Big law firms take on big cases, and even bigger transactions.  One might read about a $ 50 Million dollar loan concerning a hospital.  One might have seen "Margin Call" and thought about how the sale of those securitized mortgages really takes place, and who checks the paperwork.  In Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft, LLP.  we see what happens when things go wrong.

Nomura sued Cadwalader for its failure "to properly advise and represent " NACC and ASC in connection with the securitization of a pool of commercial mortgages and the issuance of a legal opinion stating that the resulting trust would qualify for federal income tax purposes as a real estate mortgage investment conduit (REMIC)"  Now, summary judgment has been denied to Cadwalader.

At issue was a $ 50 million loan made to Doctor’s Hospital of Hyde Park, Chicago.  "When the hospital subsequently went into bankruptcy and Nomura was sued by the trustee to force a repurchase of the loan, Nomura claims it was forced to settle the trustee’s lawsuit for millions of dollars and alleges that it would not have suffered these damages but for Cadwalader’s legal malpractice."

An appraisal of the hospital was performed, but the Cadwalader tax partner did not review the appraisal before signing the opinion letter.  Bankruptcy Court later determined that the hospital was insolvent on the date of the appraisal which valued it at $ 68 million.

Nomura settled cases against itself for $ 68 million and went on to sue Cadwalader.  After this latest round of motion practice, the remaining claims alleged that Cadwalader committed legal malpractice by failing to advise plaintiffs that appraisals of the collateral securing the mortgage loans had to separately value real property, and that there was a failure of due diligence.

Plaintiff’s mother  brought a personal injury case against the City of New York for plaintiff from an injury of December 20, 2002.  She retained defendant attorneys to represent her.  She discharged the attorneys via a "Consent to Change Attorneys" in August , 2006.  She brought the legal malpractice case Fleyshman v Suckle & Schlesinger, PLLC ; 2012 NY Slip Op 00176 ; Decided on January 10, 2012 ; Appellate Division, Second Department.  This case was dismissed on the statute of limitations.

"The Supreme Court erred in denying that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss the first cause of action, alleging legal malpractice, as time-barred. The defendants sustained their initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in May 2010 (see CPLR 214[6]; Rupolo v Fish, 87 AD3d 684, 685; Krichmar v Scher, 82 AD3d 1164, 1165). In response, the plaintiff failed to raise a question of fact as to whether the statute of limitations was [*2]tolled by the doctrine of continuous representation. All of the documentary evidence demonstrated that the relationship necessary to invoke the continuous representation doctrine terminated in August 2006, and the plaintiff’s submissions did not indicate that her trust and confidence in the defendants continued, or was restored, after that date (see Rupolo v Fish, 87 AD3d 684; Krichmar v Scher, 82 AD3d at 1165; Marro v Handwerker, Marchelos & Gayner, 1 AD3d 488; Piliero v Adler & Stavros, 282 AD2d 511, 512; Aaron v Roemer, Wallens & Mineaux, 272 AD2d 752, 754-755).

Moreover, the Supreme Court should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action, which alleged a violation of Judiciary Law § 487. Even as amplified by the plaintiff’s affidavit, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted "with intent to deceive the court or any party" (Judiciary Law § 487[1]; see Jaroslawicz v Cohen, 12 AD3d 160, 160-161). Further, the plaintiff’s allegation that the defendants "willfully delayed [her] recovery with a view to their own ends and benefit" is a bare legal conclusion, "which is not entitled to the presumption of truth normally afforded to the allegations of a complaint" (Rozen v Russ & Russ, P.C., 76 AD3d 965, 969; see Judiciary Law § 487[2]). "

Last August we reported on the legal malpractice case which arose in California and made its way here.  "In this recurring situation, plaintiff has both a California and a NY connection, and hired an attorney to do some work, which eventually goes sour. Frequently a case like this comes up in the entertainment field, with its CA and NY roots. As an example, Basilotta v Warshavsky ; 2011 NY Slip Op 32185(U); August 2, 2011; Sup Ct, NY County; Docket Number: 115525/09; Judge: Paul Wooten shows how the short CA statute of limitations (1 year) undermines the longer NY statute (3 years).

"During the 1980’s plaintiff was a singer known for her popular 1982 song Hey Micky. At all relevant times she has been a California resident. In or about 2003, non party Fallon Inc produced a television commercial for the non-party Subway restaurant franchise that featured Micky without Plaintiff’s knowledge or consent. Subsequent to becoming aware of this commercial, plaintiff retained defendant Oren J. Warshavsky, who at the time worked at defendant law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione (“Gibbons”).’ Plaintiff alleges that she retained Warshavsky and Gibbons I) to seek compensation for the unauthorized use of Mickey in the commercial, and 2) to clarify her ownership rights to the Mickey master recordings. The retainer agreement between the parties was strictly contingency-fee based, and defines the scope of the retainer as “regarding all causes of action."

The gist of the legal malpractice case is that the attorneys got a settlement offer of $ 35,000 and when plaintiff did not accept, sent a letter to a successor attorney advising him of their position that, among other things, plaintiff had terminated her relationship with Gibbons in December, 2006.

The later legal malpractice case revolved around the ownership and exploitation of the master recordings and whether Gibbons was to blame for legal malpractice. Under CPLR 202, a cause of action accruing in a jurisdiction outside NY must be timely both in NY and in that other jurisdiction
 

Now, the Appellate Division has reversed and dismissed.  "Accepting the allegations in plaintiff’s complaint as true and resolving all inferences in her favor, as we must in considering a motion to dismiss (see Leon v Martinez, 84 NY2d 83, 87 [1994]; Benn v Benn, 82 AD3d 548, 548 [2011]), this legal malpractice action accrued in California at the latest in November 2007, when plaintiff received defendants’ letter unequivocally informing her that they were no longer representing her or prosecuting her underlying actions. Accordingly, under California’s applicable one-year statute of limitations (Cal Code Civ Proc § 340.6[a]), this action, commenced in February 2010, is time-barred.

Contrary to the motion court’s finding, plaintiff’s assertion that it was not until October 2009 that she discovered that Radialchoice, the record company with whom she had held a recording contract, was involuntarily liquidated, did not raise an issue of fact as to whether this action is time-barred. Indeed, plaintiff’s allegation was asserted only in her memorandum of law in opposition to the motion, not in her pleadings or any accompanying affidavit (see Coppola v Applied Elec. Corp., 288 AD2d 41, 42 [2001]). Moreover, plaintiff’s alleged discovery is simply an additional facet of the same nonfeasance of which, according to her complaint, she had been aware since November 2007; thus, it does not constitute a separate wrongful act or omission for statute of limitations purposes (see Peregrine Funding, Inc. v Sheppard Mullin Richter & Hampton LLP, 133 Cal App 4th 658, 685, 35 Cal Rptr 3d 31, 51 [2005]).

Lastly, plaintiff’s allegations support the conclusion that she had inquiry notice of defendants’ alleged nonfeasance more than one year before commencing this action. Indeed, since January 2007, when plaintiff obtained her case files and observed that defendants had performed very little work on her underlying cases, she should have discovered, through the use [*2]of reasonable diligence, the facts supporting liability, including the fact that Radialchoice had been involuntary liquidated (see McGee v Weinberg, 97 Cal App 3d 798, 803, 159 Cal Rptr 86, 89-90 [1979]). "
 

Well, the case is not strictly about Dog, it does derive from litigation surrounding him.  Question:  you have a dispute over a sum of money with "X" and "Y".  You also have a legal malpractice case against your attorney, who worked on the "x" and "Y" case.  If you collect from your attorney in legal malpractice, does that affect your right to the money in dispute with "X" and "Y" ?

In A&E TELEVISION NETWORKS, LLC, , -v.- PIVOT POINT ENTERTAINMENT, LLC,; 10 Civ. 9422 (PGG) (JLC);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 149740;December 20, 2011 we see:

"Before the Court in this interpleader action are letters from both parties and non-parties in connection with the request of Defendants Duane "Dog" Chapman and Beth Alice Barmore-Smith Chapman (the "Chapmans") seeking to compel Defendant Pivot Point Entertainment, LLC ("Pivot Point") to produce a confidential settlement agreement (the "Agreement"), and all drafts thereof, entered into by the parties in the action Krutonog v. Akin, Gump, Strauss, Hauer & Feld, et al. (the "Krutonog Action") filed in the Superior Court of California for the County of Los Angeles. "

"Here, the Chapmans, who were neither parties to the Krutonog Action nor the Agreement, assert that the unpaid compensation at issue in the Krutonog Action is "in substantial part the same monies that A&E has deposited with the Court in this Interpleader Action" because both actions involve the Co-Executive Producer Agreement. (Joint Letter at 3). As such, the Chapmans argue, any money paid to Krutonog in settlement of his claims mitigates [*5] his and, by extension, Pivot Point’s alleged losses under the Co-Executive Producer Agreement and should offset Pivot Point’s recovery of damages here. (Id.). In addition, the Chapmans contend that the Agreement is relevant because it supports their theory that Krutonog was a de facto talent agent for the Chapmans, which entitles the Chapmans to recover the interpleaded assets deposited by A&E with the Court. (Id.).

While the Chapmans cite to several cases for the proposition that settlement agreements can be discoverable and do not require a heightened showing of relevance in light of Rule 408 of the Federal Rules of Evidence, see, e.g., Small v. Nobel Biocare USA, LLC, No. 06 Civ. 0683 (RJH) (JLC), 2011 U.S. Dist. LEXIS 77838, 2011 WL 3055357, at *1-2 (S.D.N.Y. July 19, 2011); ABF Capital Management v. Askin Capital, Nos. 96 Civ. 2978 (RWS), 95 Civ. 8905 (RWS), 97 Civ. 1856 (RWS), 97 Civ. 4335 (RWS), 98 Civ. 6178 (RWS), 98 Civ. 7494 (TSZ), 2000 U.S. Dist. LEXIS 3633, 2000 WL 191698, at *1 (S.D.N.Y. Feb. 8, 2000), and it is true that Rule 408 applies to admissibility not discoverability of settlement agreements, see, e.g., Conopco, Inc. v. Wein, No. 05 Civ. 9899 (RCC) (THK), 2007 U.S. Dist. LEXIS 27339, 2007 WL 1040676, at *5 (S.D.N.Y. Apr. 4, 2007), they do not cite [*6] to any authority to support the notion that Krutonog’s monetary settlement in a legal malpractice lawsuit should offset his potential recovery in an interpleader action. The Chapmans do not explain why or how money paid to settle the Krutonog Action should serve to offset Pivot Point’s, or enhance the Chapmans’, entitlement to the interpleaded "stake." The mere fact that both lawsuits involve the same agreement—the Co-Executive Producer Agreement, to which the Chapmans are not parties (Joint Letter at 4)—does not, by itself, mean that recovery in one lawsuit should mitigate recovery in another. Recovery in either lawsuit by Krutonog, who is not a party in this action, or Pivot Point, who was not a party in the Krutonog Action, would not violate the rule against "double recovery for the same injury," Shepherd v. Law Offices of Cohen & Slamowitz, LLP, 668 F. Supp. 2d 579, 582 (S.D.N.Y. 2009), as the injuries alleged in both lawsuits—legal malpractice and breach of fiduciary duty on the one hand, and conflicting claims to the interpleaded assets on the other—are entirely different."
 

"As for the Agreement itself, California law permits disclosure only if certain conditions are satisfied, including, for example, if the "agreement provides that it is admissible or subject to disclosure, or words to that effect." See Cal. Evid. Code § 1123(a). Here, however, the Agreement contains a strict confidentiality provision. (Akin Gump Letter at 2). And while an in camera review of the Agreement might determine whether other conditions for disclosure have been met, see, e.g., Cassel v. Superior Court, 51 Cal. 4th 113, 119 Cal. Rptr. 3d 437, 244 P.3d 1080, 1089 (Cal. 2011) (quoting Cal. Evid. Code § 1123(b) (disclosure of written settlement agreement permitted if "’agreement provides that it is enforceable or binding or words to that effect’"), such a review is unnecessary at this time. The California Superior Court in the Krutonog Action entered a sealing order to protect the confidentiality of the Agreement. (Joint Letter at 6; Akin Gump Letter at 2). Pursuant to Rule 2.551(h)(1) of the California Rules of Court, "[a] sealed record must not be unsealed except on order of [*10] the court." The record before the Court does not indicate that the Chapmans have obtained any such order. Accordingly, the Chapmans have not established that the Agreement is discoverable."

"In sum, the Chapmans’ request is denied. Any application to unseal the Agreement, and subsequently to compel its disclosure upon a showing of relevance under the applicable law, is appropriately made by the Chapmans in Superior Court in California."

Sometimes the attorney representing a client is actually retained by the client, and sometimes the attorney is provided to the client.  In one recurring situation, union members are provided with legal representation.  The member (plaintiff) does not have an attorney-client relationship with the attorney.  That relationship and the privity that is created is between the union and the attorney, and the member may not sue the attorney for legal malpractice.

in Cruz v United Fedn. of Teachers  ;2011 NY Slip Op 33499(U); December 23, 2011
Supreme Court, New York County; Docket Number: 103386/11; Judge: Eileen A. Rakower the client-member was a teacher who was charged with "unsatisfactory performance, misconduct or other disciplinary charges"  From there it was on to a "rubber room."  From the decision:

"Based upon the charges against her, Plaintiff was placed on an Ineligible Inquiry List, was removed from her teaching responsibilities, and was placed in a Temporary Reassignment Center – otherwise known as a “rubber room.” Plaintiff states that she provided UFT with timely notice
of the charges and her reassignment. UFT then called upon defendant New York State Unified Teachers (“NYSUT”) to represent Plaintiff in her Education Law $3020-a hearing. Defendants Sandner and Rubinstein were assigned to be Plaintiffs attorneys concerning her disciplinary charges.

Plaintiff claims that Sandner and Rubinstein failed to adequately represent Plaintiff during the course of her disciplinary proceeding. Specifically she states that during the two year pendency of her disciplinary charges, they never moved to have the charges dismissed or dropped; and that during the proceedings, they failed to “raise jurisdictional or other objections to the disciplinary hearing process.”

In 2008, during her- disciplinary proceeding, Plaintiff, along with other teachers, filed a lawsuit against UFT alleging, inter alia, that UFT (1) failed to honor its obligations to Plaintiff and to other teachers who were reassigned to the “rubber room” and facing disciplinary charges; (2) was discriminating against Plaintiff and (3) that UFT was failing to fairly represent her. Plaintiff alleges that, in response to, and in retaliation for commencing the lawsuit against UFT, defendant Moerdler, a UFT attorney, advised NYSUT, Sandner and Rubinstein that they should end their representation of Plaintiff. Sandner and Rubinstein complied and moved to withdraw as Plaintiffs attorneys, citing a conflict of interest. After the arbitrator granted Sandner and Rubinstein’s motion to withdraw, Plaintiff proceeded pro se. After the hearing, the Arbitrator issued a decision dated
December 1,2008 finding Plaintiff guilty of ten out of the 14 specifications brought against her (see Cruz v. New York City Dept. of Educ., 20 10 NY Slip Op 5001 6U [Sup. Ct., N.Y. Co. 20101) (denying Plaintiffs Article 75 petition challenging the termination). Plaintiff claims that her termination was the result of her pro se status and her inability to adequately defend herself.

Here, the court finds that Plaintiffs complaint must be dismissed. Petitioner’s DFR claim is clearly barred by the four-month statute of limitations set forth in CPLR 52 17(2)(a), which provides:
Any action or proceeding against an employee organization subject to article fourteen of the civil service law or article twenty of the labor law which complains that such employee organization has breached its duty of fair representation regarding someone to whom such employee organization has a duty shall be commenced within four months of the  date the employee or former employee knew or should have known that the breach has occurred, or within four months of the date the employee or former employee suffers actual harm, whichever is later. Further, the court notes that, even if timely, Plaintiff fails to state a DFR cause of action.

Plaintiff‘s additional claims are preempted by her DFR claim, and may not be asserted in order to circumvent the applicable four-month statute of limitations (see Roman v. Ciq Emples. Union Local 237, 300 A.D.2d 142 [lst Dept. 20021 (“The expedient of characterizing a claim for breach of the duty of fair representation as one  for breach of contract is unavailing to avoid the four-month limitations period prescribed in CPLR 2 17(2)(a)”); Mamorella v. Derkasch, 276 A.D.2d 152, 155 [4th Dept. 20003 (“attorneys who perform services for and on behalf of a union may not
be held liable in malpractice to individual grievants where the services performed constitute part of the collective bargaining process.. .. Plaintiff is limited to bringing an action against the union for breach of the duty of fair representation.”).

Legal Malpractice insurance companies have two big exclusions.  One is late notice of a claim and the other is acts outside the policy coverage.  Late notice is a constant danger to the insured.  Carriers take the position that as soon as the attorney knows there has been a mistake he is obligated to tell the carrier.  Insureds take the position that if they tell the carrier as soon as they are served with a complaint, it is early enough.  The cases run between the two extremes.

Here, however, in K2 Inv. Group, LLC v American Guar. & Liab. Ins. Co. ; 2012 NY Slip Op 00001
Decided on January 3, 2012 ; Appellate Division, First Department  we see both bad faith and exclusions.  They do not work out to the carrier’s benefit.
 

"Plaintiffs are limited liability companies that made multiple loans totaling approximately $3 million to nonparty Goldan, LLC of which defendant’s insured, Jeffrey Daniels, an attorney, was a member. In the legal malpractice action underlying this action, it was alleged that as attorney for plaintiffs, Daniels undertook to record mortgages in plaintiffs’ favor to secure those loans, and to obtain title insurance, and that he failed to do so, rendering plaintiffs’ investments unsecured. Goldan became insolvent and never made any payments on the loans. The legal malpractice action alleged that as a consequence of Daniels’s negligent failure to record the mortgages or obtain title insurance, plaintiffs did not have security in the mortgaged properties, and the promissory notes evidencing the loans became uncollectible.

Plaintiffs demanded $450,000 from Daniels in full settlement of their claims. This amount was well within the $2 million aggregate and $2 million per-claim limits of the lawyers professional liability insurance policy issued to Daniels by defendant. However, defendant disclaimed its duty to defend or indemnify based upon two exclusions in the policy. One exclusion was for claims based upon or arising out of the insured’s capacity or status as an officer, director, etc., of a business enterprise. The other exclusion was for any claim arising out of the alleged acts or omissions of the insured for any business enterprise in which he had a controlling interest.

After Daniels failed to appear in the malpractice action, a default judgment was entered against him in the amounts of $2,404,378.36 in favor of plaintiff K2 and $688,716.00 in favor of plaintiff ATAS. Daniels then assigned to plaintiffs all his claims against defendant, including bad faith claims. [*2]

Having disclaimed its duty to defend its insured in an action that culminated in a default judgment, defendant "cannot challenge the liability or damages determination underlying the judgment" (Lang v Hanover Ins. Co., 3 NY3d 350, 356 [2004]). Nor can it raise defenses to plaintiffs’ claim against Daniels including the applicability of any asserted policy exclusions (Lang at 356).

"To be relieved of its duty to defend on the basis of a policy exclusion, the insurer bears the burden of demonstrating that the allegations of the complaint in the underlying claim cast the pleadings wholly within that exclusion, that the exclusion is not subject to any other reasonable interpretation, and that there is no possible factual or legal basis upon which the insurer might be eventually obligated to indemnify its insured (citations omitted)" (Utica First Ins. Co. v Star-Brite Painting & Paperhanging, 36 AD3d 794, 796 [2007]). No material issue of fact exists as to whether the allegations of plaintiffs’ legal malpractice claims are based, even in part, upon Daniel’s acts or omissions in his capacity as an officer, director, etc., of a business enterprise or any acts or omissions for a business enterprise in which he had a controlling interest, so as to bring them within either of the exclusions invoked by defendant (id). Rather, the allegations of legal malpractice were focused solely on Daniels’s negligence as plaintiffs’ counsel. "

Sometimes a case reads like a movie script or a Grisham novel.  People v Wlasiuk ; 2011 NY Slip Op 09544 ; Decided on December 29, 2011 ; Appellate Division, Third Department  reads like one. In reading the case a thought flitted across our mind…could reversible error intentionlly be built in to a case?

 
"Defendant was convicted in 2003 of the crime of murder in the second degree in connection with the death of his wife (hereinafter the victim), whose body was found next to defendant’s submerged pick-up truck at the bottom of Guilford Lake. Defendant was present at the scene and, when the ensuing investigation both contradicted his version of the events and revealed evidence suggesting that he had killed the victim at their home and then staged a motor vehicle accident, police became suspicious. Upon defendant’s appeal from his judgment of conviction, this Court concluded that "the cumulative effect of a litany of errors deprived defendant of a fair trial" and, therefore, we reversed (People v Wlasiuk, 32 AD3d 674, 675 [2006], lv dismissed 7 NY3d 781 [2006]). Following remittal, County Court granted defendant’s motion for dismissal of the original indictment. "

On the second trial, a second reversal for ineffective assistance of counsel.  "We agree with defendant, however, that reversal is nonetheless required because he received ineffective assistance of counsel. Specifically, counsel — without a reasonable strategy — (1) failed to join in the prosecutor’s request that juror No. 5 be discharged for cause once it became clear that the juror had committed misconduct in obtaining his seat on the jury, and (2) introduced evidence that this Court previously held to be unduly prejudicial, inadmissible hearsay.

With respect to the juror, when the names of potential witnesses were read during jury selection, juror No. 5 indicated that he knew Joyce Worden — defendant’s paramour, who was also the baby-sitter for the couple’s young children — as a patient in his podiatric medical practice. He expressly denied knowing any other witnesses. Juror No. 5 further maintained that he could be fair despite his prior professional relationship with Worden. He stated that he did not "even know much about the [first] trial," because he had recently moved to the area and had been busy with his medical practice and child-rearing at the time. He was then sworn as a juror and excused for the day.

During the lunch recess that immediately followed, the lead police investigator in the case, Lieutenant James Lloyd, informed the People that juror No. 5 had been interviewed by police at the time of the victim’s death. The interview with Detective Gerald Parry — whose name was also read to juror No. 5 from the potential witness list and who ultimately testified at trial — was written up in the police lead sheet, which the People read into the record. The lead sheet indicated that juror No. 5 had informed police that he knew the victim, had worked with her at a hospital, had heard nurses discussing the victim’s "problem with her husband," and referred police to other hospital employees who had further information about defendant’s prior violent acts towards the victim. In response to this information, the People and County Court were indifferent regarding whether juror No. 5 should remain. Defense counsel, however, adamantly resisted the discharge of juror No. 5, stating:

"I’m not going to pick a jury and have [Lieutenant] Lloyd decide he doesn’t like somebody on the jury or he interviewed [*4]somebody . . . I don’t want [Lieutenant] Lloyd to find out who the jurors are and then decide that he’s not happy with one of them and come up with a reason to have that juror disqualified."

The next day, following completion of jury selection but before the jury was given preliminary instructions, defense counsel advised County Court that he had been contacted by Worden, who had been a witness for the defense during the first trial. Worden told counsel that juror No. 5 had a conflict inasmuch as, while treating her as a patient, he had asked her many questions about the case. Although defense counsel asserted that he liked jurors who asked questions and wanted juror No. 5 to remain on the jury, County Court became concerned that the juror had not been forthright during voir dire. In addition, the People expressed grave doubts about the fitness of juror No. 5, stating that "his calling the police and being involved in the investigation and his failing to disclose that [fact] . . . has demonstrated that he is highly unqualified . . . to be a juror in this particular matter." Essentially, the People requested that the juror be dismissed for cause — as grossly unqualified under CPL 270.35 (1) — and claimed that they would have exercised a peremptory challenge against the juror had this information come to light when peremptory challenges remained available.^[FN2]

During an in camera inquiry, juror No. 5 revealed that he had treated defendant’s children after the first trial, but had not mentioned the relationship because the children were not named on the witness list. Although the juror initially indicated that he did not recall speaking to police about the case, he eventually admitted that he had been interviewed by Parry after the court informed him that the police lead sheets described the interview. The juror stated, however, that he had no "real affiliation with" the victim and had no information for police. In addition, the juror denied asking Worden questions about the case, explaining that she started to discuss it with him, but he steered the conversation back to her medical condition. The juror then swore that he could remain fair and impartial, and County Court did not discharge him.^[FN3]

Defendant now argues that County Court committed reversible error in failing to dismiss juror No. 5 when it became clear that the juror was grossly unqualified under CPL 270.35 (1). Pursuant to that statute, "[a] sworn juror must be discharged when facts come to light, which were not known at the time the jury was empaneled, indicating that the juror is ‘grossly unqualified to serve’" (People v Harris, 99 NY2d 202, 212 [2002], quoting CPL 270.35 [1]). In determining whether the sworn juror is "grossly unqualified," the court must, "[i]n a probing and tactful inquiry, . . . evaluate the nature of what the juror has seen, heard, or has [*5]acquired knowledge of, and assess its importance and its bearing on the case" (People v Buford, 69 NY2d 290, 299 [1987]). This test is more stringent than that used in resolving a for-cause challenge. While, under CPL 270.20 (1) (b), a challenge for cause is permissible when a prospective juror "has a state of mind that is likely to preclude him [or her] from rendering an impartial verdict based upon the evidence adduced at the trial" (emphasis added), a sworn juror may be discharged as grossly unqualified over a defendant’s objection "only when it becomes obvious that [the] particular juror possesses a state of mind which would prevent the rendering of an impartial verdict" (People v Buford, 69 NY2d at 298 [internal quotation marks and citation omitted] [emphasis added]). "

Architectural malpractice follows the same rules as legal malpractice.  Duplicitive pleadings are not permitted, and will be dismissed.  As we discussed yesterday in Beck v Studio Kenji, Ltd.
2011 NY Slip Op 33470(U); December 21, 2011; Sup Ct, NY County; Docket Number: 108995/09
Judge: Louis B. York one might plead 10 claims, only to have them cut to the basic breach of contract and malpractice.

"Recovery in quasi-contract ordinarily is precluded “when a valid and enforceable written contract” governs the specific subject matter (Clark-Fr‘Fitzpatrick, Inc. v. Long Island R. Co., 70 N.Y.2d 382, 389, 521 N.Y.S.2d 653, 656 [1987](Clark-Fitzpatrick)). Only where there is no express contract or where the validity of the contract is at issue is a quasi-contract theory possible, If there is no contract or an unenforceable agreement, the Court may find that a quasi-contact exists to prevent unjust enrichment (Clark v. Fitzpatrick,, 70 N.Y.2d 382,389, 521 N.Y.S.2d 653,656 [1987]). Here, neither party questions that a contract exists. Moreover, plaintiff bases his unjust enrichment claim on the contract itself. Therefore, an independent quasi-contract claim cannot exist and the
claim is not legally viable. "

"Next, defendants state that the fourth cause of action for breach of implied covenant of good faith and fair dealing is not viable against Studio Kenji because it is based on the same facts as the breach of contract claim. Defendants are correct. Under New York law, parties to an express contract are bound by an implied duty of good faith, but breach of that duty is merely a breach of the underlying contract (Panasia Estates, Inc. v. Hudson Ins. Co., 68 A.D.3d 530, 530,889 N.Y.S.2d 452,453 [lst Dept 20091). Accordingly, a claim for breach of the implied covenant is dismissible as redundant if it arises under the same facts which form the basis for the breach of contract claim (Constar v. JA. Jones Const. Co., 212 A.D.2d 452,453,622 N.Y.S.2d 730,73 1 [1st Dept
19951). The court therefore dismisses the fourth cause of action as well. Turning to the fifth cause of action for breach of fiduciary duty, defendants argue that the claim is redundant of the malpractice claim and therefore they seek the same relief. Defendants are correct when they state that the claims are duplicative. New York courts have consistently held that a breach of fiduciary duty claim that is premised on the same facts as the legal malpractice cause of action, is redundant and should be dismissed (E.g., Murray Hill Investments, Inc. v. Parker Chapin Flatow & Kimple, LLP 305 A.D.2d 228,229,759 N.Y.S.2d 463,464 [l” Dept 20031; Turk. Angel, 293 A.D.2d 284,284, 740 N.Y.S.2d 50, 58 [l” Dept 2002)."

Finally, defendants argue that the this Court should dismiss the cause of action, for gross negligence. Gross negligence, as both parties state, is “conduct that evinces a reckless disregard for the rights of others or ‘smacks’ of intentional wrongdoing,” (Sommer v. Federal Signal Corp., 79 N.Y.2d 540,554,583 N.Y.S.2d 957,593 N.E.2d 1365). “It is conduct that evinces a reckless indifference to the rights of others,” (id.). Whether defendants’ conduct rises to this level of culpability is a question of fact. The failure to meet applicable building and fire safety codes, as well as DOB rules and regulations during construction could arguably constitute gross negligence in light of the potentially serious consequences thereof, both financially and in creating a risk of injury to plaintiff and other residents of the building. This is a question to be resolved by a jury
and it would therefor be inappropriate to dismiss the cause of action.