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.

 

Just as in Legal malpractice, so professional malpractice has its pleading rules.  In Beck v. Studio Kenji;  2011 NY Slip Op 33470(U) ; December 21, 2011; Sup Ct, NY County; Docket Number: 108995/09 ;Judge: Louis B. York we see the Court reducing the variety of claims to a contract and a negligence claim. 

" In this action, plaintiff Andrew Beck III (Beck) sues defendants Studio Kenji (Kenji), Justin Miyamoto Weiner (Weiner), and Ellen Honigstock (Honigstock), alleging eight causes of action including breach of contract, negligence, breach of fiduciary duty, and professional malpractice. Plaintiff states that as a result of defendants’ gross mismanagement of its architectural and reconstruction project and corresponding failure to investigate New York City rules, regulations, and codes, plaintiff was forced to deconstruct nearly all work performed during defendants’ three-plus years on the project, and rebuild large portions of the apartment to satisfy the requirements of the building code so the building could maintain its temporary certificate of occupancy.

The following facts of the case are undisputed:   Plaintiff purchased Unit PH7/8N,eighth and rooftop floors at 169 Hudson Street around August of 2004. Plaintiff retained Weiner on behalf of Kenji, a high-end Manhattan interior design and consulting firm, to plan and design the interior and various other elements of plaintiffs apartment, and to serve as manager, consultant, and designer for the apartment’s construction. Plaintiff and Weiner, on behalf of Kenji, subsequently agreed upon a
comprehensive eight-page design and consulting agreement (the retainer agreement). The retainer agreement stated that Kenji and Weiner would design and prepare drawings and architectural plans, file the plans with the New York City Department of Buildings (DOB), and obtain all necessary approvals for the build out. The initial sketches included the removal of a section of the separation between the existing seventh and the newly constructed eighth floors to create a double-height space and the addition of a catwalk connecting both ends of the apartment. The final architectural plans, including the above elements, were filed with the DOB.From 2004 through early 2008, plaintiff alleges, he paid in excess of one million dollars to defendants in connection with their work on the project. On or about October of 2007, with work at a standstill, plaintiffs interior designer and his project contractor each advised him to retain a new, independent architect. Plaintiff hired a new architect to review the status of the project and formally terminated defendants in early 2008. In March 2008, plaintiffs new architect inspected the construction that had
occurred and determined that many aspects of the apartment’s design, including but not
limited to the double height space and the catwalk, failed to meet both the industry
standards and the DOE! fire and safety codes and regulations. The new architect created a
plan to remedy the problems without deconstructing the original work. However, the DOB rejected the plan and, as a result, deconstruction of defendants’ work was necessary. Subsequently, plaintiff commenced this action."

"Defendants’ basis for dismissal of the claims asserted against Weiner is that the contract in question was with Kenji, not Weiner, and plaintiff retained Kenji to provide services regarding the interior spaces and roof decks for plaintiff’s apartment, with Honigstock as the architect of record for the project. As defendants argue, under New York law “persons may not be held liable on contracts of their corporations, provided they did not purport to bind themselves individually under such contracts.’’ (Wiernik v. Kurth, 59 A.D.3d 535, 537, 873 N.Y.S.2d 673,675-76 [TdDe pt 20091). Here, Weiner signed the retainer agreement in his capacity as an officer of Studio Kenji (Plaintiffs
exhibit C), rather than in his individual capacity. Nor does plaintiff raise an issue of fact as to whether Weiner held himself out as individually responsible for the work in question. Accordingly, as defendants assert, Weiner cannot be held liable for the alleged breach of contract .

We’ll discuss the further dismissals tomorrow.

 

Continuing the trend towards a combination of bankruptcy and legal malpractice, we note that bankruptcy follows, and rarely precedes legal malpractice situations, hence, we expect a swell of the intersection following the financial down-trends of the past year. Here, Tabner v Drake
2009 NY Slip Op 10006; ; Appellate Division, Third Department is an example of how settlement of an underlying case is handled in Bankruptcy Court, even when the attorneys seeking their fee have nothing to do with the bankruptcy. Apparently, individual Drake had carved out a portion of the settlement that was then taken away from him by the Bankruptcy Court, and as a result he would not sign a stipulation and release so that the law firm which had produced the settlement sums might get paid.
 

"In 1998, plaintiffs commenced an action to recover legal fees for services allegedly rendered to defendant Ralph H. Drake Jr.’s residential and commercial real estate business — defendant RHD Construction Corporation. In response, Drake and RHD asserted negligence and malpractice counterclaims against plaintiffs. Multiple pretrial proceedings ensued (see e.g. Tabner v Drake, 9 AD3d 606 [2004]) and, in 2001, Drake filed for bankruptcy under chapter 7 of the Bankruptcy Code.

Shortly after the start of trial, the parties entered into a stipulation of settlement in open court which, among other things, contemplated the exchange of general releases from the parties with respect to all aspects of the litigation. The parties acknowledged that the Bankruptcy Court’s approval of the settlement was required and, in November 2007, the Bankruptcy Court issued an order approving the settlement and authorizing the bankruptcy estate’s trustee to execute general releases in accordance therewith, specifically authorizing the payment of $50,000 to plaintiffs by the trustee. Nevertheless, citing purported inconsistencies between the actual [*2]terms of the settlement and the "Bankruptcy Court approval relative to the amounts to be paid to each defendant," Drake and RHD refused to execute their respective releases. Consequently, plaintiffs moved in Supreme Court for an order directing that defendants execute the releases called for within the agreement and enforcing the stipulation of settlement. Supreme Court granted the motion, prompting this appeal. "

"Accordingly, although the parties agreed to a total settlement of $350,000, with $50,000 going to plaintiffs, $295,000 to RHD and $5,000 to Drake, the Bankruptcy Court properly observed that the bankruptcy estate was the "legal and equitable owner of the litigation whether through [Drake] directly or as the sole shareholder of RHD" (see 11 USC § 541). Its resultant order — that $50,000 be tendered to plaintiffs and $300,000 be tendered to the bankruptcy trustee — thus adequately reflects the terms and conditions of the settlement. In view of the foregoing, we find no reason to disturb Supreme Court’s order."

 

Attorney fees and legal malpractice should have nothing to do with each other. However, the general rule is that no legal fees may be awarded in the face of legal malpractice and its corollary is that if legal fees are awarded by a court or tribunal, then there could have been no legal malpractice, whether the issue is briefed or not.

Here is another example: Liberty Assoc. v Etkin ; 2010 NY Slip Op 00225 ; Decided on January 12, 2010 ;Appellate Division, Second Department :
 

"In January 2003 the Ravin Firm commenced an action against Liberty Associates in the Superior Court of New Jersey to recover fees for the legal services rendered. In 2004, during the pendency of the instant action, Liberty Associates and the Ravin Firm settled the New Jersey fee dispute action (hereinafter the fee dispute action), which was dismissed with prejudice. Upon learning of the settlement, Etkin moved for summary judgment dismissing the complaint in the instant action. The Supreme Court granted the defendant’s motion. We affirm. ""This action to recover damages for legal malpractice against Etkin, as a member of the Ravin Firm, arises out of the same series of transactions as the fee dispute action asserted by the Ravin Firm against the plaintiff herein for legal fees. Upon resolution of the fee dispute action, the parties, by their attorneys, executed a stipulation of dismissal with prejudice and without costs. A stipulation of discontinuance with prejudice without reservation of right or limitation of the claims disposed of is entitled to preclusive effect under the doctrine of res judicata (see Matter of Hofmann, 287 AD2d 119, 123 ["An order of discontinuance effecting settlement on the merits is accorded the same res judicata effect as the entry of judgment on the merits"]; see also Fifty CPW Tenants Corp. v Epstein, 16 AD3d at 294).

Here, Etkin established, prima facie, that the legal services at issue in the instant action and in the fee dispute action were the same and, thus, that Liberty Associates’ settlement of the fee dispute action with the Ravin Firm, of which Etkin was a member, precludes Liberty Associates from maintaining the instant action against Etkin under the doctrine of res judicata (see Izko Sportswear Co, Inc. v Flaum, 25 AD3d 534, 537)."

 

"The defendants Alisa Schiff and Schiff & Skurnik, PLLC (hereinafter together the Schiff defendants), who served as the plaintiff’s attorney with respect to the drafting, and the execution by the plaintiff, of a contract to sell her home (hereinafter the contract of sale), and the defendant Michael Gross, who served as the plaintiff’s attorney for the related real estate closing, failed to meet this burden. Contrary to the Supreme Court’s conclusion, the Schiff defendants and Gross failed to demonstrate, prima facie, that the plaintiff did not sustain any actual or ascertainable [*3]damages as a result of their alleged negligence. The contract of sale provided that the purchase price of the plaintiff’s home was $615,000, with the plaintiff to credit the purchaser with the sum of $155,000 at the closing. Approximately $241,000 of the proceeds of the sale went to satisfy the plaintiff’s mortgage, and the plaintiff received approximately $216,000. The Schiff defendants and Gross failed to eliminate triable issues of fact as to the propriety of the $155,000 credit to the purchaser and other disbursements made of the proceeds, and thus, as to whether the plaintiff should have obtained more money for the sale of her home than she received. "  So, in Gelobter v Fox ;2011 NY Slip Op 09268 ; Decided on December 20, 2011 ; Appellate Division, Second Department we see that both sets of defendants failed to clear themselves of potential liability. 
 

"The Schiff defendants failed to meet their prima facie burden on the issue of proximate cause, as they merely established, in this respect, that they did not participate in the real estate closing. However, this fact did not negate any negligence on their part in the drafting of the contract of sale, which the plaintiff signed under Schiff’s representation, and in connection with alleged alterations made to the purchase price on the contract prior to the real estate closing. In other words, as the contract of sale had already been signed and altered before the real estate closing, contrary to the Schiff defendants’ contention, they did not establish as a matter of law that Gross had "a sufficient opportunity to protect the plaintiffs’ rights" (Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641), such that Schiff’s conduct could not have proximately caused the plaintiff’s damages. "

 

Broadway investors often take a big chance.  they put up large sums of money in the hope that the show will be a big hit.  Sometimes the show fails, and sometimes the show closes before it opens.  Here plaintiff-investor lost $ 100,000 right off the bat.  Then there was a legal malpractice case over who owned the rights to the Show.  Worse, he loaned $ 100,000 to an attorney, and the attorney was playing with him.

COREY FRIEDMAN, Plaintiff, -against- MARK SCHWARTZ, Defendant.;CV 08-2801 (WDW)  UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 144925December 16, 2011 is an otherwise straight-forward story of a contract and the denouement. 

 

"Plaintiff was introduced to Defendant by Auslander. Trial Transcript ("Tr.") at 4. Defendant was a Broadway producer who was putting together a show to be named "Harmony [*3] on Broadway." Tr. 4. Auslander thought Plaintiff would be interested in investing. Id. Plaintiff met with Defendant in summer 2003 at Sardi’s restaurant in Manhattan. Tr. 5. Prior to that meeting, Defendant had called Plaintiff to discuss the show, explaining that Barry Manilow had written the music for it, and Barry Sussman had written the book. Tr. 5. Plaintiff and Defendant had another meeting a few weeks later during which Plaintiff introduced Defendant to a colleague who also expressed an interest in investing. Tr. 6.

In late September of 2003, Plaintiff invested $100,000 in Harmony on Broadway LLC. Tr. 6. The funds were wired through Auslander to an account for Harmony on Broadway LLC at JP Morgan Chase, located at 3 Times Square, New York, New York. Tr. 8. He then received a packet in the mail showing him to be a limited partner in the LLC. Tr. 8. Plaintiff’s ultimate return would be determined by the show’s profits and the final number of investors. Tr. 9.

Defendant solicited additional monies from Plaintiff. Tr. 6. According to Plaintiff, Defendant was anticipating funding from Barry Manilow’s record company, Concord Records, and was looking for investors to provide short-term [*4] loans until that money came in. Tr. 9-10.

Plaintiff alleges that, on October 3, 2003, he made a loan of $100,000 to Defendant. Tr. 36. According to Plaintiff, Defendant requested the loan as a short-term, personal loan until other investments were received. Tr. 10. Plaintiff testified that Defendant was willing to provide a lien on his residence in Florida to secure the loan and provide Plaintiff with ten percent interest over the life of the loan. Id. According to Plaintiff, Defendant’s girlfriend, a Florida attorney, would draft the security document for the loan. Tr. 11. Defendant claimed that he had provided a similar security document for a larger investment and would do the same for Plaintiff. Id.

Similar to the money-transfer process for the investment in the play, the funds were wired from Auslander to an account for Harmony on Broadway LLC. Tr. 13. Plaintiff testified that Defendant needed the money right away to keep the show in business and that time was of the essence. Tr. 13, Tr. 15. Auslander testified that the money was wired to an account for Harmony on Broadway LLC in the interests of time, due to the protocols of Charles Schwab and Company requiring three to five business [*5] days to set up wiring instructions for a new account. Tr. 48. According to Auslander, Defendant would not have accepted anything but a personal loan at the time the second investment was made because Defendant did not want to dilute his interest in the production by selling additional units to investors. Tr. 46-47. Furthermore, Auslander stated that Defendant told him that he was "incredibly relieved and very thankful" for the personal loan and admitted to him that Plaintiff "bailed him out and bellied up to the bar." Tr. 49.

On October 27, 2003 Plaintiff emailed Defendant inquiring why he had not yet received the document securing the "$100,000 personal loan that [Defendant] guaranteed with [his] home as collateral." Plaintiff Exhibit ("P. Ex.) 7. Defendant responded to Plaintiff on October 27, 2003 stating, "I agree with you corey [sic], and called you this morning, left a message at yor [sic] home and on your cell, I’ll take care of it, promise and sorry you have been great! and you have my word, which is most important." P. Ex. 8. Plaintiff never received legal documentation securing the loan nor any documentation evidencing that the loan was a corporate debt. Tr. 17-18.

Defendant [*6] failed to secure financing from Concord Records and the show closed before it was opened. Tr. 18. Plaintiff, like the other investors in the production, lost his $100,000 investment in the show without recovering any money. Tr. 18-19. Plaintiff testified that subsequent to the show closure, Barry Manilow and Bruce Sussman commenced litigation to secure their rights to the show and succeeded in securing those rights. Tr. 19. The producers and investors of the show then sued to win those rights back from Manilow and Sussman, but their claims were denied because they were not filed on time. Tr. 19-20. Subsequently, a legal malpractice suit was commenced by the producers against their former attorney, Robert Barandes. Tr. 20. Plaintiff testified that Defendant acted as a "conduit" between the lawyers and the investors throughout the litigation. Id."
 

Plaintiff retained defendant to represent him in a matrimonial action.  In the end, he was just too poor to get divorced.  The divorce action ended in a settlement, and the marriage remained intact.  Now, plaintiff husband sues attorney, and is defeated by documentary evidence that completely contradicts plaintiff’s position and is successful on motion to dismiss.

Faath v Roth ;2011 NY Slip Op 33366(U); December 12, 2011 ;Supreme Court, Nassau County
Docket Number: 003912/11; Judge: Joel K. Asarch.

"The plaintiff in this action seeks to recover damages for legal malpractice. As and for his first cause of action, he alleges that he retained the defendant to represent him "in connection with
a matrimonial matter" and that the defendant "failed to properly represent (him)." He alleges that
as a result of the defendant’s malpractice , he "is still married" and that he "was pressured by the
defendant into executing an agreement with his wife which the defendant failed to explain to him
and which is of doubtful enforceability. " He seeks damages in the minimum amount of $1 00 000.
As and for his second cause of action, he alleges that the defendant’s charges were excessive and that he billed for work not performed. He seeks damages of a minimum of $40 000.

The only damages alleged by the plaintiff is that he is "still married." To baldly equate remaining married" with damages is inappropriate and unacceptable. The plaintiff s failure to plead actual ascertainable damages which were proximately caused by the alleged malpractice requires dismissal of a legal malpractice claim under CPLR 3211 (a)(7). Wald v Berwitz 62 AD3d 786 (2
Dept 2009), citing Rudolf v Shayne. Dachs. Stanisci. Corker & Sauer, 8 NY3d 438 442 (2007);
Cummings v Donovan, 36 AD3d 648 (2 Dept 2007).

In any event, the defendant lawyer cannot be faulted for the plaintiff s continued marred status. The Settlement Agreement which was signed by the plaintiff precludes such a finding. It provides:
Each party has had a full opportunity and has consulted at length with his or her attorney regarding all of the circumstances hereof and acknowledge that this Agreement has not been the result of any fraud, duress or undue influence exercised by either party upon the other or by any other person or persons upon the other.  More importantly, the plaintiff signed a detailed letter by counsel dated June 19 2008 which provides that the terms of the Separation Agreement were negotiated by him and he has required  that  they be included in it; that he realized he will continue to be married; that it is his desire that the divorce action be discontinued so that he could live under the terms of the Agreement; and that he had advised counsel that "it is not economically feasible for (him) to be divorced. " It further notes that the Separation Agreement is very risky as it relies too much on the parties ‘ good faith; that it may not be enforced in court; and, that it is a product of his and his wife s negotiations with little legal input. In sum, the letter by the defendant attorney states:

I have attempted to do my best within the parameters and guidelines you have set. However, you have precluded me from attempting to fully protect you under the terms of this agreement. I have done all possible within those guidelines and parameters. You have limited the amount of negotiation and you are satisfied with the terms of the agreement as they are presently written.
I have given you every opportunity to review this agreement in detail and to ask any questions you desire. You have had the opportunity to review this agreement and ask the questions and had sufficient time to digest the terms of this agreement, it is my understanding from speaking to you, that you have fully read the agreement.  If you have any questions, now is the time to ask prior to executing this agreement, which will be binding upon you and your spouse.  The plaintiff acknowledged as follows: I have read the separation agreement and I am familiar with the terms. I am executing same voluntarily and under no duress and over the advice of my  counsel as set forth in this letter. In a follow-up letter by the defendant lawyer dated December 8, 2008 which was again
signed by the plaintiff, counsel cautions that contract law, not the Domestic Relations Law, would
apply to the agreement and warned that there was no telling what a court would do if called upon to
enforce some of the provisions. In sum, the defendant lawyer warned:  You have expressed your willingness to settle this matter under the terms of the  agreement. Although, I disagree with many of the terms contained therein, you still wish to proceed under the terms of the settlement agreement as written. Settling this matter just to settle is not the right choice. However, based upon
your desire to settle under the terms as written, I will permit you to execute the  agreement over my objection. In combination with the Settlement Agreement, the letters submitted by the defendant
attorney which were signed by the plaintiff flatly refute any claim by him that he remained married
or was otherwise damaged on account of the defendant’ s negligence. See Malarkey v Piel supra

 

 

 

It is said that problems, or bad things, come in threes. In this example, the client lost a contract action, in which he had good counterclaims, because of his attorney’s failures. Plaintiff then sues the attorney, and in Benson Park Assoc., LLC v Herman ; 2010 NY Slip Op 03847 ;Decided on May 6, 2010 ;Appellate Division, First Department the defendant attorney defaulted on an answer. Then, the attorney for defendant apparently defaulted on the motion for partial summary judgment itself.
"In the underlying action, defendant failed timely to file an answer on behalf of plaintiff, and a default judgment was entered against it (Mega Constr. Corp. v Benson Park Assoc. LLC, 60 AD3d 826 [2d Dept 2009]).

A party seeking to vacate a judgment on the basis of excusable default must demonstrate both a reasonable excuse and a meritorious defense (Mutual Mar. Off., Inc. v Joy Const. Corp., 39 AD3d 417, 419 [2007]). The court properly denied defendant’s third request for an adjournment of plaintiff’s motion for
partial summary judgment (see Matter of Desmond K. v Kevin K., 59 AD3d 240 [2009], lv denied 12 NY3d 711 [2009]; Treppeda v Treppeda, 212 AD2d 592 [1995]). While in support of the motion to vacate the default, defendant claimed that he had had a "previously scheduled engagement," he offered nothing to substantiate this claim. Moreover, at no time after the motion for partial summary judgment was submitted did defendant seek leave to submit opposition. In addition, defendant failed to offer a meritorious defense to the malpractice claim, other than to question the amount of damages. "