 796, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275; see Leon v Martinez, 84 NY2d 83, 87-88).

The Supreme Court properly granted that branch of Karp’s motion which was to dismiss the cause of action to recover damages for legal malpractice insofar as asserted against him. "To establish a cause of action alleging legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship" (Nelson v Roth, 69 AD3d 912, 913; see Terio v Spodek, 63 AD3d 719, 721; Velasquez v Katz, 42 AD3d 566, 567). "[A]bsent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence" (Rovello v Klein, 304 AD2d 638, 638; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1111-1112; Aranki v Goldman & Assoc., LLP, 34 AD3d 510, 511-512). Here, the complaint fails to allege the existence of an attorney-client relationship between Karp, on the one hand, and the IP or U.S. Fire, on the other hand (see Nelson v Roth, 69 AD3d at 913; Rovello v Klein, 304 AD2d at 638-639).

The Supreme Court properly granted that branch of Karp’s motion which was to dismiss the cause of action to recover damages for breach of fiduciary duty insofar as asserted against him. To state a cause of action to recover damages for breach of fiduciary duty, a plaintiff must allege: "(1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct" (Rut v Young Adult Inst., Inc., 74 AD3d 776, 777; see Kurtzman v Bergstol, 40 AD3d 588, 590). A breach of fiduciary duty cause of action must be pleaded with the particularity required by CPLR 3016(b) (see Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 808; Chiu v Man Choi Chiu, 71 AD3d 621, 623). Here, although the complaint alleged that Karp owed statutory and fiduciary duties to the IP and U.S. Fire, "[o]n a motion to dismiss a complaint pursuant [to] CPLR 3211(a)(7), bare legal conclusions are not presumed to be true’" (Kopelowitz & Co., Inc. v Mann, 83 AD3d at 798, quoting Kupersmith v Winged Foot Golf Club, Inc., 38 AD3d 847, 848). The complaint did not allege facts that would give rise to a fiduciary relationship between Karp, on the one hand, and the IP or U.S. Fire, on the other hand (see Refreshment Mgt. Servs., Corp. v Complete Off. Supply Warehouse Corp., 89 AD3d 913; Baer v Complete Off. Supply Warehouse Corp., 89 AD3d 877; Kopelowitz & Co., Inc. v Mann, 83 AD3d at 797-798). "

Ginsberg v Broome ; 2012 NY Slip Op 02585 ; Decided on April 5, 2012 ; Appellate Division, First Department  opens the curtain over how partnerships break up, and the fall out over telling an insurance company that there had been legal malpractice committed by a partner.  This case has been partialy dismissed in Supreme Court, and that decision is now affirmed on appeal.
 

"The second cause of action lacks a theory of recovery. The third cause of action is expressly founded on the parties’ partnership agreement, which negates plaintiff’s factual allegations and establishes a defense to his claims as a matter of law (see e.g. Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999], affd 94 NY2d 659 [2000]; US Express Leasing, Inc. v Elite Technology (NY), Inc., 87 AD3d 494 [2011]). The fourth and fifth causes of action, which sound in defamation, are not pleaded with sufficient particularity (see CPLR 3016[a]; Manas v VMS Assoc., LLC, 53 AD3d 451, 454-455 [2008]). Indeed, conceding the insufficiency, plaintiff seeks, for the first time on appeal, to recast these causes of action as claims for breach of fiduciary duty with malicious intendment. This argument is unavailing as well as unpreserved. The fourth cause of action alleges that defendant falsely reported that plaintiff engaged in malpractice. However, plaintiff acknowledged that the partnership had a duty to report potential malpractice, that the malpractice likely occurred on two of the three reported occasions, and that one instance of malpractice was correctly attributed to him. The fifth cause of action alleges that defendant disseminated false information about plaintiff in the legal community, harming plaintiff’s "new firm." The reference to a "new" firm suggests that defendant was no longer [*2]plaintiff’s partner at the time, which undermines the claim that he breached any fiduciary duty to plaintiff. "

How does one prove that the settlement was not good enough, given the circumstances? How does one prove that had this or that taken place, that Husband would have paid less, and more to the point, how does one prove that Husband was the victim rather than the beneficiary of the settlement? It’s all in the minutia of the divorce dollars.

in Sevey v Friedlander ; 2011 NY Slip Op 02978 ;Decided on April 14, 2011 ;Appellate Division, Third Department we see that even the purchase of a car by husband is factored into the mix. Question: was he misled, was there malpractice, or did he know exactly what he was getting and giving, and now is simply carrying on war under a different caption?
 

"Defendants established that the settlement was, in many regards, financially favorable to plaintiff. For example, his temporary child support for his three children of $2,000 per month was reduced in the stipulation to $650 per month and he agreed to pay that amount for four years at which time his wife was required to pay child support to plaintiff for their son who resided with him. The duration of spousal maintenance for the long-term marriage was also capped at four years and, in fact, he paid for a shorter duration because his spouse remarried. Although he had received a $20,000 bonus on top of his $95,000 salary, his stipulated income included none of the bonus money. His spouse’s stipulated income from her small business was set at $28,000, which was an amount falling between her claimed earnings of $14,596 and the $46,703 contended by plaintiff’s expert. Moreover, at the time the divorce case was pending, plaintiff purchased a luxury car with monthly payments of nearly $800 for five years, an action that did not assist his position in the negotiations. Defendants submitted sufficient proof to shift the burden as to the element of whether plaintiff sustained actual damages.

Plaintiff contends that he would have received a more favorable result if he had gone to trial. On this record, his contention is entirely speculative (see Boone v Bender, 74 AD3d 1111, 1113 [2010]). "

Plaintiff is injured in 1982 and again in 1983.  This month a legal malpractice case arising from the two cases was partially dismissed in Supreme Court, New York County.  In the interim the world has changed.

Deutsch v Ullman  2012 NY Slip Op 30748(U)  March 23, 2012  Sup Ct, New York County  Docket Number: 110595/2010  Judge: Saliann Scarpulla decides two issues.  How long may a dissolved law firm be kept in the case as time goes by, and to what extent must plaintiff prove that she would have succeeded on the underlying case?

"These actions arose from separate incidents that occurred in 1982 and 1983 while Deutsch worked as a public school teacher in Brooklyn, New York. In the first action (the “1982 action”), Deutsch alleged that she sustained personal injuries on or about April 29, 1982 after one of her second-grade students grabbed her left arm. Deutsch alleged in her complaint that the Board was negligent in failing to protect her from the student.

The second action (the “ 1983 action”) arose out of back injuries Deutsch allegedly sustained on October 16, 1983, while she attempting to close a window in her classroom. In her complaint, Deutsch alleged that the Board was liable for “improperly maintaining windows in her classroom,” failing to provide a pole to open and close the windows and failing to provide personnel to close the windows."

"Nine years later, in June 2003, Ullman & Huber P.C. dissolved. After the firm’s dissolution, David Ullman, Esq. and Deutsch continued to maintain an attorney-client I relationship. It is undisputed that Huber no longer represented Deutsch after the firm I dissolved. Deutsch commenced this action in December, 20 10, asserting causes of action for professional negligence, poor due diligence, vicarious liability for the professional negligence, and breach of contract.

Here, defendants have made a prima facie showing that the complaint should be dismissed against Ezra Huber, Esq. and Ezra Huber & Associates, P.C. as time-barred. The statute of limitations on legal malpractice claims accrues on the date of the malpractice, and is tolled until the completion of the attorney’s representation of the client. CPLR 9 214; see Glamm v. Allen, 57 N.Y.2d 87, 93-94 (1982).

Further, Deutsch’s legal malpractice cause of action based on the 1982 action is dismissed as to the remaining defendants. To prevail in an action for legal malpractice, a plaintiff must demonstrate that she would have prevailed on the merits of the underlying action “but for” the attorney’s negligence. Aquino v. Kuczinski, Vila & Assoc., P. C., 39 A.D.3d 216, 218-19 (lst Dept. 2007). A defendant in an attorney malpractice action is entitled to summary judgment where the defendant shows that the plaintiff would not have prevailed in the underlying action notwithstanding the alleged malpractice. See Walker v. Glotzer, 79 A.D.3d 737,738 (2d Dept. 2010).
. .
Deutsch does not dispute that she and Huber did not have an attorney-client relationship after Ullman & Huber’s dissolution in July 2003, more than three years before she commenced this action. Nor does she dispute that the alleged legal malpractice occurred more than three years before this suit "

In Eighth Ave. Garage Corp. v Kaye Scholer LLP   2012 NY Slip Op 02402   Decided on March 29, 2012  Appellate Division, First Department  Kaye Scholer defended itself, and obtained dismissal.  Schwartz & Ponterio were unable to save the case for plaintiff.   
 

The Court held that "Plaintiffs failed to allege facts in support of their claim of legal malpractice that "permit the inference that, but for defendants’ [alleged negligence], [they] would not have sustained actual, ascertainable damages" (Pyne v Block & Assoc., 305 AD2d 213 [2003]). Although they maintain that as a result of defendants’ negligence in failing to obtain an estoppel certificate from the landlord of the premises where the garage is located, they were unable to sell the subject parking garage, they failed to demonstrate that they would have sold the subject garage but for defendants’ alleged malpractice. In any event, plaintiffs are precluded by the doctrine of collateral estoppel from litigating the issue of whether the landlord’s failure to give them the certificate damaged them, as that issue was raised and decided against plaintiff Eighth Avenue Garage Corporation in a prior proceeding (Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404 [2009], lv dismissed 12 NY3d 880 [2009]; see Hirsch v Fink, 89 AD3d 430 [2011]).

Supreme Court properly considered the evidence submitted on the motion, including the e-mails, which conclusively disposed of plaintiffs’ claims (see Pitcock v Kasowitz, Benson, Torres & Friedman LLP, 74 AD3d 613 [2010]). Accordingly, it is of no moment that discovery has not been conducted. In addition, plaintiffs have not asserted that facts essential to justify [*2]opposition to the motion may have existed but could not be stated (see CPLR 3211[d]). "

It’s difficult to say which is the more perplexing problem in this case.  Is it the loose procedure in which a client put down $ 1.1 million on a condo with few safeguards, or the manner in which the legal malpractice case is being handled?  in Cheong v Lau  2012 NY Slip Op 30725(U)  March 1, 2012  Supreme Court, Queens County  Docket Number: 22266/09  Judge: Darrell L. Gavrin we see both.

The legal malpractice case handling first.  Defaults, late cross-motions, what appears to be pro-se defendants, and missed deadlines are how this legal malpractice case begins.

Worse is how this real estate transaction took place.  "On July 13, 2007, plaintiffs met with Tso, a sales agent, and Lee, the principal of Paramount, whereupon plaintiffs agreed to purchase a condo unit and a parking space in a building owned by Paramount for $628,000 with a $100,000 down payment. On that same date, plaintiffs and Lee signed a terms sheet outlining the terms of the purchase. On July 19, 2007, plaintiffs retained the Lau defendants to represent them in the purchase of the condo unit and parking space. On July 25, 2007, plaintiffs and Paramount executed a contract of sale for the condo unit and parking space, and plaintiffs issued to Paramount’s attorney a check for $100,000 as the down payment. The contract did not provide for a condominium offering plan approved by the New York State Attorney General’s Office. On July 27, 2007, the down payment was released to Paramount. On February 5, 2008, plaintiffs and Paramount executed a second purchase contract, which included an approved condominium
offering plan, and plaintiffs issued an additional $5,000 down payment. At that time, Jay Lau
told plaintiffs that the $100,000 down payment would be considered a loan to Paramount and
that Lee would personally guaranty the loan. Plaintiffs received a promissory note stating
that the $100,000 would be applied to the purchase price upon closing. It is undisputed that
Paramount never satisfied the promissory note and title to the condo unit has never been
transferred to plaintiffs. Meanwhile, in January 2008, Tso asked plaintiffs to lend Paramount
$1,000,000 for a period of six months to complete construction on the building. Plaintiffs
agreed to the loan and retained the Lau defendants to represent them in the transaction. Mr.
Lau drafted the loan documents, which he advised plaintiffs would create a mortgage lien on
the property. According to its terms, Lee also personally guaranteed the mortgage. On
February 8, 2008, plaintiffs executed the mortgage documents and wired $1,000,000 to
Golden Eagle Capitol Corporation, as requested by Lee. On February 10, 2009, the mortgage
was recorded. Paramount and Lee never made any payments on the mortgage. Soon
thereafter, plaintiffs received notice that Chinatrust Bank was seeking to foreclose on its
mortgage against the subject property. On August 14, 2009, plaintiffs commenced the within
action alleging causes of action for legal malpractice and fraud against the Lau defendants,
causes of action for fraud against Paramount, Lee, and Tso, and claims to recover on the
$100,000 promissory note and personal guaranty of the note against Paramount and Lee,
respectively. " 

In this case, there has been a break-down of the orderly pleadings stage.

"The court will not entertain Tso’s untimely cross motion to dismiss the complaint and all cross claims asserted against him pursuant to CPLR § 3211 (a) (1) and/or CPLR § 3212. A cross motion for summary judgment pursuant to CPLR § 3212 made after the expiration of the statutory period or court-ordered deadline may be considered by the court, even in the absence of good cause, where a timely motion for summary judgment was made on grounds nearly identical to that of the cross motion (see Grande v Peteroy, 39 AD3d 590 [2d Dept  2007]). Here, Tso’s cross motion for summary judgment was served 20 days after the court-ordered deadline of October 1, 2011. Tso has not offered any excuse for the delay in making the cross motion (see Thompson v Leben Home for Adults, 17 AD3d 347, 348 [2d Dept 2005]). Moreover, the issues presented by Tso’s cross motion and the separate motions for summary judgment by plaintiffs and the Lau defendants are not nearly identical. Tso’s cross motion seeks summary judgment dismissing plaintiffs’ complaint insofar as asserted against him, whereas plaintiffs’ motion only seeks summary judgment on their causes of action against the Lau defendants, Paramount, and Lee. In addition, while Tso’s cross motion seeks summary judgment dismissing the Lau defendants’ cross claim for contribution or common-law and/or contractual indemnification against him, the Lau defendants’ summary judgment motion seeks dismissal of plaintiffs’ complaint insofar as asserted against  them and the cross claim by Paramount, Lee, and Tso for contribution against them. Under these circumstances, the cross motion is time-barred (see Podlaski v Long Is. Paneling Ctr. of Centereach, Inc., 58 AD3d 825, 826-827 [2009]; Bickelman v Herrill Bowling Corp., 49 AD3d 578 [2d Dept 2008]). Likewise, Tso’s cross motion to dismiss plaintiffs’ complaint and all cross claims asserted against him pursuant to CPLR § 3211 (a) (1) is untimely since it was not made within the time period during which defendants were required to serve an answer (CPLR
§ 3211 [e]; see Bennett v Hucke, 64 AD3d 529, 530 [2d Dept 2009]; see also Siegel, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:52)."

Justice Goodman of Supreme Court, New York County hads a caseload full of legal malpractice cases before she retired. Here is an accounting malpractice case coming as a counterclaim for accounting fees, but the idea is just the same. InPerelson Weiner, LLP v Allison NY Slip Op 2010 31679  06/29/2010 Supreme Court, New York County, Goodman, J. Tthe claim was that client did not pay fees, and client counterclaimed that the accountant committed malpractice in handling a foreign investment, to the tune of $ 61,000. Client alleges that accountant overbilled him and advised him that litigation in the Cayman Islands was essential, when in fact it was useless. In this motion on the amended pleadings, Justice Goodman lays out a well enunciated explanation of how such a pleading should look and why it is permissible. Here, it is neither too late, nor too prejudicial to dismiss