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. "

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). "