In Barocca v Garten, 2012 NY Slip Op 30609(U) March 1, 2012 Supreme Court, Nassau County
Docket Number: 5249/11 Judge: Antonio I. Brandveen faced a situation in which plaintiff had a long series of communications with the defendant’s attorney, and then served a summons with notice on the defendant’s attorney.  Does this constitute good service?  What standard is employed to determine whether the service is good or not?

The court wrote: " The Court of Appeals holds: On a motion to dismiss pursuant to CPLR 3211 , the pleading is to be afforded a liberal construction (see CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit * 8 8 within any cognizable legal theory (Morone v Morone 50 NY2d 481 , 484; Rovello v Orofino Realty Co. 40 NY2d 633 634) Leon v Martinez, 84 N. 2d 83 87- 614 N. S.2d 972 (1994). Here, the parties, owners and an architect, executed an agreement for a residential design at 71 Percheron Lane, Roslyn Heights, New York. There were some issues with the Town of North Hempstead. Attorneys represented the parties in their efforts to resolve the issues regarding certain work performed involving the residence. The parties communicated with the assistance of their legal counsels. On April 7, 2011 the plaintiff commenced the instant action. CPLR 306-b provides:

Service of the summons and complaint, summons with notice, third-party summons and complaint, or petition with a notice of petition or order to show  cause shall be made within one hundred twenty days after the commencement of the action or proceeding, provided that in an action or proceeding, except a proceeding commenced under the election law, where the applicable statute of limitations is four months or less, service shall be made not later than fifteen days after the date on which the applicable statute of limitations expires. If service is not made upon a defendant within the time provided in this section, the court upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause shown or in the interest of justice, extend the time for service.

CPLR 305 (b) provides:
If the complaint is not served with the summons, the summons shall contain or  have attached thereto a notice  stating the nature of the action and the relief sought and, except in an action for medical malpractice, the sum of money for which judgment may be taken in case of default. The Second Department holds:
The 120-day service provision of CPLR 306-b can be extended by a court, upon motion  " upon good cause shown or in the interest of justice (CPLR 306-b). Good cause" and "interest of justice" are two separate and independent statutory . standards (see Leader v. Maroney, Ponzini Spencer 97 N. 2d at 104, 736
S.2d 291 , 761 N.E.2d 1018). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v. Maroney, Ponzini Spencer 97 N. 2d at 105- , 736 N.Y.S.2d 291 , 761 N.
1018).. .If good cause for an extension is not established, courts must consider the interest of justice" standard of CPLR 306-b (see e.g. Busler v. Corbett, 259 AD.2d at 17, 696 N. 2d 615). The interest of justice standard does not require . reasonably diligent efforts at service, but courts, in making their determinations may consider the presence or absence of diligence, along with other factors (see Leader v. Maroney, Ponzini Spencer 97 N.Y.2d at 105; 736 N.Y.S.2d 291 761 N. 2d 1018). The interest of justice standard is broader than the good cause
standard (see Mead v. Singleman 24 A.D.3d 1142, 1144 806 N.Y.S.2d 783), as its factors also include the expiration of the statute of limitations, the meritorious nature of the action, the length of delay in service, the promptness of a request by the plaintiff for an extension, and prejudice to the defendant (see Leader v.
Maroney, Ponzini Spencer 97 N. 2d at 105-106, 736 N.Y.S.2d 291 , 761 E.2d 1018; Matter of Jordan v. City of New York 38 AD.3d 336 339 833 Y.S.2d 8; Estey-Dorsa v. Chavez, 27 A.D.3d 277, 813 N. S.2d 54; Mead v.
Singleman 24 AD.3d at 1144, 806 N. 2d 783; de Vries v. Metropolitan Tr. Auth. 11 AD.3d 312, 313, 783 N. S.2d 540; Bafkin v. North Shore Univ. "

The interplay of bankruptcy and personal injury or legal malpractice cases is complicated.  Basically, once one files a Chapter 7 petition, all assets, including the penny in petitioner’s pocket becomes part of the Bankruptcy estate. That estate includes any personal injury claims, and even any future legal malpractice claims.  If they are listed in the schedules, then the trustee has the right to litigate and collect for the creditors.  If they are not, then, for the most part, they will be lost to the plaintiff.  Here, in Santonocito v Moskowitz, Passman & Edelman; 2012 NY Slip Op 30580(U)
March 7, 2012 ;Supreme Court, New York County ;Docket Number: 114418-2010; Judge: Judith J. Gische we see a plaintiff who has a good legal malpractice case lose it all.

"On June 1,2004, prior to filing the personal injury action, plaintiff  and his wife flied a voluntary petition for bankruptcy under Chapter 7 of the bankruptcy ("bankruptcy petition"). The Santonocitos brought the petition pro-se, but a legal services company (We the People) prepared and filed the petition on their behalf, charging them a $229 fee.

Schedule B of the bankruptcy petition requires that the debtor "list all personal property of the debtor of whatever kind." Item 20 requires that the debtor lid "Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims. Give estimated values." Item 17 of Schedule B requires the debtor to also list "Other liquidated debts owing to debtor, including tax refunds." The Santoncitos response was that they had "Proceeds from Auto Accident"

"When a debtor files for bankruptcy protection, this creates an "estate’ comprised of ‘ail legal and equitable interests of the debtor as of the commencement of the case (1 1 USC  541 [a][1]. A pre-petition injury qualifies as a legal interest, within the meaning of the statute (In re Corbi, 149 B.R. 325,329 [Bankr.E.D.N.Y.l993]) and a debtor is required to disclose in its bankruptcy petition any causes of action that would be brought by the debtor (Kunica v. St. Jean Financial Inc., 233 8.R. 46 [SDNY l999Q]). This is for the benefit of the creditors (Kunica v. St. Jean, supra). If the debtor fails to list a claim, "an unscheduled claim remains the property of the bankruptcy estate… Crawford v. Franklin Credit Management Corp., ., -B .R.–, 201 1 WL 1118584 [S.D.N.Y. 2011; also Bromley v. Fleet, 240 AD2d 611 (2d Dept 1997),   Consequently, the debtor lacks standing to bring a lawsuit in connection with such claims after emerging from bankruptcy, and if  s/he does, the lawsuit must be dismissed."

Kenneth M. Block, Esq. and John-Patrick Curran Esq. write that the line between tort and contract claims in architectural negligence cases has become blurred over the years.  Both legal and architectural negligence claims were at one time strictly divided into tort and contract sides of the equation.  Each had its own statute of limitations, and each was doctrinally different.  In their outside counsel column in the New York Law Journal they describe how the lines have blurred.

"In 1996, the state Legislature, through an amendment to CPLR Section 214(6), overruled Sears, Roebuck’s holding that differing statutes of limitations governed the damages available in architectural malpractice suits grounded in tort instead of contract.7

This legislative action swept away the notion that tort damages were available only during a three-year limitations period but that contractual damages were available for six years. However, the amendment left open the question of whether, once that distinguishing feature (for statute of limitations purposes) between malpractice claims sounding in tort and those sounding in contract was removed, plaintiffs needed to continue to separate contract and tort theories in their malpractice claim or risk losing the ability to recover under both theories."
 

"One way to understand Brushton-Moira is as an evolution in architectural malpractice theory: In 1993, the Third Department sharply delineated between contract and malpractice claims, but by 1998, the Court of Appeals treated the action as a hybrid and merged contract and tort theories.

This view of malpractice claims was embraced by the First Department in a 1999 case, 17 Vista Fee Associates v. Teachers Insurance & Annuity Association of America.17 In 17 Vista, the trial court found that the plaintiff had no malpractice claim because it only alleged economic loss and no legal duty outside the contract was alleged to have been breached. The First Department rejected that finding, noting that "in claims against professionals, a legal duty independent of contractual obligations may be imposed by law as incident to the parties’ relationship…for failure to exercise reasonable care[.]"18 It was irrelevant that the plaintiff may not have suffered tort damages because the fact that it "suffered pecuniary losses only is of no significance in this malpractice claim against a professional" because "[m]any types of malpractice actions…will frequently result in economic loss only."19 Thus, regardless of the underlying theory, both contract and tort damages were recoverable.

Conclusion

In the past, plaintiffs asserting architectural malpractice claims had to exercise care in pleading their claims, making sure to assert both contract and tort theories to ensure that both contract and tort damages would be available to them. Cases such as Brushton-Moira and17 Vista indicate that plaintiffs no longer need to expressly define the theory under which their malpractice claims are brought, and if the claim is properly pled and proven, they will be able to recover both contract and tort damages for architectural malpractice."

We are often struck by the human element and how it interacts with the institutional element of litigation. Schedules are packed, attorneys have many cases, court dates go unrecorded, attorneys just don’t show up for conferences, and yet the cases go on. We believe that even in a successful case for one side or the other, a detailed inspection of the file or the record will demonstrate multiple mistakes by the winner. In other words, there are often departures without proximity.

Even in legal malpractice litigation, where the stakes are at least conceptually raised, mistakes happen. Here, in Hudson v Gouldbourne ; 2011 NY Slip Op 03548 ; Decided on April 26, 2011
Appellate Division, Second Department we see a default, a motion for a default judgment, a judgment and now, a sanction.

"An order relieving a party from a default may be conditioned on payment of a monetary sanction pursuant to CPLR 5015(a) (see Gissaro v Lessne, 300 AD2d 281, 282; Du Jour v DeJean, 247 AD2d 370, 371; Workman v Amato, 231 AD2d 627, 628; Coven v Trust Co. of N.J., 225 AD2d 576; Sasson v Sasson, 134 AD2d 491). Under the circumstances of this case, the Supreme Court providently exercised its discretion in imposing a monetary sanction in the sum of $3,000 as a condition to granting the defendant’s motion to vacate the default judgment against her on the issue of liability. "
 

Irony has little place in litigation, yet it abounds. In Perez-Faringer v Heilman ; 2010 NY Slip Op 09238 ; Decided on December 14, 2010 ; Appellate Division, Second Department plaintiff, pro-se in the action below, and in the appeal, has had the action dismissed, for the mere and easily avoidable failure to serve a complaint after demand.
 

The unfortunate juxtaposition of a case within a case within a case is unique to legal malpractice litigation. In a meta- sort of way it is symmetric. "The plaintiffs purchased a parcel of real property located in Scarsdale (hereinafter the subject property), from the defendant Lila Lambert Carloni. In this real estate transaction, the plaintiffs were represented by the defendant Julia Heilman and Carloni was represented by the defendant Sue Freedman. Subsequent to the closing of title, the plaintiffs discovered that the property upon which an easement which they needed to park their cars would not be maintained or repaired by the Village of Scarsdale, as represented by Carloni in the contract. In addition, they found out that the third floor of the home on the property, which had been converted into living space, and the front deck, did not have certificates of occupancy.

On September 29, 2008, the plaintiffs pro se filed a summons with notice at the Westchester County Clerk commencing an action against, among others, Heilman, Carloni, and Freedman, inter alia, to recover damages for legal malpractice, fraud, and breach of fiduciary duty. "

"On February 9, 2009, Freedman served a demand for a complaint on the plaintiffs. Since Freedman mailed this demand to the plaintiffs, the plaintiffs had until March 6, 2009, to serve their complaint. The plaintiffs failed to serve a complaint upon Freedman by that date. [*2]

In an order entered July 14, 2009, the Supreme Court granted Freedman’s motion to dismiss the action pursuant to CPLR 3012(b) insofar as asserted against her. In a second order also issued the same day, the Supreme Court denied the plaintiffs’ motion, inter alia, to extend their time to serve their complaint. We affirm. "
 

In what may be her last published decision before retirement Justice Emily Jane Goodman enters a field that has not been touched for years, and for which there seemed to be certainty on what damages were permitted.  In legal malpractice, a claim by a criminal defendant for legal malpractice  is almost never successful, and when it is, damages are generally (as in all legal malpractice) limited to pecuniary loss.  In D’Alessandro v Carro ;2012 NY Slip Op 30529(U); February 29, 2012; Supreme Court, New York County ;Docket Number: 100135/2011 ; Judge: Emily Jane Goodman finds to the contrary.

Plaintiff was tried in New York County for kidnapping, and when convicted, sentenced to the max.  He had a good CPL 30.30 claim for speedy trial violations.  The 30.30 claim was not raised prior to trial, and when plaintiff hired an attorney to appeal, the 30.30 claim was once more not raised.  It should have been, as eventually, the 1st Department granted a writ of Corum Nobis.

From the Decision:  "Plaintiff served 14 and a half years of his term and was released on parole. He then moved for a writ of error coram nobis’ on the ground that the trial court improperly determined that the speedy trial provision was not violated, and noted his
attorney’s failure to appeal the issue in the direct appeal. The appellate court granted the writ (People v. D‘Alessandro, 2010 WL 2652447 [Ist Dept 20101). It found that ’ The statute creates a time frame wherein the People must be ready for trial, and if the People are not “effectively” ready
for trial, the defendant can be released from custody or the case can be dismissed. Generally, a writ of error coram nobis is the remedy for setting aside an erroneous judgment ‘that resulted from an error of fact in the proceeding. 

"the speedy trial argument was "clearly meritorious" and determined that, notwithstanding Defendants’ otherwise effective assistance, its failure to raise that "clear cut and dispositive"
argument warranted the grant of the writ. The court held: Because it is "clear-cut" that defendant would have prevailed on the speedy trial issue had his appellate counsel raised it, he is entitled to a writ of error coram nobis.

Next, Defendants argue that plaintiff does not, and cannot, make a colorable claim of innocence.
[TI0 state a cause of action for legal malpractice arising from negligent representation in a criminal
proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense . . . for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie . . . This requirement is central to the determination of causation in a cause of action for legal malpractice arising from a criminal proceeding . . .
***
We require that the criminal client bear the unique burden to plead and prove that the client’s conviction was due to the attorney’s actions alone and not due to some consequence of his guilt
(Britt v Legal Aid SOC., Inc., 95 NY2d 443, 446 [200O][citations omitted]). Where an individual cannot assert his innocence, public policy ”prevent maintenance of a malpractice action
against his attorney” (Carmel v Lunney, 70 NY2d 169, 173 (1987)

In other words, an otherwise guilty individual should not be able to profit from his criminal acts due to the procedural mistakes of his attorney. Defendants argue that plaintiff cannot prove that the
conviction was due to his attorney’s actions alone because “the plaintiff is factually guilty.” In support, Defendants cite to several items of documentary evidence to prove guilt, including
the 1993 judgment of conviction, which was reversed, and the 1996 appeal decision, which was recalled and vacated. Defendants also cite to the 1993 jury verdict, which was not explicitly vacated;
however, the indictment from which that verdict followed was dismissed (People v D‘Alessandro, 2010 WL 2652447 [lst Dept 2010). plaintiff, dated September of 1996, wherein he stated ‘ [ i l f I was told or knew that kidnapping in the first degree carried a mandatory fifteen year sentence . . . I would have sought a plea disposition in this case, regardless of my guilt or innocence” (Hyland Aff., Ex. E). Defendants claim this unsigned, unsworn affidavit is an acknowledgment of guilt.
Finally, Defendants provide an unsigned affidavit of It is not.
 

While to a casual reader, rather than a legal scholar, it may be sufficient to rely -on the conviction as proof of guilt, but for the denial of the 30.30 motion, it would not have gone to a jury. And if not for the failure to raise the 30.30 decision on appeal, the duration of plaintiff’s incarceration would have been dramatically reduced.

.The ten year old Wilson theory of damages was not adopted by the Fourth Department in the recent case of Dombrowski, supra. In that matter, plaintiff was convicted of two felonies.
assistance of counsel. The motion was denied. Plaintiff then commenced a habeas corpus proceeding contending ineffective assistance of counsel. The petition was granted and the
indictment dismissed; however, plaintiff had served five years in He moved to vacate the conviction for ineffective assistance of counsel.  The petition was granted and the indictment dismissed; however, plaintiff had served five years in jail. Plaintiff then sued his defense attorney for legal
malpractice for, inter alia, loss of liberty. The Supreme Court granted summary judgment dismissing the complaint on the ground that he had no right to recover non-pecuniary damages.
Fourth Department reversed the decision. The It noted that the trend amongst many other states is to allow recovery for loss of liberty in criminal legal malpractice cases, and held that [A] plaintiff who establishes that he or she was wrongfully convicted due to the malpractice of his or her
attorney in a criminal case may recover compensatory damages for the actual injury sustained, i . e . , loss of liberty (Dombrowski, 79 AD3d, at 1590). Placed in the current context, if the Appellate
Division, First Department had the occasion to revisit the instant case, or a similar one where malpractice has been established and the issue of damages is central, perhaps it would be viewed differently."

After a trial, All Town Real Estate Associates has won a two part legal malpractice judgment, now affirmed by the Appellate Division.  In Island Props. & Equities, LLC v Cox ;2012 NY Slip Op 01656 ; Decided on March 6, 2012; Appellate Division, Second Department  we see that the attorney failed to handle two different aspects of real estate practice.  In the first, he failed to correct a motion seeking distribution of funds and in the second failed timely to file a mortgage. 
 

"In connection with the third cause of action, the plaintiff All Town Real Estate Associates, Inc. (hereinafter All Town), established that, but for the defendant’s negligence in failing to correct a motion in a foreclosure action to confirm a referee’s report and for distribution of surplus [*2]funds, where the motion had been rejected by the Supreme Court after the defendant filed it, All Town would have received the surplus funds deposited with a county treasurer after the real property in question had been foreclosed upon. However, since the evidence established that the amount of the surplus funds was $12,334.76, as opposed to $14,000, we modify the judgment accordingly.

With respect to the fifth cause of action, the evidence established that the defendant negligently delayed recording a mortgage on certain real property which secured a $50,000 loan from the plaintiff Island Properties & Equities, LLC (hereinafter Island). This delay allowed the borrower to refinance a first mortgage on the property without satisfying Island’s mortgage, and ultimately rendered Island’s mortgage worthless. We reject the defendant’s contention that the damages sustained by Island were speculative.

The defendant’s remaining contention is without merit. "

Spanish company is in the business of exporting and selling olive oil.  While in bankruptcy it arranges for ongoing sales to the US.  US Company hires CPAs to do routine monthly billing and reconciliations which go wrong.  How long does the representation go on, and does it comprise "continuous representation"?  Is the commencement date for purposes of the statute of limitations the date of the first mistake or of its discovery?

Since at this juncture the intended scope of defendants’ services cannot be determined, it also cannot be determined whether plaintiffs instituted this action within the requisite statute of limitations. Pursuant to CPLR 214(6), an action for professional malpractice must be commenced within three years of the date of accrual. A claim for professional malpractice accrues when the malpractice is committed, not when it is discovered  (see Williamson v Pricewaterhousecoopers LLP, 9 NY3d 1, 7-8 [2007]), Under the continuous representation doctrine, if the accountant whose professional work is being questioned engages in continuous work for the client with respect to the particular transaction that is the subject of the action, the statutory period is tolled (see Mitschele v Schulfz, 36 AD3d 249, 253 [Ist Dept 20061). “The mere recurrence of professional services does not constitute continuous representation where the later services performed were not related to the original services” ( id ) . In the case at bar, the evidence presented indicates that monthly reports were sent to Spain until March of 2004 and that between March and June of 2004, defendants assisted in  the preparation of a revised reconciliation statement to be sent to Fedeoliva. The scope of defendants’ services is undetermined at this time, thus it cannot be stated with certainty when the statute of limitations began to run. Specifically, it is unclear whether the reports and revised reconciliation were part of continuous work for which defendants were engaged, which would make the continuous representation doctrine applicable and toll the statute of limitations. similarly, in order to establish privity between plaintiffs and defendants, it must be shown that: (1) defendants were aware that their reports were to be used for a particular purpose; (2) in the furtherance of which a known party was intended to rely; and (3) some conduct on the part of defendants evincing their understanding that plaintiffs were going to rely on their accounting work (see Security Pac. Bus, Credit v Peat Marnick Main & Co., 79 NY2d 695, 702 [I 9921; Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536 [ISSS]). Since issues of material fact remain as to what service5 defendants agreed to provide and defendants’ knowledge of the relationship between plaintiffs and Fedeoliva USA, defendants’ privity argument cannot be resolved at the present time.

Moreover, the Court is not persuaded by defendants’ in pari delicto argument because, at this time, there is no e-evidence of Fedeoliva USA’s wrongdoing and, even if that doctrine were to apply, it does not exclude a cause of action for contribution among joint tortfeasors (Rpsenbach v The Diversified Group, Inc., 85 AD3d 569 [Ist Dept 201 11).