PROTOSTORM, LLC and PETER FAULISI, Plaintiffs, -against- ANTONELLI, TERRY, STOUT & KRAUS, LLP, DALE HOGUE, FREDERICK D. BAILEY, CARL I. BRUNDIDGE, and ALAN SCHIAVELLI, Defendants/Third-Party Plaintiffs, -against- KATHY WORTHINGTON, Third-Party Defendant/Cross-Claimant, -against- DUVAL & STACHENFELD LLP and JOHN J. GINLEY, III, Third-Party Defendants/Cross-Defendants is the story of attorneys taking on work, and then blithly going about their day, placing payment of bills before working for the client. 
 

Plaintiffs had what they believed to be a very valuable invention, and hired a series of attorneys to file and follow up on the patents.  The process ended in failure.  "Plaintiff Peter Faulisi ("Faulisi") along with non-party Courtland Shakespeare ("Shakespeare") wanted to market and patent an invention they believed would be very valuable through their company Protostorm.com, LLC ("Protostorm").2 They enlisted the help of several lawyers—the Defendants and Third-Party Defendants. As a result of some combination of negligence and miscommunication the patent application was abandoned. Plaintiffs, invoking the court’s diversity jurisdiction, bring claims for legal malpractice and breach of fiduciary duty."

This 25 page opinion is well worth reading, if only for the description of cavalier behavior, refusal to do work until the last bill is paid, and a general sense of entitlement that wafts from the page.  It ends:

"For the reasons stated above, Defendants’ motion for summary judgment is GRANTED as to Plaintiffs’ breach [*57] of fiduciary duty claim but DENIED as to Plaintiffs’ malpractice claim. Plaintiffs’ motion for summary judgment as to certain elements of its malpractice claim is GRANTED, as set forth above. Third-Party Defendants’ motions for summary judgment are GRANTED as to Third-Party Plaintiffs’ indemnification claims, but DENIED as to Third-Party Plaintiffs’ contribution claims. Similarly, D&S’s and Ginley’s motion for summary judgment as to Worthington’s indemnification claims are GRANTED, but summary judgment is DENIED as to Worthington’s contribution claim. In sum, malpractice claims against the Defendants and Third-Party Defendants, in connection with the abandonment of Plaintiffs’ patent application, shall go forward."

 

This US District Court case explores the boundary between civil and criminal matters, and how representation in both is parsed during a later legal malpractice case.  ALLEN WOLFSON, Plaintiff, -against- CHRISTOPHER BRUNO, Defendant;  08 Civ. 0481 (AJP); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 144978;  December 16, 2011.

"Wolfson contacted attorney Bruno3 in October 2002 and formally retained his legal services on October 24, 2002 for his criminal case, United States v. Wolfson, 00 Cr. 0628, known as the "Five Stock Indictment" case. (Bruno Rule 56.1 Stmt. ¶¶ 1-2;4 Bruno Aff. ¶¶ 7-8, 10 & Ex. A: Rep. Agreement.) Wolfson was convicted by a jury on all counts in March 2003. (Bruno Rule 56.1 Stmt. ¶ 3; Bruno Aff. ¶ 11.)

On May 30, 2003, Wolfson and Bruno entered into a second representation agreement "intended for the resolution of these additional matters by way of a global settlement in order to minimize ultimate criminal and civil exposure." (Bruno Rule 56.1 Stmt. ¶¶ 4, 7-10; Bruno Aff. ¶¶ 15-19 & Ex. B: 2d Rep. Agreement.) The "additional matters" were: (1) United States v. Wolfson, 02 Cr. 1588 [*5] ("Freedom Surf Indictment"), an unrelated criminal stock fraud case before Judge Hellerstein in this District; (2) an unrelated criminal stock fraud investigation conducted by the U.S. Department of Justice’s Criminal Fraud Unit in Washington, DC ("DOJ Investigation"); (3) In re Wolfson, Securities Act Release No. 8614, Exchange Act Release No. 52480 (Sept. 21, 2005) ("SEC-AP"), an administrative proceeding, parallel to the Five Stock Indictment case, before the SEC in Washington, DC; and (4) SEC v. Wolfson, 02 CV 1086 ("SEC-Utah"), a civil case in U.S. District Court for the District of Utah, parallel to the Freedom Surf Indictment criminal case. (Bruno Rule 56.1 Stmt. ¶¶ 5, 9; Bruno Aff. ¶¶ 15, 18 & Ex. B.) The second representation agreement stated:
It is agreed and understood that representation by the firm pursuant to this Representation Agreement does not include the trial of any of the above-referenced matters. It is further agreed that, if for some unforseen reason any of these matters were to proceed to trial, a new retainer would have to be agreed upon.
(Bruno Aff. Ex. B: 2d Rep. Agreement.)

In the Freedom Surf Indictment case, in June 2003 Bruno offered that Wolfson would cooperate [*6] with the Government against the remaining defendants. (Bruno Rule 56.1 Stmt. ¶ 15; Bruno Aff. ¶¶ 23-25.) Wolfson and Bruno attended a Kastigar session with Assistant United States Attorneys (AUSA) David Esseks and Robert Holtz and the lead FBI agent, and Wolfson detailed his and others’ involvement. (Bruno Rule 56.1 Stmt. ¶ 15; Bruno Aff. ¶¶ 24-25.) On January 21, 2004, Wolfson formally entered a guilty plea. (Bruno Rule 56.1 Stmt. ¶ 16; Bruno Aff. ¶ 26.) In February 2004, the Freedom Surf Indictment criminal case was consolidated with the Five Stock Indictment case for comprehensive sentencing before Judge Koeltl. (Bruno Rule 56.1 Stmt. ¶¶ 6, 17; Bruno Aff. ¶¶ 14, 27 & Ex. C: Bruno 2/9/04 Letter to Court.)

Throughout 2003 and into 2004, Bruno interceded with the federal prosecutors resulting in the DOJ Investigation being dropped without Wolfson being indicted. (Bruno Rule 56.1 Stmt. ¶ 18; Bruno Aff. ¶ 28.)

In the SEC-AP case, Wolfson agreed to settle with the SEC in June 2005, and the Order was filed on September 21, 2005. (Bruno Rule 56.1 Stmt. ¶¶ 21, 23; Bruno Aff. ¶¶ 31-33, 35-36, 38-39 & Ex. F: SEC Settlement Order.) In the settlement, Wolfson agreed to a consent decree that neither [*7] admitted nor denied the underlying civil allegations, the SEC waived all aspects of a monetary judgment due to Wolfson’s inability to pay, and Wolfson agreed to conduct-related bars with a right to reapply for removal in the future. (Bruno Rule 56.1 Stmt. ¶ 22; Bruno Aff. ¶¶ 33-38 & Ex. F: SEC Settlement Order ¶ IV.)

In the SEC-Utah case, Bruno alleges that he negotiated a settlement similar to that in the SEC-AP case. (Bruno Rule 56.1 Stmt. ¶¶ 29-30; Bruno Aff. ¶¶ 41-42.) Bruno alleges that he kept Wolfson apprised of the settlement discussions and that Wolfson authorized Bruno to accept the settlement offer. (Bruno Rule 56.1 Stmt. ¶ 31; Bruno Aff. ¶¶ 43-44.) Wolfson, however, alleges that Bruno never communicated the SEC’s settlement offer to him. (Dkt. No. 48: Wolfson Opp. Br. at 2, 3.)

Meanwhile, in September 2005, Wolfson sent a letter to Avraham Moskowitz, his former counsel in the Five Stock Indictment case, asserting that Bruno and Moskowitz were conspiring with the prosecutors to secure his convictions in the consolidated criminal cases. (Bruno Rule 56.1 Stmt. ¶ 32; Bruno Aff. ¶¶ 45-46; Wolfson Opp. Br. at 3-4.) Moskowitz forwarded Wolfson’s letter to Bruno and to AUSA Esseks, [*8] who forwarded it to Judge Koeltl. (Bruno Aff. ¶ 45 & Ex. H: Bruno 9/9/05 Letter to Court; Wolfson Opp. Br. at 4.) Judge Koeltl appointed Nancy Ennis to serve as Wolfson’s Curcio counsel; she informed Judge Koeltl that Wolfson maintained his conspiracy theory even though she was unable to discern a basis for the allegations. (Bruno Aff. ¶¶ 47-48; Wolfson Opp. Br. at 4.) Recognizing an inherent conflict of interest in further representation, Judge Koeltl appointed James Cohen to represent Wolfson in the consolidated criminal cases on September 21, 2005 and relieved Bruno as Wolfson’s counsel. (Bruno Rule 56.1 Stmt. ¶ 33; Bruno Aff. ¶¶ 48-49; Wolfson Opp. Br. at 4.) Wolfson asserts that Bruno was dismissed because he was violating his fiduciary duty due to the alleged conspiracy. (Wolfson Opp. Br. at 1.) Moreover, Wolfson alleges that he "never terminated his relationship with [Bruno] when [he] put forth his conspiracy theory to judge [sic] Koeltl." (Wolfson Opp. Br. at 2.)"
 

"Wolfson presents no facts giving rise to an inference that Bruno committed legal malpractice. (See Dkt. No. 48: Wolfson Opp. Br.) The mere fact that Wolfson is unhappy with the results of his civil cases does not mean that Bruno was negligent.11 Wolfson’s belief that Bruno "violate[d] his ethical duty" and deviated from "[]good and accepted legal practice" (Wolfson Opp. Br. at 5) is insufficient to defeat Bruno’s summary judgment motion, absent any facts to support Wolfson’s ipse dixit.

FOOTNOTES

11 Wolfson [*23] reasserts that Bruno committed malpractice with regard to Wolfson’s criminal cases. (E.g., Wolfson Opp. Br. at 1.) The Court does not address these arguments because the claims relating to Bruno’s representation of Wolfson in criminal cases was dismissed. (See page 1 n.1 above.) See also, e.g., Wolfson v. Moskowitz, 08 Civ. 8796, 2009 WL 1515674 at *2, *5 (S.D.N.Y. June 1, 2009) ("[U]nder New York law, a party cannot maintain a cognizable claim for legal malpractice in connection with representation provided in a criminal case when his conviction still stands. Thus, because Wolfson has not had his conviction vacated . . . , he fails to state a claim for malpractice and his complaint must be dismissed." (citations omitted)).

Wolfson also argues that Bruno caused him to suffer economic harm through the seizure of his assets. (Wolfson Opp. Br. at 2-3.) The Court does not address this issue because the seizure was the result of an unrelated case brought against Wolfson’s son David Wolfson, who voluntarily turned over the assets in settlement. (Bruno Reply Br. at 6-7.) In addition, Wolfson asserts that Bruno lied about his previous legal experience and misinterpreted the law (Wolfson Opp. [*24] Br. at 2, 4); however, Wolfson does not show that the result of the SEC-Utah case would have been different absent Bruno’s alleged misconduct.

 

After Wolfson submitted his conspiracy theory, the only unresolved civil matter was the SEC-Utah case. (See pages 5-6 above.) Wolfson argues that he "never terminated his relationship with [Bruno] when [he] put forth his conspiracy theory to judge [sic] Koeltl." (See page 5 above.) Wolfson argues that he was never informed of any potential settlement in the SEC-Utah case, that he "never terminated defendant in the Utah or Washington case and and [sic] was by contract required to represent Plaintiff," and that Bruno "never put the court on notice that he ws [sic] retained by plaintiff . . . [or] thathe [sic] resigned and ask [sic] to be removed." (Wolfson Opp. Br. at 3.)

First, it is inconceivable that a reasonable client, having accused an attorney of conspiring with the prosecutors against him in a criminal case, would expect that attorney to continue to represent him in a related civil matter. "As between attorney and client, no special formality is required to effect the discharge of the attorney. Any act of the client indicating an unmistakable [*25] purpose to sever relations is enough." Decker v. Nagel Rice LLC, 09 Civ. 9878, 2010 WL 2346608 at *6 (S.D.N.Y. May 28, 2010) (quotations omitted); see, e.g., Pandozy v. Robert J. Gumenick, P.C., 07 Civ. 1242, 2008 WL 2190151 at *3 (S.D.N.Y. May 23, 2008); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *29 n.49 (S.D.N.Y. June 3, 2003) (Peck, M.J.) ("'[T]he attorney-client relationship is terminated only by the occurrence of one of a small set of circumstances . . . [including] acts inconsistent with the continuation of the relationship (e.g., the client’s filing a grievance with the local bar association against the attorney) . . . .’") (citation omitted), report & rec. adopted, 2005 WL 730171 (S.D.N.Y. Mar. 31, 2005), aff’d, 224 F. App’x 44 (2d Cir. 2007); Rudow v. Cohen, 85 Civ. 9323, 1988 WL 13746 at *2 (S.D.N.Y. Feb 18, 1988).

Second, Wolfson’s argument — that Bruno was never relieved by the court in the SEC-Utah case — fails because a review of the docket sheet in the SEC-Utah case shows that Bruno had never entered an appearance for Wolfson in that case. (See SEC-Utah Dkt. Sheet, No. 02-CV-01086.)

Third, Wolfson clearly knew that Bruno was no longer representing him in the [*26] SEC-Utah case: Wolfson stated in his pro se filings in that case that he had fired Bruno. (See page 6 above.) Wolfson opposed the SEC’s summary judgment motion with pro se filings. There was no "default" of any sort entered against Wolfson in the SEC-Utah case.

Finally, and most importantly, Wolfson cannot show that the result in the SEC-Utah case would have been any different but for Bruno’s actions (or failure to act). A review of the SEC-Utah docket sheet reveals that because the SEC-Utah case was stayed for a period because of the criminal case in New York, nothing affecting Wolfson in that case occurred until the SEC moved for summary judgment.12 Once the SEC filed its summary judgment motion, Wolfson appeared in the case pro se. Judge Campbell granted summary judgment to the SEC because of Wolfson’s guilty plea in the New York criminal cases (which, as noted above, cannot be challenged in this action). Judge Campbell held that "Mr. Wolfson has already admitted under oath–in the criminal proceeding against him–that he took the actions that form the basis of the SEC’s current, civil complaint against him." SEC v. Wolfson, No. 2:02 CV 1086, 2006 WL 1214994 at *1 (D. Utah May 5, 2006); [*27] see also, id. at *2 ("In his [criminal case] allocution, Mr. Wolfson admitted under oath that he agreed to take steps to artificially inflate the price of Freedom Surf stock. . . . According to Mr. Wolfson’s sworn statement, he ‘agreed to raise the price of the stock in order to defraud investors’ and that ‘[t]he whole purpose of this was to enrich [himself] as well as others.’"); id. at *6 ("[T]he centerpiece of the evidence against Mr. Wolfson is the transcript of Mr. Wolfson’s [guilty plea] allocution, wherein he admits under oath to the salient facts underlying the SEC’s claims . . . . In short, Mr. Wolfson has admitted under oath to all the elements of the fraud allegations alleged in the SEC’s Complaint.")."
 

 

In Doviak v Finkelstein & Partners, LLP ; 2011 NY Slip Op 09085 ; Decided on December 13, 2011 ; Appellate Division, Second Department  the Court has to decide whether a failure to report an offer by defendants to settle the case might be sufficient to demonstrate legal malpractice, as well as to forfeit legal fees which would otherwise be due to the attorneys.  Here, defendants obtained a jury verdict, and even succeeded in increasing the ad damnum clause, but not to the level said to have been offered by the underlying case defendants.
 

"A client has "an absolute right, at any time, with or without cause, to terminate the attorney-client relationship by discharging the attorney" (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 43; see Coccia v Liotti, 70 AD3d 747, 757). "An attorney who is discharged for cause, however, is not entitled to compensation or a lien" (Callaghan v Callaghan, 48 AD3d 500, 501; see Campagnola v Mulholland, Minion & Roe, 76 NY2d at 44; Coccia v Liotti, 70 AD3d at 757). An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to any fees for services rendered (see Quinn v Walsh, 18 AD3d 638; Matter of Satin, 265 AD2d 330; Yannitelli v Yannitelli & Sons Constr. Corp., 247 AD2d 271, 272, cert denied sub nom. Heller v Yannitelli, 525 [*3]US 1178; Pessoni v Rabkin, 220 AD2d 732; Matter of Winston, 214 AD2d 677). Moreover, even " [m]isconduct that occurs before an attorney’s discharge but is not discovered until after the discharge may serve as a basis for a fee forfeiture’" (Coccia v Liotti, 70 AD3d at 757, quoting Orendick v Chiodo, 272 AD2d 901, 902). This rule is intended to " promote public confidence in the members of an honorable profession whose relation to their clients is personal and confidential’" (Campagnola v Mulholland, Minion & Roe, 76 NY2d at 44, quoting Martin v Camp, 219 NY 170, 176). However, a client’s "dissatisfaction with reasonable strategic choices regarding litigation" does not "as a matter of law, constitute cause for the discharge of an attorney" (Callaghan v Callaghan, 48 AD3d at 501; see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562). In general, a hearing is required to determine whether a client has cause for discharging an attorney (see Teichner v W & J Holsteins, 64 NY2d 977, 979; Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 13; Byrne v Leblond, 25 AD3d 640, 642; Hawkins v Lenox Hill Hosp., 138 AD2d 572). "

 

Cohen v Engoron, 2009 Slip Op 32521 is a fascinating look at the lower end of legal malpractice litigation. In this case, plaintiff is an incarcerated inmate who tried to sue his attorney for the return of $ 8500 in legal fees. While being incarcerated was painful for plaintiff, his attorney suffered a worse fate, dying about three months before the summons and complaint.

Everyone in this case has a bad outcome to consider. Plaintiff, who had the time to litigate this matter, and some significant motivation to move forward, determined that an estate existed, and successfully served the voluntary administrator. The estate hired an attorney who had a NY address, but apparently practiced out of North Carolina.

The attorney attempts to have the case dismissed in Supreme Court, and Justice Kapnick denies his motions, then transfers the case pursuant to CPLR 325(d). While in Civil Court, the estate wins an appeal dismissing the case, as the death preceded the summons. As far as the estate goes, this seems to be the end.

However, while in Civil Court, plaintiff succeeds in an order which finds that the attorney may not practice in NY since he lacks an office for the practice of law in NY. This leads to the current Article 78 against the Civil Court Judge, which fails in this decision.

 

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. "