What must plaintiff prove in order to be successful in a legal malpractice case?  SOFIA FRANKEL, Plaintiff, – against – BRIAN F. McDONOUGH and DRINKER BIDDLE & REATH LLP, Defendants.10 Civ. 6106 (DAB)UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 123992;October 24, 2011 shows us that plaintiff must clear a very high bar.  Here, plaintiff was a stock broker who was the subject of a FINRA arbitration which ended in a multi-million dollar award against her and the brokerage.  She claims that her attorneys, who represented both her and the brokerage, could have had her dismissed personally and failed.

"It is well-established that in order to state a claim for legal malpractice under New York law, a Plaintiff must allege [*11] "(1) the negligence of an attorney; (2) the negligence was the proximate cause of the loss sustained; and (3) proof of actual damages." Rondout Landing at the Strand, Inc. v. Hudson Land Development Corp., 361 F.Supp.2d 218, 223 (S.D.N.Y. 2005).2 "In order to plead causation adequately in a legal malpractice claim, the plaintiff must show that but for the attorney’s negligence, ‘what would have been a favorable outcome was an unfavorable outcome. The test is whether a proper defense would have altered the result of the prior action.’" Flutie Bros. v. Hayes, No. 04 Civ. 4187 (DAB), 2006 WL 1379594 at *4 (S.D.N.Y. 2006) (quoting D’Jamoos v. Griffith, No. 00 Civ. 1361, at *5 (E.D.N.Y. 2001)). See also Pellegrino v. File, 738 N.Y.S. 2d 320, 323 (1st Dep’t) (citations omitted), lv denied, 98 N.Y.2d 606 (2002). "This causation requirement, a high bar to attorney malpractice liability, seeks to insure a tight causal relationship exists between the claimed injuries and the alleged malpractice, and demands a nexus between loss and injury. Flutie Bros., 2006 WL 1379594 at *4 (citation and internal quotation marks omitted). The "’but for’ [causation] prong requires the trier of fact in effect [*12] [to] decide a lawsuit within a lawsuit, because it demands a hypothetical re-examination of the events at issue absent the alleged malpractice." Littman Krooks Roth Ball, P.C. v. New Jersey Sports Prod., Inc., No. 00 Civ. 9419, 2001 WL 963949, at *3 (S.D.N.Y. Aug. 22, 2001) (citing N.A. Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy, et al., 397 N.Y.S.2d 142, 143 (2d Dep’t 1977)"

"The Court finds that Plaintiff has not sufficiently alleged negligent conduct by Defendants. Plaintiff primarily alleges that Defendants committed malpractice by failing to challenge the arbitrators’ entry of a joint and several award against Plaintiff and Lehman Brothers. However, as the New York Supreme Court and the Appellate Division have accurately observed, the Statement of Claim brought by the Underlying Claimants sought recovery from Lehman Brothers only as a result of Plaintiff’s own misdeeds. Further, though the Damages section of the Statement of Claim did not specifically seek joint and several damages against Plaintiff and Lehman Brothers, it nevertheless [*13] expressly sought to impose several liability on Plaintiff for the entire amount of Underlying Claimants’ out-of-pocket damages, all of which arose from her misconduct. (See Compl. Ex. A at 43 (seeking an award against Plaintiff and Goldman Sachs, jointly and severally, for the entire $7.7 million Underlying Claimants claimed as out-of-pocket losses, and against Lehman Brothers for only the last $2.2 million in out-of-pocket losses).) Consistent with even that portion of the Statement of Claim which Plaintiff now identifies as defective, therefore. Plaintiff could have been held severally liable for the entire amount which was awarded jointly and severally against her and against Lehman Brothers, as well as that which was awarded jointly and severally against her and Goldman Sachs. Since the joint and several award Plaintiff challenges could in any case have been awarded against her severally, or jointly with Goldman Sachs, wholly consistent with the ad damnum clause, Plaintiff’s allegation that Defendants were deficient in allowing the entry of an award against her jointly and severally with Lehman Brothers fails to state a claim for attorney negligence."

The law of legal malpractice is different; it is ubiquitous.  We see this theme again and again in the published cases.  In products liability law, privity was jettisoned years ago.  It remains in legal malpractice law.  In In re: HIRSCH ELECTRIC CO., INC., Debtor. ALLAN B. MENDELSOHN, as Chapter 7 Trustee of the estate of HIRSCH ELECTRIC CO., INC., Plaintiff, M. CARL LEVINE, MORGULAS & FOREMAN, P.C., JERROLD L. MORGULAS and McLAUGHLIN & STERN, LLP, Defendants.; Case No. 894-81580-reg, Chapter 7, Case No. 809-8452-reg;UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NEW YORK;2011 Bankr. LEXIS 4040;
October 20, 2011 we see the effect:

"In the underlying action, the Debtor (subcontractor) sued Morse (general contractor) and LIJ (owner), for contract damages. All agree that the claims against Morse were worthless because Morse has ceased operations and any judgment would be uncollectible by the Debtor. The Plaintiff argues, however, that the Debtor’s claims against LIJ were valid and valuable. The Defendants argue that the Debtor had no viable cause of action against LIJ because there was no actionable legal relationship between the Debtor and LIJ, i.e., no privity. The Plaintiff argues that the claims against LIJ were valid, but for the Defendants’ malpractice, because Morse (with whom the Debtor clearly had a contractual relationship) was an agent of LIJ with the ability to create [*4] liability for LIJ under the subcontract. Thus, the theory is that the Debtor had valid claims against LIJ as the principal for whom the agent, Morse, was acting.

For the reasons that follow, the Court finds that there was no general agency relationship between Morse and LIJ, and as such no privity between the Debtor and LIJ which would have permitted a direct claim by the Debtor against LIJ. The Plaintiff has conceded that a finding by the Court that no agency relationship exists would defeat the legal malpractice claims in this case. Therefore, summary judgment shall be entered in favor of the Defendants."

"In order to establish a claim for legal malpractice, the Plaintiff must prove "that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community . . . . In addition, the plaintiff must establish that the attorney’s negligence was a proximate cause of the loss sustained, that the plaintiff incurred actual damages as a direct result of the attorney’s actions or inaction, and that but for the attorney’s negligence, the plaintiff would have prevailed in the underlying action or would not have sustained any damages . . . ." Cannistra v O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 728 N.Y.S.2d 770 (N.Y. App. Div. 2001) (citations omitted)."

"The Plaintiff urges this Court to find that where there is a principal/agent relationship between a project owner and a general contractor, privity exists between the subcontractor and the owner despite the absence of any direct contact between those parties. This theory derives from the general rule under New York law, that "an agent for a disclosed principal is not liable to third parties for any sums owed by the principal." Owen Steel Co., Inc. v. George A. Fuller Co., et al., 563 F.Supp. 298, 300 (S.D.N.Y. 1983) (finding agency existed between general contractor and owner and dismissing subcontractor claims against general contractor). This means that a general contractor is not liable to a subcontractor for contract damages where it is proven that the general contractor was acting as the agent of the owner. Id. The logical extension of this rule, relevant in the context of the instant matter, is that in situations where a general contractor is found to be the agent for the owner, a subcontractor’s contract claim is properly brought against the [*14] owner even if no direct contractual relationship exists between the subcontractor and the owner. Cf. Superb Gen. Contr. Co. v. City of New York, 893 N.Y.S.2d 866 (N.Y. Sup. Ct. 2010) (dismissing direct subcontractor claim against project owner where construction manager was not an agent or representative of the owner)."
 

"For all of the foregoing reasons, the Court grants summary judgment in favor of the Defendants. Judgment will issue in favor of the Defendants."

Plaintiff buys a house which it says was illegally constructed, and further says that since the seller worked for Oyster Bay, the town overlooked illegal construction and gave a Certificate of Occupancy.  This action, JULIE LAMOTHE and JUSTIN LAMOTHE, Plaintiffs, -against- THE TOWN OF OYSTER BAY, THE TOWN OF OYSTER BAY DEPARTMENT OF PLANNING AND DEVELOPMENT, et al, 08-cv-2078 (ADS)(AKT);UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 120843;October 19, 2011, then went the way so many cases do.  Plaintiffs and attorneys parted ways, second attorney came on board, and then left, and plaintiffs now proceed pro se.  They ask to amend the scheduling order.  They say that vital allegations and evidence were overlooked by their first attorney.  May they amend?

"On May 21, 2008, Plaintiffs Julie Lamothe and Justin Lamothe ("the Plaintiffs") commenced this action against the Town of Oyster Bay (the "Town"), the Town’s Department of Planning and Development, and several municipal employees (collectively the "municipal defendants"), as well as against individual Defendants Vincent Acquilino and Diane Aquilino, seeking damages associated with defects in a home purchased in 2005. Following this Court’s dismissal of all claims against the Aquilinos and certain claims against the municipal defendants, the only viable claims that remain against the municipal defendants are for deprivation of the Plaintiffs’ constitutional [*2] rights to equal protection of the laws and substantive due process, pursuant to 42 U.S.C. § 1983, and aiding and abetting those violations. Presently before the Court is the Plaintiffs’ motion to amend their complaint to assert: (1) certain additional facts that they claim their two prior counsels failed to present to the Court in the initial complaint; and (2) a number of new causes of action against the remaining Defendants, mainly grounded in fraud and negligence, that are related to the same underlying events as the initial complaint. For the reasons set forth below, the Court denies the Plaintiffs’ motion."

"The Defendants oppose the Plaintiffs’ motion to amend on the grounds that the amendment is futile; that the motion is untimely; that it will result in undue delay; and that it will cause the Defendants undue prejudice. At its core, the Defendants’ argument, as stated in their joint opposition to Plaintiffs’ motion to amend their complaint dated August 9, 2011, is that the Plaintiffs are utilizing Federal Rule of Civil Procedure 15 in an attempt "to start the case over" as pro se litigants. (Docket Entry No. 103.) With regard to whether an amendment would be futile, the Defendants contend that the proposed amendments merely seek to resurrect and add volume to claims that were dismissed by this Court more than two years ago. As to untimeliness, the Defendants maintain that the Plaintiffs have waited too long to move to amend. They point out that discovery in this matter closed on November 9, 2009, after two prior extensions by United States Magistrate A. Kathleen Tomlinson at the Plaintiffs’ request. In addition, the Defendants emphasize that the case is already at the summary judgment stage, as Rule 56.1 [*14] Statements have been exchanged.

With regard to undue prejudice, the Defendants assert that granting the Plaintiffs leave to amend their complaint would require that discovery be reopened, because the entire course of discovery was geared towards only the Section 1983 claims that remained after the early dismissal of the other causes. Finally, the Defendants claim that any additional discovery, along with the ensuing delay in the case that would result, would be unfair because the case is more than three years old and summary judgment procedures have already been initiated.

In response, the Plaintiffs note that the reason why these claims were not previously filed is because of the alleged inadequacies of their first counsel—against whom they now have a malpractice suit—and the similar alleged inadequacies of their successor counsel. The Plaintiffs do not speak directly to the potential unfair prejudice to the Defendants that may result from the amendment. Instead, the Plaintiffs emphasize in their response to the Defendants’ Opposition to amend the complaint dated August 15, 2011, that their purpose for filing this amended complaint is "to start this case over from the beginning" and [*15] "to correct what went miserably wrong." (Docket Entry No. 106.)"

In DUSHYANT KURUWA and MONICA ARGUELLES, Plaintiffs, -v.- MILTON L. MEYERS, Defendant.;09 Civ. 4412 (GWG);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ;2011 U.S. Dist. LEXIS 122466; October 21, 2011, we a most unusual case of successful pro-se litigants.  Even more so, the Court granted punitive damages agaisnt the attorney.  In the opening paragraphs, we may see the reason.
 

"On April 12, 2011, after the Court denied both parties’ motions for summary judgment, see Order, filed Mar. 2, 2011 (Docket # 40), the Court ordered the parties to submit a proposed joint pretrial order by May 6, 2011. Order, filed Apr. 12, 2011 (Docket # 43). The Court directed Meyers to supply his portion of the pre-trial order materials to plaintiffs by April 22, [*2] 2011. See id. ¶ 2. At Meyers’ request, this deadline was extended to April 27, 2011. Memorandum Order, filed Apr. 25, 2011 (Docket # 44). Meyers did not comply with this deadline but instead wrote a letter after the deadline seeking an extension sine die for medical reasons, which was granted. See Memorandum Order, filed May 6, 2011 (Docket # 47). By Order dated May 24, 2011, the Court gave Meyers an extension until June 15 to submit his pre trial order materials to plaintiffs. See Order, filed May 25, 2011 (Docket # 48). The Court extended this deadline to June 22. See Order, filed June 15, 2011 (Docket # 49). Meyers failed to meet this deadline, however, and has never asked that it be extended.

When the June 22 deadline was not met, the Court issued an Order to Show Cause directing Meyers to show cause why he should not be sanctioned for his failure to supply his portion of the joint pre-trial order materials. See Order, filed June 29, 2011 (Docket # 50). Not only did Meyers fail to provide a reason to the Court as to why he should not be sanctioned, he failed to respond to the Order to Show Cause at all. Accordingly, the Court issued an order finding Meyers in default as a sanction [*3] pursuant to Federal Rule of Civil Procedure 37(b)(2)(A)(vi). See Order, filed July 14, 2011 (Docket # 51)"

"Meyers is an attorney with an office in New York, NY. Compl. ¶ 4. Kuruwa is a citizen of India and his wife, Arguelles, is a citizen of Mexico. Id. ¶¶ 2,3. In August 2007, Kuruwa was hired "as a Project Engineer by the Turner Corporation." Id. ¶ 8. At the time he was hired, Kuruwa had an H1-B visa which authorized him to work in the United States. Id. ¶ 10. Kuruwa had obtained the H1-B visa in or around 1999 and it was set to expire on July 28, 2008. Id. ¶¶ 10-11. As the dependent of an H1-B visa recipient, Arguelles had an H-4 visa. Id. ¶ 17.

In September 2007, Kuruwa agreed that Meyers would process his visa paperwork to extend his stay past July 28, 2008. Id. ¶ 12. Meyers was aware that Kuruwa’s visa expired in 2008 and that he needed to act quickly. See Email from M. Meyers to R. Vigilante, dated Aug. 21, 2007 (annexed as Ex. 16 to Pl. Aff.). Kuruwa’s employer, Turner Corporation, agreed to sponsor Kuruwa for a green card application. Compl. ¶ 20. Meyers agreed to submit the green card application [*8] for Kuruwa. Id. ¶ 21. Meyers claimed to have filed the green card application, see id. ¶ 23; id. Ex. A, but in fact did not do so, id. ¶ 24. Nor did Meyers file for an extension of the H1-B visa before it expired. Id. ¶ 25. Kuruwa did not learn that his paperwork was not completed until March 7, 2009, when he was notified by the Department of Homeland Security that a petition to extend his B-2 status had been denied. Id. ¶ 26. Kuruwa also learned that someone, without his authorization, had filed a petition to change his status to "B1/B2 – business or tourist." Id. ¶ 27, 29.

Kuruwa and Arguelles departed from the United States in July 2009, though they later returned. The record on this motion does not explain how they returned or what their current immigration status is. The Court notes that they appeared at a court conference seeking to relieve their attorney on October 1, 2010."

"Meyers does not dispute the amount that Kuruwa asserts constitutes one-year’s salary at Turner Corporation.3 Instead, he argues that Kuruwa had a duty to mitigate his damages. Def. Aff. ¶ 4. Meyers is correct that under New York law a "harmed [*11] plaintiff must mitigate damages." Air Et Chaleur, S.A. v. Janeway, 757 F.2d 489, 494 (2d Cir. 1985) (citations omitted); accord Wilmot v. State, 32 N.Y.2d 164, 168 (1973) ("[T]he party seeking damages is under the duty to make a reasonable effort to avoid consequences of the act complained of.") (internal quotations and citations omitted). However, the burden is on the defendant to introduce "evidence to prove that plaintiffs could have lessened their damages." Air Et Chaleur, S.A., 757 F.2d at 494 (citation omitted). A defendant must show that the plaintiff failed to mitigate, and that reasonable efforts "would have reduced the damages." Tatar v. Elite Gold, Inc., 2002 WL 31682391, at * 2 (S.D.N.Y. Nov. 26, 2002) (citations omitted); accord Coastal Power Int’l Ltd. v. Transcont’l Capital Corp., 10 F. Supp. 2d 345, 370 (S.D.N.Y. 1998) (citations omitted).

FOOTNOTES

3 Kuruwa seeks $109,227 as one year’s salary. See Pl. Aff. at 9; Ex. 8A, 8B. While the total amount supported by the documentary evidence Kuruwa provides — including a promised bonus, a 15% locality adjustment, and a July 1, 2008 merit increase — would seem to support a slightly greater annual salary, we will accept Kuruwa’s figure.

Despite [*12] having the burden to show the failure to mitigate, Meyers has provided no evidence on this point. He merely states his own belief — the foundation of which is not revealed — that "while markets and construction were depressed here that apparently was not the case in India." Def. Aff. ¶ 4. This vague and unsupported statement is insufficient to show that Kuruwa failed to mitigate damages. Accordingly, Kuruwa is entitled to damages of $109,227, or one year’s salary, as Kuruwa requests. See Pl. Aff. at 9; Ex. 8A, 8B.

In addition, Meyers’ failure to inform plaintiffs that their visas had expired led them to incur costs in arranging for a voluntary departure from the United States. See Pl. Aff. at 13. In order to avoid being subject to a mandatory ten-year ineligibility period, see 8 U.S.C. § 1182(a)(9)(B)(i)(I), plaintiffs voluntarily departed the United States on July 18, 2009. Pl. Aff. at 13, Ex. 11D. As it was Meyers’ failure to file the necessary paperwork and inform plaintiffs of their illegal status that led to their voluntary departure, Kuruwa is entitled to the expenses related to arranging for and effectuating the voluntary departure, or $6,808. See Pl. Aff. 13; Ex. 11A-G."

"Punitive damages are available where the plaintiff demonstrates "conduct that was directed to the [*17] general public or that evinced the requisite ‘high degree of moral turpitude’ or ‘wanton dishonesty.’" Williams v. Coppola, 23 A.D.3d 1012, 1013 (4th Dep’t 2005) leave dismissed 7 N.Y.3d 741 (2006) (quoting Walker v. Sheldon, 10 N.Y.2d 401, 405 (1961)). The Court believes the standard of "wanton dishonesty" has been met in that it is alleged that Meyers was dishonest in asserting that he had filed a green card application on Kuruwa’s behalf. Accordingly, the Court in its discretion awards $25,000 in punitive damages to Kuruwa and $5,000 in punitive damages to Arguelles."
 

A post-matrimonial legal malpractice case has some elements of sadness.  From the court’s decision, desperation is apparent.  Wife has divorced, and four years later still is trying to get what she believes is justice.  Attorney seems to be caught in a cycle of client dissatisfaction and litigation.

What finally emerges as the reason for the decision is the settlement of the matter itself.  This analysis, while elemental, has emerged as a raison d’etra, that is, the settlement wording acts as a barrier to looking at whether the settlement was accurate and whether there were "side-deals,"  Hence, there is no investigation, and no look at the underlying circumstances.  This is another case in the Katebi line.

Castano v Richman; 2011 NY Slip Op 32686(U); October 11, 2011; Sup Ct, Nassau County
Docket Number: 007770/11 ; Judge: Jeffrey S. Brown.  "Plaintiff alleges that she entered into the settlement based upon representations and assurances by defendant that any errors or  missions in the stipulation would be separately dealt with later on by a "private agreement" with the attorney for the plaintiffs former husband. Plaintiff alleges that defendant failed to inform her that she had no recourse to obtain alleged necessar financial items not included in the stipulation of settlement upon allocution in open court. Plaintiff contends that she would never have entered into the  settlement if defendant had not promised her that she could later enter into a side agreement."

"While ‘ra) claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel’ (Bernstein Oppenheim Co. 160 AD2d 428 430 554 NYS2d 487 (1990)), here, the complaint is contradicted by the evidentiar material submitted on the motion to dismiss (see Guggenheimer Ginzburg, 43 NY2d 268 275 372 NE2d 17, 401 NYS2d 182 (1977)). (Katebi
v. Fink 51 AD3d 424.) The two separate allocutions by plaintiff on May 28, 2008 and May 30
2008 with respect to her underlying matrimonial action, constitute documentar evidence that
contradicts the allegation of legal malpractice. On each occasion during which plaintiff was
allocuted by the court, plaintiff indicated that she was satisfied with the settlement of the action;
that she was satisfied with the services of her attorney; that she understood the terms of the
settlement; that she knew she was giving up the right to a trial of the action; and that she was
entering into the stipulation by her own free will.

Plaintiffs claim that defendant told her what to say for the allocutions is without merit. It would be ineffective assistance of counsel if defendant hadn t advised plaintiff of the types of questions the court would ask her in the allocutions. Additionally, the recorded conversations between the parties is inadmissible evidence on this motion as plaintiff has failed to properly authenticate same by clear and convincing evidence that the tape is genuine and has not been tampered with (see generally, People v. Ely, 68 N. Y.2d 520). "

What happens when four people get together and decide to open a restaurant?  Often enough, they are friends, and  have only the highest regard for each other.  They trust each other, and have high expectations that each is ready to get going and get the business started.  It does not always work that way.  We see, in   Battaglia v Grillo ;2011 NY Slip Op 32691(U);October 11, 2011 ;Sup Ct, Nassau County ;Docket Number: 014807/2010 ;Judge: Ira B. Warshawsky, just how sour it might all go.

"Giovanni Battaglia ("Battaglia ), Nancy Piraino ("Nancy P. ), Massimo Grillo Grilo ), and Bartolomeo Piraino ("Bart P. ) embarked on a project of opening a restaurant to be known as The Cove Cafe, at 58-60 Landing Road, Glen Cove, NY. Drago was the builder they used to build-out the restaurant, and movant, defendant and third-party defendant, was the attorney who drafted the operating agreement for plaintiff Macabagi, LLC. He also represented Nancy Piraino in her acquisition of the real property in her own name, for which she obtained a $200 000 mortgage against the purchase price of $275 000. "

"The Second Amended Complaint includes a Second Cause of Action against Spadaccini in which Battaglia alleges that he retained Spadaccini to represent his interests in connection with the purchase of the real estate. He claims that he was advised by Spadaccini that each of the four individuals were to contribute $100 000 toward the purchase and development of the property, with each of them having a 25% interest in the real estate. Instead,. Spadaccini arranged for the property to be purchased in the name of Nancy P. only, with his contribution being used toward the purchase, and the property subjected to a mortgage, thereby diluting whatever interest he was to obtain in the property. Nancy P. subsequently executed a deed to Macabagi, LLC on April 6, 2010. As a consequence, Battaglia who has a 25% membership interest in Macabagi, is a 25% owner of the real estate, subject to a $200 000 mortgage. He claims that his investment is in jeopardy because Grilo and Bart P. , also each holding a 25% membership interest in the property, have not made their $100 000 contribution."

"Allegations with respect to alleged violations of the disciplinary rules cannot, standing alone, substantiate a claim for professional malpractice. (Pilard v, Goodman 82 A.D.3d 541 (1 Dept. 2011)). Where, however, the joint representation produces a circumstance in which counsel
is precluded from asserting a defense on behalf of one, because it would act to the detriment of the others, a finding of malpractice may follow. "

"Thus, it cap be seen, that an ostensible violation of the disciplinary rules, the [* 4] representation of parties with differing interests, led to the imposition of liability on an individual who had no role in the hiring or firing of the complaining former employee.. Such is not the case in this instance. The parties have a commonality in interest in acquiring title to a parcel of real property in the name of a limited liability company in which they each hold a 25% membership interest.  This is precisely what they now have, albeit subject to a $200 000 mortgage obtained by Nancy P. in conjunction with the purchase of the property in her own name. Since the parties seem no longer interested in proceeding to the final step of operating The Cove Cafe at the premises, the remedy which they ought be seeking is the dissolution of Macabagi , LLC and the distribution of the assets in accordance with the contributions made by the members. There is nothing more than speculation that those who have contributed to the purchase and renovation of the premises will not be made whole. Neither plaintiffs nor defendant and third-party plaintiff have yet to sustain actual or ascertainable damages, and certainly not because of the representation of all members of Macababi by Spadaccini. If the proposal to open a restaurant fails, it can be blamed on the lack
of funding; with some persons not even making their initial $100 000 contribution.
Battaglia claims that the premises are subject to a contract of sale for $375 000, and even
that is subject to obtaining a use variance. If title closes for that amount, the proceeds will not be
sufficient to satisfy the mortgage, which is in default, pay delinquent real estate taxes , and
reimburse him for his initial $100 000 investment. Nevertheless, unless and until that occurs
Battaglia has not sustained actual damages."

Attorney represents X and then later represents X’s opponent in litigation. Aside from the fact that the opponent is X’s mother, when does such representation cause a conflict and legal malpractice? We see in Benaquista v Burke ;2010 NY Slip Op 04896 ;Decided on June 10, 2010
Appellate Division, Third Department that there is no per se rule.
 

"Plaintiff and his mother co-owned two corporations and defendant represented the corporations in various matters. In December 2002, plaintiff was removed as an officer and director of one of the corporations. Shortly thereafter, his mother and the corporations commenced an action against him for, among other things, mismanagement and misappropriation [*2]of corporate funds. Defendant was the attorney of record for plaintiff’s mother and the corporations in that action. Plaintiff then commenced this action alleging, as pertinent here, that defendant committed legal malpractice. In the complaint, plaintiff alleged that he had previously sought legal advice from defendant concerning business issues between plaintiff and his mother and, in doing so, he had discussed confidential legal and personal matters with defendant. Plaintiff asserted that defendant then used such confidential information against him in commencing the action on behalf of his mother and the corporations, as a result of which he had suffered damages.

In order to recover for legal malpractice, plaintiff must demonstrate that defendant "’failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession’" (Bixby v Somerville, 62 AD3d 1137, 1139 [2009], quoting Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 301-304 [2001]) and that plaintiff was damaged as a result of such negligence (see Bixby v Somerville, 62 AD3d at 1139). Nonetheless, as the proponent of a motion for summary judgment, defendant had the initial burden of establishing his prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Defendant met this burden by proffering defendant’s sworn affidavit, alleging that his firm had represented plaintiff’s mother and the corporations prior to his representation of plaintiff — which consisted only of the incorporation of a business owned by plaintiff — and that no conflict of interest existed. In addition, defendant provided plaintiff’s bill of particulars and asserts that it fails to specifically identify any personal or confidential information used by defendant against plaintiff or any damages suffered by plaintiff [FN2]. Thus, the burden shifted to plaintiff to raise a question of fact requiring a trial (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).

Plaintiff’s only opposition to defendant’s cross motion was an attorney affirmation and various documents which, as relevant to this appeal, consisted primarily of billing records. Inasmuch as plaintiff failed to proffer any sworn allegations of an individual with personal knowledge of the relevant facts and the documents submitted were not in admissible form, his opposition was insufficient to sustain his burden of raising a triable issue of fact to defeat defendant’s entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d at 327; Zuckerman v City of New York, 49 NY2d at 562; Bixby v Somerville, 62 AD3d at 1139; Polyglycoat Ctr. of Conn. v Arace’s Ford, 126 AD2d 844, 845 [1987]). Accordingly, Supreme Court properly granted defendant’s cross motion for summary judgment dismissing the complaint. "
 

Justice Schack’s decision in Taveras v American Tr. Ins. Co.; 2011 NY Slip Op 51831(U) ; decided on October 17, 2011 ;Supreme Court, Kings County ; Schack, J. is an eye-opener.  Basically put, this was a three car accident in which American Transit had two of the cars.  Each of the cars had a $ 100,000 policy.  The entire case could have been settled within policy limits, yet American Transit failed to offer the policies.  The verdict, even after reduction by the Appellate Division was $2.25 million.
 

The decision is well worth reading, as Justice Schack has lovingly quoted from the deposition transcripts and from the trial transcript. The effect is devastating.

One interesting sidelight was the preclusion of expert reports by defendants based upon late production.  We wonder if a legal malpractice case will follow this bad faith case.

"The first time AT weighed the comparative risk to its insured AMIR was on April 26, 2006, after defendants had been precluded from offering the testimony of ELRAC’s experts. (Jay Ellenberg EBT, pp. 86 – 87). AT admitted that it did not have the information necessary to evaluate the relative financial risk to its insured and failed to do so. (Jay Ellenberg EBT, p. 165, p. 169). Mr. Ellenberg testified that based upon the relative exposure of AMIR and AT, AT failed to put itself on equal footing with their insured at the time the damages phase of the trial commenced. (Jay Ellenberg EBT, p. 230)."

"Therefore, based upon applicable case law and AT’s own admissions, AT is estopped from denying that AMIR is its insured. Defendant AT has absolutely no good faith basis to deny AMIR is its insured. It is perfectly clear that AT represented and defended AMIR for nine years. Even after becoming aware, in 2009, of STEED’s death, AT did nothing to disclaim coverage and on a number of occasions admitted that AMIR is its insured. Further, it is disingenuous for AT to claim that it did not know STEED was dead while it actively represented him and assigned defense counsel to him. This is yet another example of AT’s pattern of gross disregard for the interests of its insureds. Obviously, AT would have learned of STEED’s death if AT fulfilled its obligation to communicate with its insureds at any point during the pendency of the underlying action.

Further, defendant AT, in its instant cross-motion, in a deliberate attempt to deceive the Court and harm its insured, AMIR, takes the absurd position that only the $100,000 PLATFORM/SINGH policy existed and was available to TAVERAS’ claim. This is an outrageous mischaracterization of the actual facts and another failure to handle the truth. Defendant AT’s counsel manufactured for the instant cross-motion the fiction that AT’s $100,000 settlement offer during the damages portion of the underlying trial was actually an offer of the entire coverage available. This is false and cannot be countenanced by the Court. The actual record of the underlying trial makes it clear that at no time during the trial did AT ever disclaim coverage for AMIR or limit their settlement discussion to only the $100,000 PLATFORM/SINGH policy. Both AT’s Vice President and Treasurer Richard Carroll and AT’s Claims Examiner Rick Persaud, in their sworn depositions, admit that the $100,000 offer to settle the underlying action, which Mr. Sands, in ¶’s 3 (d) and 26 of his affirmation in support of cross-[*36]motion, asserts was only the $100,000 PLATFORM/ SINGH policy, was in reality an offer of $50,000 each from the STEED/AMIR and the PLATFORM/SINGH policies. (Rick Persaud EBT, pp. 116 – 117; Richard Carroll EBT, p. 162). Accordingly, the $100,000 offered was not the total amount of available coverage. AT offered half of each of the two available policies. This proved to be inadequate, in light of AT’s own evaluation of the risks to its insureds and the economic damages presented in excess of $1,500,000 on behalf of TAVERAS.Therefore, in the absence of triable issues of fact, the Court denies defendant AT’s cross-motion for summary judgment and dismissal of plaintiff’s complaint. "