Once upon a time, an attorney got a job and stayed there for life.  Now, attorneys move from one firm to the next, and carry on litigation as they move.  How does the Court parse liability between predecessor and successor attorneys in these mobile days?

Phoenix Erectors, LLC v Fogarty ; 2011 NY Slip Op 08833 ; Decided on December 8, 2011 ; Appellate Division, First Department pits three of NY’s premier legal malpractice defense firms against plaintiff, but after dismissal, the Appellate Division reversed, modified and sent the case back to Supreme Court.
 

"Within a four-month period in early 2002, Hera Construction, Inc. (Hera), a general contractor, commenced a New York action against plaintiff, a subcontractor, for breach of a construction contract, and plaintiff commenced a New Jersey action to recover payments under the construction contract from Hera and a surety from whom Hera had obtained a $1.6 million bond to cover the subcontractors’ labor and material payments. Plaintiff retained Fogarty, originally as a partner of defendant law firm White & McSpedon and subsequently as a partner of defendant law firm Litchfield Cavo, LLP, to represent it in the New York action. However, in efforts to combine the two actions, Fogarty, inter alia, drafted a stipulation that discontinued the New Jersey action with prejudice, and allowed the surety company to appear in the New York action only as a third-party defendant. A jury trial resulted in a verdict in favor of plaintiff on its counterclaim against Hera; a judgment, including interest, was entered in the amount of $194,340.30. However, immediately following the jury verdict, the third party action was dismissed, since pursuant to CPLR 1007, suits against a third party can only be maintained for contribution or indemnification claims, neither of which could be properly asserted by plaintiff against the surety company. Subsequently, Hera proved to be judgment proof and plaintiff commenced this action. "

Successor attorney, who could do nothing about the situation is out.  Predecessor attorney, and the individual are in.

"The court erred in finding that plaintiff failed to state a cause of action for legal [*2]malpractice as against Fogarty. The complaint alleged that Fogarty was negligent in failing to protect and preserve plaintiff’s claims against the surety company and that "but for" Fogarty’s negligence in drafting the New York and New Jersey stipulations, and his corresponding failure to protect plaintiff’s claims against the surety company, plaintiff would have been able to collect on its damages award against Hera (see Bishop v Maurer, 33 AD3d 497, 498 [2006], affd 9 NY3d 910 [2007]). These allegations met the requirements of a legal malpractice claim inasmuch as they set forth " the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages’" (see O’Callaghan v Brunelle, 84 AD3d 581, 582 [2011], quoting Leder v Spiegel, 31 AD3d 266, 267 [2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]).

The court properly granted defendant Litchfield Cavo’s motion to dismiss, since there was no evidence that Cavo, as superseding counsel, either contributed to the loss or could have
done anything to correct the errors of predecessor counsel (see Waggoner v Caruso, 68 AD3d 1 [2009], affd 14 NY3d 874 [2010]; Rivas v Raymond Schwartzberg & Assoc., PLLC, 52 AD3d 401 [2008]). "
 

Sometimes, the world of legal malpractice seems to be topsy-turfy in the sense that defendants point to their acts as proof that they did not commit legal malpractice, and plaintiffs point to the same act to prove the opposite.  Here in Marom v Anselmo ; 2011 NY Slip Op 08914 ; Decided on December 6, 2011 ; Appellate Division, Second Department  we see a prime example.  Did defendant agree to structure a financial transaction and then do the paperwork too late, or does the late paperwork prove the opposite?
 

"Here, the amended complaint stated a cause of action to recover damages for legal malpractice by alleging that the defendant attorney failed to structure the plaintiff’s $500,000 investment in a condominium construction project as a loan secured by a first mortgage on the condominium property as the defendant had agreed to do, and that, but for this failure, the plaintiff would have been able to recover his investment when the project was abandoned Moreover, the evidentiary proof submitted by the defendant in support of his motion, which consisted primarily of a limited liability company operating agreement signed by the plaintiff three days after the closing on the condominium property, and a loan resolution also allegedly signed after the closing, did not demonstrate that a material fact alleged in the complaint was not a fact at all, and that no significant dispute existed regarding it. Accordingly, the Supreme Court properly denied that branch of the defendant’s motion which was to dismiss the amended complaint pursuant to CPLR 3211(a)(7). "
 

We admit that sometimes we do not understand how a defendant can actually raise a defense that both it and the Court knows won’t pass a smell test.  Nevertheless, the defense gets raised. 

In M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C. ; 2011 NY Slip Op 08877
Decided on December 8, 2011 ; Appellate Division, Third Department we see a situation in which land owner is subject to a lease it gave Rite Aid.  Landowner cannot sell or least to another pharmacy within certain geographical area. (Defeinitely not Manhattan). 
 

"In support of their contention that they exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, defendants submitted an affidavit from defendant Debra Lambek in which she claimed that, although the Rite Aid lease restriction was referred to as part of the proposed 2005 contract, she did not include any reference to it in the 2006 contract because it was personal to plaintiff and, as such, did not apply to the premises being sold. Further, according to Lambek, plaintiff was aware that no pharmacy restriction was included in the 2006 contract prior to executing it. Defendants also submitted an expert affidavit in support of their position. Plaintiff opposed the motion with an affidavit from one of its members, Michael Ginsburg, in which he claimed that defendants were aware that he did not want the property to be sold for use as a pharmacy and that, when he was presented with the 2006 contract of sale, it was his understanding that defendants had accounted for his concerns. Plaintiff also submitted its own expert affidavit as well as Lambek’s examination before trial testimony from the fraud action. There, Lambek had testified that, as part of the negotiation of the 2005 sale, plaintiff demanded an indemnification clause to protect it against any claim by Rite Aid that plaintiff had violated the lease restriction, and that she forgot to include any reference to the restriction in negotiating the 2006 contract. Given this conflicting evidence, issues of fact exist as to whether defendants were negligent (see Wittich v Wallach, 201 AD2d 558, 559 [1994]; Canavan v Steenburg, 170 AD2d 858, 859 [1991]; Bloom v Kernan, 146 AD2d 916, 917 [1989]).

As for actual damages, Supreme Court concluded that whether the developer would build a pharmacy and whether Rite Aid would sue or withhold rent as a result were speculative. Accordingly, Supreme Court held that plaintiff was incapable of establishing that defendants’ negligence was the proximate cause of any damages. We cannot agree."
 

"Further, despite defendants’ contention that the Rite Aid lease restriction is personal to plaintiff and does not apply to the premises being sold, a triable issue of fact exists as to whether the development of a pharmacy would cause Rite Aid to seek to enforce the lease restriction against plaintiff. Specifically, Ginsburg recounts in his affidavit that he contacted Lambek when, after the 2006 contract was executed, he learned of the developer’s intent to build a pharmacy. He contends that she told him that the developer could not build a pharmacy, only to later acknowledge that the pharmacy restriction had not been accounted for in the contract. Ginsburg then met with Lambek and Jeffrey Siegel, a member of defendant law firm. According to Ginsburg, they never told him that Rite Aid would not seek to enforce the restriction, but instead that he was facing litigation whether he closed on the contract or not. Defendants concede that Lambek and Siegel advised Ginsburg that Rite Aid may sue plaintiff if a pharmacy were to be developed on the property, but they argue that such a lawsuit would be defensible. Their argument, however, is irrelevant. "

Meralla v Goldenberg ; 2011 NY Slip Op 08656 ; Decided on November 29, 2011 ; Appellate Division, First Department  presents an unusual exception to the rule that a criminal defendant may not sue his criminal defense attorneys.  In essence, plaintiff claims serial acts of ineffective assistance of counsel, both at the trial and at the appellate levels.  As the Court determined, he waited years too long in suing the Legal Aid attorneys.
 

"Plaintiff seeks to recover for successive acts of legal malpractice allegedly committed by defendant Goldenberg, who represented him at a criminal trial at which he was convicted of murder in the second degree, and by the Legal Aid defendants, who delayed in successfully prosecuting the appeal of his conviction (see 228 AD2d 160 [1996], lv denied 88 NY2d 989 [1996] [reversing plaintiff’s conviction on the grounds of ineffective assistance of counsel]). Goldenberg seeks contribution from the Legal Aid defendants for the portion of plaintiff’s imprisonment allegedly attributable to the delay in appealing the criminal conviction. "

"Of significant interest is the finding that delay in perfecting a criminal appeal is not necessarily actionable. "Here, the bare legal assertion that the Legal Aid defendants were negligent based on the delay in prosecuting the appeal of plaintiff’s conviction is insufficient to state a cause of action for legal malpractice. The delay was clearly attributable to the preparation of the Legal Aid defendants’ motion to vacate the judgment of conviction, which was complicated by, inter alia, the fact that two separate murder trials were at issue.
 

Client in this case has had some bad turns.  Unjustly convicted of a crime, imprisoned, exonerated, and then the suit against NYS is dismissed.  Client sues attorney for failing to file "documentary" evidence in support of the NYS suit.  At last, Supreme Court denies dismissal and the AD affirms.

In Gioeli v Vlachos ; 2011 NY Slip Op 08559 ; Decided on November 22, 2011 ; Appellate Division, Second Department  the Court finds: "Here, the plaintiff alleges that the defendants committed legal malpractice in their representation of the plaintiff in an underlying claim against the State of New York for unjust conviction and imprisonment pursuant to Court of Claims Act § 8-b. As pertinent to this appeal, "to present [a] claim for unjust conviction and imprisonment, claimant must establish by documentary evidence" his conviction of one or more felonies, that he was sentenced to a term of imprisonment, that he served "any part" of the sentence imposed, that the judgment of conviction was reversed and the indictment dismissed upon certain enumerated grounds, and that the claim was timely filed (Court of Claims Act § 8-b[3] [emphasis added]). It is undisputed that the defendants failed to submit such "documentary evidence" when they filed the underlying claim in the Court of Claims and that the underlying claim was dismissed based on that pleading defect (Reed v State of New York, [*2]78 NY2d 1, 7; Gioeli v State of New York, 39 AD3d 815; Piccarreto v State of New York, 144 AD2d 920, 921; Heiss v State of New York, 143 AD2d 67, 69; Ivey v State of New York, 138 AD2d 963; Stewart v State of New York, 133 AD2d 112, 113; Lanza v State of New York, 130 AD2d 872, 873). Accordingly, contrary to the defendants’ contention, the complaint adequately pleaded the element regarding the defendants’ failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Leder v Spiegel, 9 NY3d at 837). "

Pro-se litigants on both sides is often a recipe for long lasting litigation.  In this Landlord-Tenant case, one might say it went viral.  Starting with a garden or varietal L&T case, an appeal to the Appellate Term followed, then a pro-se action in EDNY, and then a case in civil court.  In the end, plaintiffs might be able to proceed on a single cause of action in EDNY.

Caldwell v Gutman, Mintz, Baker Sonnfeldt, P.C. ; 2011 NY Slip Op 52116(U) ; Decided on November 25, 2011 ; Civil Court Of The City Of New York, Kings County ; Levine, J. give a full history of the conflict.
"The instant motion has its genesis in Caldwell’s appeal of the decision of the Hon. Fisher Rubin (Index No. 26710/06)("Rubin decision"), dated June 4, 2007, which awarded a money judgment in favor of the plaintiff landlord, Fairfield Residential Associates ("Fairfield" or "landlord") in the amount of $11,462.93 with costs and interests. A judgment of possession had previously been granted to the landlord in a holdover action. Justice Rubin also denied Caldwell’s counterclaim seeking further rent abatement.

Caldwell appealed this decision and thereafter filed a summons with an endorsed complaint dated July 24, 2007 ("instant action") which described the substance of plaintiff’s causes of action as "wrongful use of civil proceeding" and "abuse of process." Caldwell sued for $25,000 plus interest on each cause of action. In the annexed "complaint" Caldwell set forth six causes of action alleging that the defendant Gutman et al violated a number of disciplinary rules governing the Lawyer’s Code of Professional Responsibility and "Rules of Conduct" by initiating a meritless suit against him and his wife for breach of lease and damages to the apartment, by making false statements and filing fraudulent documents with the court during the course of housing court litigation in 2003 through litigation before Judge Rubin, by sending threatening letters to take legal action for rent owed, and by failing to prove essential elements of their case at trial on June 4, 2007 before Judge Rubin. Caldwell also alleged that the firm violated the Fair Debt Collection Practices Act ("FDCPA") (15 USC §1695) by failing to validate the debt after plaintiff’s request and an unidentified New York Statute "EC 7-26 and 7-5" by misleading the court into granting Fairfield a judgment when there was no record that Fairfield is either registered with the New York Department of State or is the actual owner of the premises or was sold the debt. "

"While the instant action was stayed, Caldwell and his wife Lisa Caldwell ("Caldwells") filed a pro se complaint in federal court on October 7, 2008, against the instant defendant Gutman, Mintz, Baker & Sonnernfeldt P.C. ("Gutman") and defendants Russell Polirer; Fairfield Presidential Associates, and other defendants (collectively referred to as "federal defendants"). As delineated in the Decision and Order of the Hon. Joseph Bianco, dated March 30, 2010, 701 F. Supp 2d 340 (E.D.NY 2010), plaintiffs asserted numerous federal claims, including violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 USC 1692, et seq.; the Fair Credit Reporting Act ("FCRA"), 15 USC 1681, et seq; Rule 11 of the Federal Rule of Civil Procedure("FRCP") 11; the Federal Criminal False Statements Statute, 18 USC 1001; and federal criminal mail fraud, pursuant to 18 USC 1341 and 1346. Plaintiffs also asserted a panoply of state causes of action including violations of New York General Business Law §349; malicious prosecution; abuse of process; and wrongful use of a civil proceeding. See, 701 F. Supp. 2d at 344. "

"Judge Bianco affirmed the magistrate’s dismissal on all of these claims for failure to state a cause of action or statute of limitations, except for two. Judge Bianco declined to dismiss plaintiffs’ FCRA claim because "[i]t was possible that the two-year limitations clock did not [*5]begin to run until less than two years before plaintiffs filed the instant complaint". 701 F. Supp. 2d at 354. The court also found that a private cause of action was available under 15 U.S.C. §1681(q), the provision upon which plaintiff relies ."
 

"Furthermore, an attorney’s alleged violation of a disciplinary rule does not, by itself, give rise to a private cause of action as there is no private right of action for a violation of the Code of Professional responsibility. See Steinowitz v. Gambescia, 2009 NY Slip Op. 51370(U), 24 Misc 3d 132(A) (App. Term 2d Dept. 2009); Schwartz v. Olshan, Grundman etc al , 302 AD2d 193, 199 (2d Dept. 2003). In some cases, conduct constituting a violation of a disciplinary rule may constitute evidence of malpractice. Steinowitz v. Gambescia, supra; Schwartz, supra at 198. However, to establish a cause of action alleging legal malpractice, a plaintiff must prove the existence of an attorney client relationship between himself and the attorney being sued. Nelson v. Pamela S. Roth, 69 AD3d 605,606 (2d Dept. 2010); Volpe v. Canfield, 237 AD2d 282 (2d Dept. 1997). Here, it is impossible for Caldwell to assert a legal malpractice claim against attorneys who were not representing him but his adversaries.

For all the afore stated reasons, this Court finds that Caldwell does not have a meritorious claim and thus, upon reargument, grants defendant’s motion to dismiss. The Court notes that Caldwell may still pursue his FCRA claim and Consumer Protection Law claim in an amended complaint in federal district court. "

Granted, Cadichon v Facelle ; 2011 NY Slip Op 08447 ; Decided on November 21, 2011 ; Court of Appeals ; Pigott, J. is a medical malpractice case, but it could have easily morphed into a legal malpractice case.  The Court of Appeals’ decision on dismissals under CPLR 3216 is highly likely to arise in a legal malpractice setting and has been the basis of many a legal mal case in the past.
 

Dismissals for failure to file a note of issue come about in several different ways, but one of the more familiar is the mere failure to file the NOI after a preliminary conference date is set.  In Kings County cases are dismissed frequently, and either a stipulation or a motion to restore is necessary.  Now, courts are routinely posting a warning/notice in the Preliminary conference order which mimics the notice in this case.

"At issue on this appeal is the May 3, 2007 stipulation. At the time this stipulation was executed by the trial court and the parties, plaintiffs had complied with all discovery obligations, and Mrs. Cadichon had been deposed twice, once before and once after the consolidation of the actions. The order directed that Dr. Facelle be deposed by June 26, 2007; Dr. May on July 10, 2007; and representatives of Good Samaritan Hospital and Montefiore Medical Center by August 21, 2007, with plaintiff providing the hospital defendants with 30 days notice as to the names of the representatives plaintiffs wished to depose. The stipulation also directed plaintiffs’ counsel to file the note of issue on or before December 27, 2007.

Also served upon and signed by plaintiffs’ counsel was a "demand for service and filing of note of issue" which states as follows:

"THE COURT DEMANDS, PURSUANT TO CPLR 3216, THAT YOU RESUME PROSECUTION OF THE ABOVE ENTITLED ACTION, AND THAT YOU SERVE AND FILE A NOTE OF ISSUE [AS PER THE ANNEXED ONE PAGE STIPULATION DATED 5/3/07, I.E., BY 12/27/07][FN1] AFTER THE RECEIPT OF THIS DEMAND.
"YOUR DEFAULT IN COMPLYING WITH THIS DEMAND WITHIN THE 90-DAY PERIOD WILL SERVE AS A BASIS FOR THE COURT, ON ITS OWN MOTION, TO DISMISS THE ACTION FOR UNREASONABLY NEGLECTING TO PROCEED" (emphasis supplied).
December 27, 2007 came and went. Plaintiffs did not file their note of issue by that date, allegedly because defendants had still not been deposed. Unbeknownst to the parties, the case was dismissed on December 31, 2007 and, for the first few months of the new year, plaintiffs attempted to schedule deposition dates, the court having failed to inform any of the [*3]parties of the case’s dismissal. Counsel for Dr. Facelle agreed to produce his client for a deposition on April 7, 2008. Around that same time, in March 2008, Good Samaritan Hospital moved to dismiss the action, but those papers were returned to it by the Clerk’s Office on the ground that the motion was moot. This was the earliest that any of the litigants had learned that the matter had been dismissed. "

"It is apparent from this record that neither plaintiffs nor defendants acted with expediency in moving this case forward. We have noted, repeatedly, that "[l]itigation cannot be conducted efficiently if deadlines are not taken seriously . . . [and] that disregard of deadlines should not and will not be tolerated" (Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 [2005] citing Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]). But where, as here, the case proceeds to the point where it is subject to dismissal, it should be the trial court, with notice to the parties, that should make the decision concerning the fate of the case, not the clerk’s office. Therefore, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and plaintiffs’ complaint should be reinstated. "

When is a medical record discoverable, in general, and specifically, when are medical records from an "underlying injury" discoverable in a legal malpractice case?  One answer is set forth in Paliouras v Donohue ; 2011 NY Slip Op 08736 ; Decided on November 29, 2011 ; Appellate Division, Second Department.  The rule is simple…they are discoverable when the party has put their physical condition in controversy.  When it is really in controversy is much more difficult.
 

"A party or parties seeking to inspect a plaintiff’s medical records must first demonstrate that the plaintiff’s physical or mental condition is "in controversy" within the meaning of CPLR 3121(a), and it is only after such an evidentiary showing that discovery may proceed under the statute (see Dillenbeck v Hess, 73 NY2d 278, 287; Koump v Smith, 25 NY2d 287, 294; Neferis v DeStefano, 265 AD2d 464). Even where this preliminary burden has been satisfied, discovery may still be precluded where the information requested is privileged and, thus, exempted from disclosure pursuant to CPLR 3101(b) (see Dillenbeck v Hess, 73 NY2d at 287; Lombardi v Hall, 5 AD3d 739, 740; Navedo v Nichols, 233 AD2d 378, 379). Once the privilege is validly asserted, it must be recognized and the information sought may not be disclosed unless it is demonstrated that the privilege has been waived (see CPLR 3101[b], 4504[a]; Dillenbeck v Hess, 73 NY2d at 287; Koump v Smith, 25 NY2d at 294).

Here, the defendants failed to sustain their initial burden of demonstrating that the plaintiff’s physical or mental condition is "in controversy" in this action (see Koump v Smith, 25 NY2d at 297; McConnell v Santana, 30 AD3d 481, 482; Lombardi v Hall, 5 AD3d at 740; Navedo v Nichols, 233 AD2d at 379). Furthermore, the plaintiff validly asserted the physician-patient privilege since he did not affirmatively place his physical or mental condition in issue in this action [*2](see Koump v Smith, 25 NY2d at 297; McConnell v Santana, 30 AD3d at 482; Lombardi v Hall, 5 AD3d at 740; Navedo v Nichols, 233 AD2d at 379). "