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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The first thing that should be said is that this is not a legal malpractice case; it is, however, a breach of fiduciary duty case.  A agrees with Plaintiff that plaintiff will lend her name to two real estate transactions to purchase one family homes, and A will rent them out, collect rent, and pay the mortgages.  All proceeds, except A does not pay the mortgages, which are in P’s name. The inevitable then happens.  Are the two attorneys involved in the closings liable to P?

In Malysz v Adlerstein ;2011 NY Slip Op 52111(U) ; Decided on November 14, 2011 ; Supreme Court, Nassau County ; Marber, J.  they are not.  "Accordingly, the Plaintiff is required to establish that the Attorney Defendants herein failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the Attorney Defendants’ breach of this duty proximately caused the Plaintiff to sustain actual and ascertainable damages (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Bilin v. Segal, Goodman & Goodman, LLP, 81 AD3d 680 [2d Dept. 2011]). "This requires a showing that [*5]but for the [Attorney Defendants’] negligence … [the plaintiff] would have prevailed in the underlying action" (Walker v. Glotzer, 79 AD3d 737 [2d Dept. 2010]). A failure in any one element results in a dismissal of the claim (Albanese v. Hametz, 4 AD3d 379, 381 [2d Dept. 2004]). Furthermore, unless the ordinary experience of the finder of fact provides a sufficient basis for judging the adequacy of the professional service, or the attorney’s conduct falls below any standard of due care, expert testimony is also necessary to establish that the attorney breached a standard of professional care and skill (Demetriou v. Connexion I Real Estate Servs., Inc., 24 Misc 3d 127[A], [App. Term, 2nd, 11th & 13th Jud. Dists. 2009]).

In addition, in asserting a claim for a breach of a fiduciary duty, a plaintiff is obligated to set forth "the circumstances constituting the wrong…in detail" (CPLR § 3016 [b]; Daly v. Kochanowicz, 67 AD3d 78 [2d Dept. 2009]).

Initially, it is noted that inasmuch as the Plaintiff has admitted that the Attorney Defendants’ sole role in the transaction was to act as her closing attorney and to assist her in acquiring title to both properties, this Court finds that this transaction was a garden variety real estate transaction that does not require the Attorney Defendants on the instant motions to furnish expert affidavits to establish that they did not breach any standard of professional care (Darby & Darby v. VSI Intl., 95 NY2d 308, 312 [2000]).

Furthermore, the evidence indicates that the Attorney Defendants did not proximately cause the Plaintiff to suffer any damages. The Plaintiff entered into the transaction knowing that she could not afford the mortgages and that she was not going to make the mortgage payments. While this Court is not convinced that the Attorney Defendants were not aware of the relationship between Adlerstein and the Plaintiff (because Adlerstein was the one who retained the Attorney Defendants on the Plaintiff’s behalf in the first place), the evidence nonetheless confirms that the Plaintiff did not discuss with the Attorney Defendants the side agreement that she had with Adlerstein. Moreover, even assuming that the Attorney Defendants knew or should have known of the relationship between Adlerstein and the Plaintiff, there is no evidence on this record that the Attorney Defendants were aware (or should have been aware) that the Plaintiff was fraudulently executing the mortgage documents.

While both Attorney Defendants acted as the Plaintiff’s counsel at their respective closings which necessarily created a fiduciary relationship, as stated above, there is no evidence that either attorney breached that duty in connection with the respective transactions, and furthermore, that said breach was the "but for" cause of any damages. In light of the foregoing, this Court finds that the Defendants have established their prima facie entitlement to judgment as a matter of law. "

In a word, no, and the law firm who gave an opinion letter is not responsible.  In Fortress Credit Corp. v Dechert LLP   2011 NY Slip Op 08626; Decided on November 29, 2011 ;
Appellate Division, First Department  we see Dechert LLP obtain a reversal of Supreme Court’s decision and dismissal.  Here are the facts of more fallout from Marc Dreier:
 

"In 2005, Marc Dreier, who was then an attorney, proposed to plaintiffs that they participate in a short-term note program to finance the purchase of foreign real estate assets. The designated borrower would be Dreier’s clients, Solow Realty & Development Company, LLC, and affiliated companies controlled by real estate developer Sheldon Solow (collectively Solow Realty), and Dreier would be the guarantor. The parties executed two loans totaling $60 million in 2006, and, in 2008, Dreier proposed another $50 million loan transaction. For this last loan transaction, plaintiffs required Solow Realty and Dreier to retain independent counsel to issue a legal opinion as to whether Solow Realty and Dreier had carried out the necessary formalities to render the loan documents valid and binding on them. Ostensibly, Solow Realty and Dreier retained defendant for this purpose. Dreier furnished the necessary documents and information to defendant for the preparation of the opinion. All the documents to which Solow Realty was a signatory appeared to have been signed by Solow Realty, and some bore "what appeared to be" the signatures of Sheldon Solow and Solow Realty’s CEO.

Plaintiffs contend that they relied on defendant’s legal opinion that the loan documents were duly executed and delivered and that the loan was a valid and binding obligation on Solow Realty and Dreier. Plaintiffs wired $50 million to an attorney trust account set up at Dreier’s firm. Several months later, Dreier was arrested in connection with another fraud scheme, and plaintiffs discovered that Solow Realty had no knowledge of and was never a party to the loan transactions and that Dreier had falsified the documents and forged the Solow Realty signatures.

Although there is no contractual privity between the parties, the complaint sufficiently alleges a relationship of "near privity" for the purpose of stating a cause of action for negligent misrepresentation or negligence (see Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 384-385 [1992]). Plaintiffs allege that the particular purpose of the opinion letter was to aid them in deciding whether to enter into the loan transaction, that defendant was aware that they were relying on the opinion in making that decision, and that defendant evinced its understanding of that reliance by addressing the legal opinion to them. However, the complaint fails to allege (a) that plaintiffs informed defendant that its obligations were not limited solely to a review of relevant and specified documents or (b) that plaintiffs informed defendant that it was to investigate, verify and report on the legitimacy of the transaction. Absent such factual allegations, plaintiffs cannot establish that defendant breached a duty of care. As Dreier was Solow Realty’s attorney and the guarantor of the loan, defendant had no reason to suspect that Solow Realty was not in fact a party to the loan transaction or that Dreier forged the signatures of its principal and CEO. We note that plaintiffs had previously made two large loans to Dreier, while represented by international firms that specialized in financial transactions. Prior to Dreier’s arrest, plaintiffs never suspected fraud.

This case was brought against the estate of an attorney, and claims legal malpractice.  One sometimes wonders how the family of a deceased attorney picks up the pieces of the practice, turns what assets remain (especially cases in situ) into something of value, hands the cases off to other attorneys, and closes out that portion of their lives.

Here, the estate is sued for claimed mistakes in the handling of a security agreement, and the loss of a significant amount of money.  In Americana Capital Corp. v Nardella ; 2011 NY Slip Op 33002(U); November 9, 2011 ; Supreme Court, New York County; Docket Number: 604179/2005
Judge: Saliann Scarpulla, we see the following:

In or about November 2005, ACT commenced this action alleging that the deceased, Allan J. Goodman, ("Goodman") committed legal malpractice by negligently preparing a November 3002 Master Security Agreement and related documents. ‘There was no retainer agreement executed by Goodman and ACC’s president and sole shareholder Garald R. Paulis (“Paulis”). According to the allegations of the complaint, the Agreement was intended to secure a loan from ACC to Frank Kania ("Kania") by placing certain of‘Kania’s antiques and real property as collateral.  If Kania breached the Agreement, ACC could seize all  of his collateral property. Kania signed the Agreement and a modification to the Agreement on November IS, 2002.  Paulis signed the
Agreement on November 29, 2002.

In or about August 2003, Kania defaulted on his loans from ACC.  In November 2003, ACC  contacted attorney Howard Kantrowitz ("Kantrowitz") who  ultimately concluded (hat the Agreement would be unenforceable in Connecticut, where the collateral property was located. In or around 2005, Kantrowitz prepared a new security agreement  for Kania and ACC that was enforceable in Connecticut.  Pursuant to that agreement, the amount owed to ACC was reduced from 1.75 million to 1.3 million dollars.  Kania’s collateral was collected and sold, however, according to ACC, the assets only brought in a fraction of the amount loaned to and owed by Kania.

 A legal malpractice claim accrues when all of the facts necessary to the claim have occurred  and an injured party can obtain relief in court.  McCoy v. Feinman, 99 N.Y.2d 295, 301
(2002). Here, the Agreement, which is the subject of the legal malpractice action, was
fully executed when signed by Paulis on November 29, 2002. As such, ACC’s claim could only accrue as of that date, when the Agreement became practicable. Thus, because the summons with notice was filed on November 23, 2005, the legal malpractice claim is not time barred..
 

Further, this action is not barred by the Dead Man’s Statute. Pursuant to CPLR 4519 the Dead Man’s Statute docs not, by its terms, prohibit the introduction or documentary evidence against a deceased estate. Rather, an adverse party’s introduction of a document authored by a deceased "does riot violate the Dead Man’s Statute, as long as the document is authenticated by a source other than an interested witnesses’ testimony concerning a transaction with the deceased.

Sometimes a legal malpractice complaint is difficult to understand and sometimes it is plain as day. This case seems to be an example of the plain variety. Gioeli v Vlachos ;2011 NY Slip Op 08559 Decided on November 22, 2011  Appellate Division, Second Department .
 

‘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). "