On occasion, a story makes one stop and wonder how it could have happened.  In Heller v Goldberg, Scudieri & Lindenberg, P.C.; 2011 NY Slip Op 32930(U); November 2, 2011;Sup Ct, NY County;Docket Number: 105061/11;Judge: Eileen A. Rakower we see not the first, but rather, the second transgression by a partner in a well known law firm.  How did the law firm let him stay on?

Justice Rakower writes:  "The malpractice allegedly began in 1997 when Block lied and  told plaintiffs that he had filed two claims against their landlord, that he had made several court appearances on plaintiffs’ behalf, and secured default judgments in the total amount of $675,000. In 1999 Block lied to plaintiffs again and told them that he was filing a lien against the landlord’s property in order to secure the two judgments.

Also in 1999, Block negotiated a buy-out of plaintiffs’ rent-stabilized apartment by the landlord for $60,000, from which the Firm was paid a fee of $10,000. As part of the settlement, plaintiffs allege that Block induced them to execute a general release in favor of the landlord by convincing them that the release would not have any bearing on their ability to collect on the fictitious default
judgments. In 2005 Block represented to plaintiffs that the landlord’s building had sold for
$3,500,000, and that a judge had directed the funds to be place in an escrow account by the New York City Department of Finance (LLD OF”I)n. 2006 Block conveyed to plaintiffs that he had  persuaded” the City Department of Finance to transfer the funds into a separate account, but that he could only disburse small amounts per month to them until the money was released.

The monthly stipends were paid out of the Firm’s escrow account. In the meantime, Block told plaintiffs that their judgment was now valued at over $14,200,000 due to penalties imposed by the judge on the DOF. In or around 2008 Block claimed that he secured a default judgment against the DOF in the amount of $5,000,000.  Block continued to make ever increasing payments to plaintiffs out of the firm’s escrow funds until September 28, 2010. On November 9, 2010 Block told
plaintiffs that they could expect a $7,000,000 disbursement the following day. When plaintiffs called the office to inquire further, Defendant Alan J. Goldberg answered and told plaintiffs that Block had been suspended from the practice of law and that the Firm had no active cases on file for them.

Defendants now move to dismiss the claims against them pursuant to CPLR 321 l(a)(l), CPLR321 l(a)(7)and CPLR3016(b). Plaintiffs oppose the motion.Block does not submit papers. In support of their motion, defendants submit: their affidavits; two printouts from the N Y S Department of State Division of Corporations; a copy of the complaint; a list of checks disbursed from the Firm’s escrow account; and a copy of a Grand Jury indictment. Defendants contend that the individual members of the PC cannot be held liable for Block’s malpractice because plaintiff cannot show that they participated in, or had knowledge of Block’s misconduct. Defendants claim that the “Adverse Interest Exception” bars the malpractice claim against the Firm. Plaintiffs, in opposition, claim that defendants had direct supervision and control over Block, and were active participants themselves in Blocks wrongdoing. Plaintiffs argue that defendants affirmatively undertook the duty to supervise Block after his 2001 disciplinary hearing. At that hearing, Block was suspended for six
months from the practice of law for deliberately deceiving another husband and wife “through lies and fabrication of documents to corroborate those lies, and by neglecting the clients’ affairs . . . [and making] false assurances to his client as to the status of their case when, in fact, the matter was never commenced , . .”(Matter of Block, 282 AD2d 12[ 1 st Dept. 200 11). Plaintiffs allege that the partners knew of the . . suspension. Indeed, Goldberg represented Block at the hearing."

The case continues, motion to dismiss legal malpractice denied.

Plaintiff law firm wants to collect $ 58,000 in fees, and Defendant Client believes that the law firm abandoned her during a divorce, took her escrow monies to pay fees, and caused her to spend $ 250,000 to get another attorney up to speed. The case has been before Justice James, in Supreme Court, New York County, then to the AD, and now back to her.  Here is her take on the matters in Bender Burrows & Rosenthal, LLP v Simon ; 2011 NY Slip Op 32923(U);November 4, 2011; Sup Ct, NY County;Docket Number: 100358/06 ;Judge: Debra A. James:  "The Law Firm commenced the instant action to recover legal fees in the amount of $58,900.36, arising from its representation of Simon during her underlying matrimonial action, entitled Simon v Simon (Sup Ct, NY County, Index No.: 303306/2001). The complaint asserts three causes of action: breach of contract (first), account stated (second), and quantum meruit (third). Simon interposed an Answer, asserting two counterclaims: legal malpractice (first) and the return of escrow funds alleged
to have been improperly appropriated by the Law Firm (second). The Law Firm subsequently moved to dismiss the counterclaims, and Simon cross-moved for partial summary judgment on its second counterclaim. After this court denied the parties’ respective applications in its order dated July 2, 2007 (the Prior Order), the parties appealed the Prior Order. The Appellate Division modified the Prior Order, only to the extent of granting that branch of the Law Firm’s motion dismissing Simon’s firat counterclaim for legal malpractice (Bender Burrows & Rosenthal, LLP v Simon, 65 AD3d 499 [lst Dept 20091 [the AD Decision]). Simon’s subsequent motion for clarification of the AD Decision, or alternatively leave to appeal, was denied in its entirety on March 9, 2010. Simon then served an Amended Answer, dated May 2 5 , 2010, which asserts, inter alia, five counterclaims: return of the purportedly diverted escrow funds (first); \refund of legal fees
paid to [the Law Firm]" (second)  ; "refund of overcharges for fees fee paid to [the Law Firm]" (third & fourth); and violation of Judiciary Law § 487 (fifth). The Law Firm now moves to di’smiss the second through fifth counterclaims asserted in the Amended Answer. "

"The third Counterclaim purportedly states a fee overcharge claim, seeking a refund of the legal  funds paid to the Law Firm. It alleges that the Law Firm overcharged and collected excessive
and unreasonable fees, by, inter alia, "not assigning the matter and specific tasks to the most competent and efficient staff/counsel,,, "spending excessive and redundant time on tasks,"
"utilizing three attorneys who appeared at trial ," and ‘failing to properly prepare for trial." A party may bring a claim to recover legal fees already paid to his or her attorney on the grounds that the fees were excessive (see Boslia v Green berq, 63 AD3d 973 [2nd Dept 2005] ) , and such claim is not considered duplicative of a legal malpractice claim (&; see also Loria v Cerniqlia, 69 AD3d 583 [2d Dept 20101). Therefore, contrary to the Law Firm’s argument, the mere fact that the third
counterclaim is based upon similar conduct raised in the legal malpractice action does not warrant its dismissal. Thus, Simon shall be granted leave to amend the answer to include the third
counterclaim for a legal fee overcharge and the court shall deny dismissal of the counterclaim."

Clients often feel that attorneys are less than trustworthy, and never more often than in the company-executive situation where the company believes that the lawyers are in cahoots with the executive.  Here, in FLYCELL, INC.,  -against- SCHLOSSBERG LLC and MICHAEL T. O’NEIL, Defendants.;No. 11-CV-0915-CM;UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK ;2011 U.S. Dist. LEXIS 126024; October 28, 2011,we see a stunning example.  From the decision:

"Plaintiff, a Delaware corporation with its principal place of business in New York, is a digital media company that primarily offers digital content — such as ringtones, graphics, and games (Compl. ¶ 9) — to the public through internet advertising (id. ¶ 18). Plaintiff can either place the advertising itself, or hire a third party to do so pursuant to an agency agreement. (Id.)

Schlossberg is a limited liability company engaged in the practice of law with five members. Schlossberg is organized and has its principal place of business in Massachusetts, and its five members are citizens of Massachusetts. (Id. ¶ 12.) O’Neil is a member of [*3] Schlossberg, and was the attorney primarily responsible for Plaintiff’s business; Plaintiff was one of Schlossberg’s clients. (Id. ¶ 13.) Schlossberg and O’Neil served as Plaintiff’s general outside counsel since 2005. (Id. ¶ 2.) Beginning at an undetermined time, but no later than 2009, Defendants also represented Flycell’s now-former CEO, Alberto Montesi ("Montesi").

The Court notes that Flycell has separately resolved its claims against Montesi and his network of companies. See Flycell Inc. v. Alberto Montesi and Smart Ads, LLC, No. 10 Civ. 6500 (CM) (THK) (S.D.N.Y.) (the "Smart Ads Action"). In this action, Montesi was ordered by Magistrate Judge Theodore H. Katz to produce communications with the Defendants pursuant to the crime-fraud exception to the attorney-client privilege. Smart Ads Action, Mot. to Compel Hearing Tr., 35:13-14 (Dec. 1, 2010). Magistrate Judge Katz stated at a hearing on December 1, 2010, "There’s no question in my mind that there have been specific facts that have been advanced that lead me to conclude that there’s probable cause to believe that establishing these companies and the business they were supposed to carry on was in furtherance of a crime or fraud." [*4] Id. at 33: 17-22.

B. The Glispa Kickback Scheme

In 2006, Montesi, Glispa LLC ("Glispa"), a company that places advertising on the internet for third parties (id. ¶ 10), and Matrix Management Group, LLC ("Matrix"), a company controlled by a friend of Montesi (id. ¶ 20), entered into a kickbacks scheme. (Id. ¶¶ 6, 22.) Under their arrangement, Glispa, through Gary Lin ("Lin"), its founder and president (id. ¶ 6), paid bribes to Montesi in exchange for Montesi awarding Glispa "lucrative agency agreements" with Flycell. (Id. ¶ 19-20.) These bribes were funneled through Matrix, which held the funds for Montesi’s benefit, and took a cut in exchange (Id. ¶ 22, 83) pursuant to a pair of "consulting agreements executed between the parties in 2006 and 2008 (Id. ¶ 23). Montesi was to receive between 20%-30% of the revenue Glispa received from placing ads with Plaintiff. (Id.)

Defendants Schlossberg and O’Neil came into the story when Glispa and Montesi entered into a third consulting Agreement in 2009, cutting out Matrix, the middleman (the "Consulting Agreement"). (Id.) In this agreement, Montesi agreed to perform "consulting services" for Glispa. (Id. ¶ 31.) In fact, Glispa simply paid Montesi [*5] for directing Flycell’s business its way. On May 29, 2009, Lin, on behalf of Glispa, purported to request that Montesi "provide documentation of [Flycell] board approval" of the Consulting Agreement to "make the illegal payments from Glispa to [Montesi] appear legitimate." (Id. ¶ 32.) Montesi replied, "You must be joking," (id.) and turned to Defendants for advice.

On June 1, 2009, Montesi approached O’Neil to represent him personally and provide advice with respect to this third consulting agreement between Glispa and Montesi. (Id. ¶ 31.) Defendants accepted the engagement without disclosure to or consent from Plaintiff. (Id. ¶ 31, 35.) On the same day, Montesi sent a copy of the Consulting Agreement to Defendants for review. (Id. ¶ 31.) At the time, Defendants were aware that Glispa had pre-existing contracts with Flycell, because O’Neil had reviewed those agreements as Flycell’s counsel in 2006 and March 2009. (Id. ¶ 25, 31.)

O’Neil reviewed the Consulting Agreement, and wrote to Montesi on June 2, 2009, stating that the "Only thing that concerns me here is that they are requiring you to get Flycell Board approval." (Id. ¶ 33.) O’Neil then allegedly revised the agreement so that it [*6] reflected a "false representation" from Montesi that Montesi had obtained board approval, rather than requiring actual board documentation. (Id. ¶ 34.) The parties entered into the agreement on August 1, 2009. (Id. ¶ 83.)

In total, Plaintiff paid Glispa over $3.8 million pursuant to these fraudulent agreements. (Id. ¶ 28.) Plaintiff estimates that Montesi received over $500,000 in kickbacks pursuant to these first two agreements, and $237,000 for the third. (Id. ¶ 23) All services that Glispa purported to perform for Plaintiff could have been performed by Plaintiff in-house. (Id. ¶ 29.) Defendants’ actions also hurt Flycell by allowing the scheme to continue through the Consulting Agreement. (Id. ¶ 35.)"

""A claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of breach." Lerner v. Fleet Bank, N.A.., 459 F.3d 273, 294 (2d Cir. 2006) (quoting Kaufman v. Cohen, 307 A.D.2d 113, 125, 760 N.Y.S.2d 157 (N.Y. App. Div. 2003)).

Plaintiff must allege that Defendants had actual knowledge of the breach of duty, not mere constructive knowledge. Kaufman, 307 A.D.2d at 125; Brasseur v. Speranza, 21 A.D.3d 297, 299, 800 N.Y.S.2d 669, 671 (N.Y. App. Div. 2005) ("bare allegations that the agent "knew or should have known" of numerous instances of the [primary] breach of fiduciary duty was insufficient to satisfy this element"). Additionally, Plaintiff must allege that Defendants provided "substantial assistance" to Montesi, the primary violator. Id. at 126. "Substantial assistance occurs when a defendant affirmatively assists, helps conceal or fails to act when required [*22] to do so, thereby enabling the breach to occur" or, if a defendant owes a fiduciary duty to the plaintiff, inaction of an alleged aider and abettor constitutes substantial assistance. Id.

As to the first element, the parties do not contest that the Complaint adequately alleges that Montesi breached his fiduciary obligations to Plaintiff. (Compl. ¶¶ 94, 99; Mot. to Dismiss at 19.)

Defendants vigorously contest the second element, however. Defendants claim that Plaintiff does not sufficiently allege that Defendants substantially assisted Montesi’s breach of fiduciary duty (Mot. to Dismiss at 19-20), and that Plaintiff fails to plead "actual knowledge" (Reply at 6-8). I disagree. Reading the "complaint generously, drawing all reasonable inferences" in Plaintiff’s favor, Lee, 557 F. Supp. 2d at 423, Plaintiff does allege that Defendants were "aware of [Montesi’s] fiduciary duties to [Plaintiff]" (Compl. ¶ 96), and yet provided Montesi with substantial assistance in breaching his fiduciary duties (id. ¶ 98).

First, Plaintiff alleges that "O’Neil knew that the companies [Defendants] set up for [Montesi] were being used to defraud [Plaintiff]," yet still prepared documents to conceal Montesi’s [*23] ownership of Smart Ads. (Compl. ¶¶ 47-49.) While the emails referred to may be far from damning, it is a reasonable inference that Defendants knew that Montesi created the Entities to usurp business opportunities that he should have secured or reserved for Plaintiff, and knowingly helped Montesi conceal this fact by hiding his ownership. (Id. ¶ 47-48.)

Plaintiff also alleges that Defendants had actual knowledge that the Consulting Agreement between Montesi and Glispa was illegal, yet persisted in helping Montesi keep the arrangement hidden from Plaintiff by inserting a false representation into the agreement. (Compl. ¶¶ 33-35.) In light of O’Neil’s email stating that he was concerned that Plaintiff’s Board would have to approve the Consulting Agreement, it is a reasonable inference that O’Neil had actual knowledge that Montesi’s arrangement with Glispa was a breach of Montesi’s duty to Plaintiff. (Id. ¶ 33.)

In addition, Plaintiff adequately alleges that Defendants had actual knowledge that Montesi’s activities with the Entities conflicted with his duties as Plaintiff’s CEO because Defendants knew that Montesi’s employment contract with Plaintiff required Montesi to devote substantially [*24] all of his time to Plaintiff’s business. (Compl. ¶ 46.) Plaintiff further alleges that Defendants still assisted Montesi in "carrying out [the Entities’] fraudulent purpose" (Compl. ¶¶ 51-52) in contravention of Montesi’s duties to Plaintiff.

Thus, Plaintiff adequately alleges Defendants’ actual knowledge of Montesi’s breach of fiduciary duty.

During the housing run-up there was a frenzied buy-and-sell atmosphere.  Buyers were looking to maximize a purchase with an eye to a large profit.  Not all transactions went well, and as always, when commercial transactions fail, there will have been representation by attorneys, and later claims of attorney malpractice.

Here, in Humbert v Allen ;2011 NY Slip Op 08125 ; Decided on November 9, 2011 ; Appellate Division, Second Department  we see the situation in which buyer deposits downpayment and then applies for a mortgage.Events go down-hill from there.  When they are sued by seller, who wants to retain the downpayment, they third-party their own attorney.

"The defendants third-party plaintiffs, Allison E. Allen and Robert T. Allen (hereinafter together the Allens), entered into a contract to purchase a condominium unit from the plaintiff for a total purchase price of $475,000. Upon signing the contract, the Allens deposited a down payment in the sum of $47,500 into an escrow account managed by the Allens’ lawyer, the defendant Luigi Rosabianca, and his law firm, the third-party defendant Rosabianca & Associates, PLLC (hereinafter together the appellants). The contract of sale contained a mortgage contingency clause that entitled the Allens to a refund of their down payment if they could not secure a commitment for a mortgage loan in the amount of $427,500, after making a good faith and diligent attempt to obtain such a commitment. The Allens proceeded to apply for a mortgage loan in a far greater amount, intending to purchase another condominium unit in addition to the unit owned by the plaintiff. Although the Allens received a "counteroffer" commitment from a bank for a loan in the amount of $846,000, they instructed the appellants to cancel the contract of sale with the plaintiff in accordance with the mortgage contingency clause.

The plaintiff subsequently commenced this action against the Allens and Rosabianca, alleging breach of contract and seeking to receive and retain the down payment as liquidated damages. In her complaint, the plaintiff alleged, inter alia, that the Allens had violated the terms of the mortgage contingency clause and forfeited their down payment by failing to make a diligent application for a mortgage loan in the amount of $427,500. The Allens asserted, inter alia, a cross claim against Rosabianca and a third-party cause of action against Rosabianca & Associates, PLLC, alleging legal malpractice.

The plaintiff and the Allens ultimately entered into a settlement agreement pursuant to which each of them received a portion of the down payment. By stipulation, the plaintiff discontinued her claims against the Allens and Rosabianca. The Allens, however, maintained the aforementioned cross claim and third-party cause of action against the appellants, alleging that they were negligent in failing to tender written notice of cancellation to the plaintiff in accordance with the terms of the contract of sale, that this negligence was a proximate cause of the Allens’ damages, and thus, that the appellants were liable for the portion of the down payment that the Allens forfeited to the plaintiff. "
 

"Here, the Allens did not meet their prima facie burden of establishing their entitlement to judgment as a matter of law on the cross claim and the third-party cause of action alleging legal malpractice insofar as asserted against the appellants. They failed to demonstrate that the appellants’ alleged malpractice (the failure to tender written notice of cancellation of the contract of sale) was a proximate cause of their damages (see Bells v Foster, 83 AD3d 876, 877; compare Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511). The Allens did not establish, prima facie, that they would have been entitled to the return of their down payment, but for this alleged malpractice (see Kluczka v Lecci, 63 AD3d 796, 797). As the record indicates, and the Allens do not dispute, they applied for a mortgage loan in an amount far greater than that which was specified under the express terms of the mortgage contingency clause, and they received a "counteroffer" commitment from a lender for a loan in an amount almost double that which they needed to secure pursuant to the terms of the contract of sale. Under these circumstances, the Allens did not have grounds to cancel the contract of sale pursuant to the terms of the mortgage contingency clause (see Post v Mengoni, 198 AD2d 487; Silva v Celella, 153 AD2d 847, 848). Thus, regardless of any malpractice on the part of the appellants in allegedly failing to tender written notice of cancellation, the Allens independently breached the contract of sale and forfeited their down payment to the plaintiff as liquidated damages (see Post v Mengoni, 198 AD2d 487; Silva v Celella, 153 AD2d at 848). "

Macaluso v Pollack , 2010 NYSlipOp 30276(U) , Justice Diamond, Nassau County, presents an interesting story of how a case can get dismissed. Beyond the storyline, the case presents analysis of liability of predecessor/subsequent attorneys, how the dissolution of a partnership affects legal malpractice litigation, what subsequent attorneys can accomplish in the Second Circuit, and potential liability of associate attorneys.

The original attorneys were to represent plaintiff in an employment discrimination case, but negligently failed to follow court orders in US District Court. Eventually, the case was dismissed by the US District Judge, on one particular day in which the attorneys did not appear for a conference. This was apparently the last straw, as there had been many previous late filings, etc. So case is dismissed. Attorneys for plaintiff at that point were a partnership of two attorneys. These attorneys then file an appeal to the Second Circuit, but leave out several essential filings which dooms the appeal.

Plaintiff hires set two of attorneys, who try to fix the appeal, but fail. The appeal is dismissed by the Second Circuit. This firm consists of attorneys and an associate attorney who are sued. Who is at fault? . In the end, first attorneys remain in the case, second attorneys are out, and the associate is out, too.

"On or about September 25 , 2007, the plaintiff then retained defendant Jason R. Corrado, P. C.
and Jason R. Corrado, Esq. (refereed to hereafter collective as Corrado). Plaintiff met with Corrado
at his law office in mid October, 2007. He advised her that the appeal that Pollack failed was defective because she failed to fie Forms C and D. On January 7 2008 she signed another retainer agreement with Corrado. The plaintiff retained Corrado to seek to restore the appeal to the  appellate calendar, reversal of the dismissal of the Federal discrimination case from the trial calendar and restoration to the trial calendar. Plaintiff asserts she paid a retainer of$5 000.00 and neither Corrado nor Rizzuto took any legal action with regard to the appeal. Plaintiff alleges that due to the legal malpractice of defendants law firm, Pollack, Kotler, Corrado and Rizzuto, she suffered the loss of right to litigate and would have prevailed in her underlying sexual harassment and  employment  discrimination case. Moreover she asserts each defendant breached the respective duty owed to her resulting in damages."

"The Corrado defendants argue that the dismissal of the discrimination action was caused solely by the action of defendant Pollack. Corrado asserts a motion to vacate had already been made
and a second motion could not be made while an appeal was already pending. Corrado contends that only where an aggrieved client can establish the presence of "extraordinary circumstances" would there be a chance of prevailing on the appeal and Judge Spatt had expressly ruled that "extraordinary circumstances" were not present.  The two dismissals of plaintiffs lawsuit (at district court and at the appellate level) were the result of the actions of plaintiff s initial counsel, co-defendant Pollack. For almost two years, plaintiff and her prior counsel, co-defendant Pollack failed to provide court-ordered discovery and even failed to appear at court-ordered conferences. Judge Wall, in his lengthy 48 page order concluded that co-defendant Pollack’ s behavior was "undeniably negligent." . Plaintiff appealed Judge Wall’ s order to Judge Spatt who adopted Judge Wall’ s order and reiterated that defendant Pollack was negligent. In so holding, Judge Spatt used language such as "numerous late filings persistent failures  ‘counsel’ s negligence , " irrational and bizarre claims" and "reckless manner Appeals were taken by co-defendant Pollack and once again, co-defendant Pollack failed to file the appropriate forms. The appeal was dismissed. (See Exhibit " , motion-in-chief). In July 2007, plaintiff appealed the Order of Dismissal to the United States Court of Appeals for the Second Circuit by notice filed by Pollack. However, Pollack failed to fie Forms C and D that were required to be filed with the appeal. In October 2007, the Second Circuit issued an order to show cause which provided that the appeal would be dismissed for failing to file Forms C and D. Corrado, who was retained by plaintiff after her case had been dismissed, to try and undo the harm caused by Pollack. The Second Circuit denied the application and as such Corrado was unable to reverse the dismissal of the action caused by Pollack’ s actions. "

Quantum Meruit Claims: Is Interest Mandatory or Discretionary? by Joseph H. Einstein and Jonathan Gardner provides a well written analysis of whether pre-judgment interest is available to attorneys who prevail in a quantum meruit claim for fees.  The cases are all over the board, with differences between the Appellate Divisions and even within each individual Appellate Division.

From the article : "Quantum meruit claims are based on a hybrid of law and equity. There is no express contract between the parties, but one is implied because of the course of dealings between them. The cases are in conflict as to whether interest is mandatory or discretionary and the Court of Appeals has yet to weigh in on the issue. In this era, where cases may be pending for years, substantial dollars are at stake."
 

"Not only is there no consistent jurisprudence resolving this issue to be found in either the state or federal courts, but different panels within the same department have reached different conclusions. Thus, in Ogletree, Deakins, Nash, Smoak & Stewart P.C. v. Albany Steel Inc.,3 the plaintiff law firm sued to recover fees, alleging breach of contract, quantum meruit, and account stated. The causes of action based on contract and account stated were dismissed, but a recovery was obtained on the quantum meruit claim. On the issue of interest, the Third Department stated:

Turning to the issue of interest, we reject defendant’s categorization that plaintiff’s claim is "equitable" and, therefore, any award of interest was discretionary (see, CPLR 5001[a]). Plaintiff’s quantum meruit action is essentially an action at law, inasmuch as it seeks money damages in the nature of a breach of contract, "notwithstanding that the rationale underlying such causes of action is fairness and equitable principles in a general rather than legal, sense" (Hudson View II Assocs. v. Gooden, 222 A.D.2d 163, 168, 644 N.Y.S.2d 512). Thus, Supreme Court correctly determined that it was required to award interest (see, CPLR 5001[a]).

Notwithstanding, seven years later in Precision Foundations v. Ives,4 the plaintiff obtained a recovery in quantum meruit for certain work performed on the defendant’s premises. On the issue of interest, without mentioning its prior decision in Ogletree, Deakins, the Third Department stated:

Turning to the Supreme Court’s award of preverdict interest to plaintiff, we note that such awards are discretionary for a quantum meruit claim (see CPLR 5001[a]). Here, as already indicated, plaintiff waited almost four years after having rendered its services to bring this litigation. Under the particular circumstances herein, we do not find a sufficient basis for a discretionary award of preverdict interest on plaintiff’s quantum meruit claim and, accordingly, reverse that award.

No explanation is offered as to why or how the "required" award in the first instance became "discretionary" in the second.

First Department cases also are at odds. In Ash & Miller v. Freedman,5 the court held that "an award of interest would be mandated in an action by an attorney to recover under a retainer agreement or in quantum meruit for the reasonable value of legal services rendered." However, in Hugh O’Kane Elec. Co., LLC v. Master North America Inc.,6 in affirming an award of interest, the court stated: "This is an action for breach of contract and not, as defendant asserts, an action sounding in quantum meruit." This clearly implies that interest on a quantum meruit claim should not be awarded as a matter of right. And in Leroy Callender, P.C. v. Fieldman,7 the court awarded prejudgment interest on a quantum meruit claim from the date payment was demanded, noting that "we find that plaintiff has established its entitlement" thereto, again suggesting a discretionary, not mandatory, approach."
 

One aspect of legal malpractice litigation is the failure to follow developments in the law. Rules change and not keeping up with the changes leads to mistakes, criticism and, later, litigation. The rules for non-party discovery have undergone some changes over the years, and today’s decision is worth reading.

In Kooper v Kooper ; 2010 NY Slip Op 04147 ;Decided on May 11, 2010 ;Appellate Division, Second Department ;Angiolillo, J., J. the Court lays out an arc of procedure for non-party discovery. Prior to 1984 a motion was required. The rule was amended and then in 2002 the rule was amended again to allow for subpoenas instead of motions when seeking documents from a non-party. Now the rule again changes:
 

"Subsequent to Dioguardi, many of our cases involving nonparty discovery continued to hold that "special circumstances" must be shown (see e.g. Katz v Katz, 55 AD3d 680, 683; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725, 726; Attinello v DeFilippis, 22 AD3d 514, 515; Tannenbaum v Tenenbaum, 8 AD3d 360; Lanzello v Lakritz, 287 AD2d 601; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d 482, 483; Tsachalis v City of Mount Vernon, 262 AD2d 399, 401; Mikinberg v Bronsther, 256 AD2d 501, 502; Matter of Validation Review Assoc. [Berkun- Schimel], 237 AD2d at 615; Wurtzel v Wurtzel, 227 AD2d 548, 549), while many of our most recent cases have avoided the "special circumstances" rubric (see e.g. Cespedes v Kraja, 70 AD3d 622; Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 843-844; Tenore v Tenore, 45 AD3d 571, 571-572; Smith v Moore, 31 AD3d 628, 629; Matter of Lutz v Goldstone, 31 AD3d 449, 450-451; Thorson v New York City Tr. Auth., 305 AD2d 666). In light of its elimination from CPLR 3101(a)(4), we disapprove further application of the "special circumstances" standard in our cases, except with respect to the limited area in which it remains in the statutory language, i.e., with regard to certain discovery from expert witnesses (see CPLR 3101[d][1][iii]). On a motion to quash a subpoena duces tecum or for a protective order, in assessing whether the circumstances or reasons for a particular demand warrant discovery from a nonparty, those circumstances and reasons need not be shown to be "special circumstances."

Whether or not our cases have applied the "special circumstances" standard, however, they contain underlying considerations which the courts may appropriately weigh in determining whether discovery from a nonparty is warranted. We look, then, to the reasoning in our cases to find guidance with respect to the circumstances and reasons which we have considered relevant to the inquiry with respect to discovery from a nonparty. Since Dioguardi, this Court has deemed a party’s inability to obtain the requested disclosure from his or her adversary or from independent sources to be a significant factor in determining the propriety of discovery from a nonparty. A motion to quash is, thus, properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty (see Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d at 726; Tannenbaum v Tenenbaum, 8 AD3d at 360; Lanzello v Lakritz, 287 AD2d at 601; Tsachalis v City of Mount Vernon, 262 AD2d at 401; Matter of Validation Review Assoc. [Berkun-Schimel], 237 AD2d at 615), and properly denied when the party has shown that the evidence cannot be obtained from other sources (see Cespedes v Kraja, 70 AD3d at 722; Tenore v Tenore, 45 AD3d at 571-572; Thorson v New York City Tr. Auth., 305 AD2d at 666; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d at 483). Our cases have not exclusively relied on this consideration, however, and have weighed other circumstances which may be relevant in the context of the particular case in determining [*6]whether discovery from a nonparty is warranted (see Abbadessa v Sprint, 291 AD2d 363 [conflict in statements between the plaintiff and nonparty witness]; Mikinberg v Bronsther, 256 AD2d at 502 [unexplained discontinuance of the action against the witness, formerly a party]; Patterson v St. Francis Ctr. at Knolls, 249 AD2d 457 [previous inconsistencies in the nonparty’s statements]).

We decline, here, to set forth a comprehensive list of circumstances or reasons which would be deemed sufficient to warrant discovery from a nonparty in every case. Circumstances necessarily vary from case to case.

A criminal defendant is convicted and takes an appeal.  He loses.  Criminal defendant makes a CPL 440 motion.  He loses.  Now he finds out that no one seems to have his grand jury indictment.  Is that grounds for a successful appeal?  We don’t know, but in Lee v Pierre
2011 NY Slip Op 32911(U); November 1, 2011; Supreme Court, New York County;Docket Number: 403536/10; Judge: Anil C. Singh was faced with this question, and a motion to dismiss.

Was this a breach of contract or legal malpractice?   Here, the attorney filed an appeal, while the correct act was to file a motion seeking leave to appeal.  The outcome was negative.  Is this grounds for a legal malpractice case?  Justice Singh said no.

"“A cause of action to recover damages for legal malpractice requires proof of three elements: (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant’s negligence, the plaintiff would have been successful in the underlying  action” (Cummings v, Donovan, 36 A.D.3d 648, 643 [2d Dept 20071). “Furthermore, to state a cause of action for legal malpractice arising from negligent misrepresentation in a criminal proceeding, the plaintiff must allege his or her innocence or a colorable claim of  innocence of the underlying offense” (u)(se e also Ben-zvi v, Kronish Lieb Weiner & Hellman LLP, 278 A.D.2d 167 [lStD ep’t 20001; Daly v. Peace, 54 A.D.3d 801 {2d Dep’t 20081; Boomer v. Gross, 34 A.D.3d 1096 [3d Dep’t 20061). After careful consideration, the Court finds that the documents exhibited by defendant are sufficient to make out a prima facie case in favor of defendant. The Court finds further that plaintiffs conclusory, self-serving affidavit is insufficient to establish the existence of any genuine issue of material fact or otherwise rebut defendant’s prima facie case."