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."
 

We often wonder whether legal malpractice cases are treated with a type of royal exasperation by judges.  Often the feeling in the air is that legal malpractice cases maybe should not be brought, or that its somewhat shameful to bring one, or that perhaps attorneys are due a little extra consideration.  We wonder if that’s what happened in Burbige v Siben & Ferber ;2011 NY Slip Op 07794 ; Decided on November 1, 2011 ; Appellate Division, Second Department. 
 

Did the judge just want to get this case over with? 

"The plaintiff commenced this legal malpractice action alleging, inter alia, that the defendants were negligent in failing to diligently prosecute a products liability action against the manufacturer of a ladder which broke while the plaintiff was descending it. After the conclusion of opening statements, the defendants’ counsel moved, in effect, pursuant to CPLR 4401 for judgment as a matter of law or, in the alternative, for an offer of proof. The trial court reserved decision. However, before the close of the plaintiff’s case, the court granted the defendants’ motion based upon the plaintiff’s failure to make an offer of proof that he would have been successful in the underlying products liability action by offering expert testimony that the ladder from which he fell was defective.

The trial court erred in granting that branch of the defendants’ motion which was, in effect, pursuant to CPLR 4401 for judgment as a matter of law, and dismissing the action before the plaintiff rested (see CPLR 4401; Greenbaum v Hershman, 31 AD3d 607; McGhee v New York City Hous. Auth., 243 AD2d 544; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d 196). A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable (see Cass v Broome County Coop. Ins. Co., 94 AD2d 822; see also Canteen v City of White Plains, 165 AD2d 856; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d at 197; Page v City of New York, 79 AD2d 573; Cetta v City of New [*2]York, 46 AD2d 762; Budner v Giunta, 16 AD2d 780; cf. Clifford v Sachem Cent. School Dist. at Holbrook, 271 AD2d 470, 470-471). Therefore, the judgment must be reversed and a new trial granted to the plaintiff. "

Plaintiff and a buddy go to attorney to start a business. Attorney is retained, and eventually Plaintiff is the odd-person out. Attorney’s retainer agreement names only the buddy, and even though attorney sends letters to both Plaintiff and buddy, and creates documents which plaintiff and buddy sign, it is Buddy who comes out with 75% of the business. Is there a breach of fiduciary duty, and if so, what is the statute of limitations, 3 years or 6?

Some answers are found in Schlissel v Subramanian ;2009 NY Slip Op 52188(U) ; Decided on October 26, 2009 ; Supreme Court, Kings County ; Demarest, J. As to Breach of Fiduciary Duty:
 

""In order to establish a breach of fiduciary duty, a plaintiff must prove the existence of a fiduciary relationship, misconduct by the defendant, and damages that were directly caused by the defendant’s misconduct" (Kurtzman v Bergstol, 40 AD3d 588, 590 [2d Dept 2007]).

"An attorney stands in a fiduciary relation to the client" (Graubard Mollen Dannett & Horowitz v Moskovitz, 86 NY2d 112, 118 [1995]). As a fiduciary, an attorney "is charged with a high degree of undivided loyalty to his [or her] client" (Matter of Kelly v Greason, 23 NY2d 368, 375 [1968]). "In this case, plaintiff alleges that Van Epps was her attorney, that he unilaterally advanced Wasan’s interests over those of plaintiff, that he prepared certain corporate documents for the purpose of diluting and diminishing plaintiff’s interest in T & T, and that he concealed material information from plaintiff concerning the adverse contents of these documents (Stark Affirmation in support of the Cross Motion, Ex. 2, Proposed Amended Complaint, ¶¶ 46-47). In opposition, Van Epps contends that he was not plaintiff’s attorney and that, in any event, his representation of her had ended by the time she signed the corporate documents.

There is no set of rigid rules that must be followed to form an attorney-client relationship (see McLenithan v McLenithan, 273 AD2d 757, 758 [3d Dept 2000]). It may exist without an explicit retainer agreement or payment of fee (see Tropp v Lumer, 23 AD3d 550, 551 [2d Dept 2005]). "Rather, to establish an attorney-client relationship there must be an explicit undertaking to perform a specific task. In determining the existence of an attorney-client relationship, a court must look to the actions of the parties to ascertain the existence of such a relationship," (id., at 551 [internal quotation marks and citations omitted]) [*8]bearing in mind that plaintiff’s unilateral belief does not confer upon her the status of defendant’s client (see Volpe v Canfield, 237 AD2d 282, 283 [2d Dept 1997], lv denied 90 NY2d 802 [1997]). "

"Ultimately, the evidence as to the alleged existence of an attorney-client relationship between plaintiff and defendant Van Epps is inconclusive, depends on a fact-finder’s [*11]assessment of the parties’ credibility, and thus is outside the scope of the court’s review on a motion to dismiss. Assuming the truth of her affidavits, plaintiff sufficiently alleges that Van Epps represented conflicting interests at the time plaintiff signed the corporate documents (see Shumsky, 96 NY2d at 168). Plaintiff thus adequately alleges the first element of her breach of fiduciary duty claim — the existence of a fiduciary relationship. Furthermore, having alleged misconduct by defendant by his alleged simultaneous representation of adverse interests, and damages directly caused by his misconduct (Proposed Amended Complaint, ¶¶ 47-50), plaintiff adequately pleads the other two elements of her claim. Defendant’s motion seeking dismissal of the breach of a fiduciary duty cause of action pursuant to CPLR 3211(a) (7) is denied. Defendant’s motion pursuant to CPLR 3211 (a) (1) is also denied inasmuch as defendant’s affidavit and the documents attached thereto do not definitively and "conclusively establish[ ] a defense to the asserted action as a matter of law" (Leon, 84 NY2d at 88); the documentary evidence merely raises numerous issues of fact, rather than finally dispose of them (see Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 435 [1st Dept 1990]). "

"Defendant contends that plaintiff’s claims against him are in the nature of professional malpractice and, therefore, are barred by the three-year statute of limitations of CPLR 214 (6), which is applicable to legal malpractice actions. Defendant asserts that by formulating her proposed amended complaint using language such as fraud and breach of fiduciary duty, plaintiff is attempting to circumvent the three-year limitations period applicable to legal malpractice claims pursuant to CPLR 214 (6) regardless of whether the underlying theory is based in contract or tort. However, as discussed, plaintiff adequately pleads a distinct cause of action for fraud against Van Epps which goes beyond ordinary malpractice (see Simcuski v Saeli, 44 NY2d 442, 453 [1978][finding that an independent cause of action for fraud against a professional may be established when exposure to liability "is not based on errors of professional judgment, but is predicated on proof of the commission of an intentional tort, in this instance, fraud"]; see also Mitschele v Schultz, 36 AD3d 249 [1st Dept 2006]). Defendant’s malpractice argument fails, as the gravamen of plaintiff’s suit is fraud. The motion to dismiss the action is therefore denied. "
 

In Hirsch v Fink ; 2011 NY Slip Op 07699 ; Decided on November 1, 2011 ; Appellate Division, First Department  we see an unusual situation.  Attorney-client sues his own attorney after an attorney-based litigation for legal malpractice.  In this particular case plaintiff-attorney loses on res judicata and subsequent attorney grounds.
 

Subsequent attorney grounds

"As defendant did not represent plaintiff in the underlying accounting action at the time the conditional order of preclusion was issued or in the next 30 days, during which plaintiff was to provide outstanding discovery, he was not responsible for plaintiff’s answer being stricken (see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P.C., 82 AD3d 652 [2011]). Contrary to plaintiff’s contention, his attorney-client relationship with defendant did not continue indefinitely simply because it was not terminated in writing (see Leffler v Mills, 285 AD2d 774, 776-777 [2001]). The record contains no "indicia of an ongoing, continuous, developing and dependent relationship" between plaintiff and defendant (see Muller v Sturman, 79 AD2d 482, 485 [1981]), particularly where plaintiff engaged another lawyer. Nor could defendant have moved timely, i.e., within 30 days, to reargue the order to permit plaintiff to disregard overly broad discovery requests (see CPLR 2221). "

Res judicata grounds

"To prevail in this legal malpractice action, plaintiff would have to show that but for defendant’s negligence he would have obtained a better result in the underlying accounting action (Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [2007]). To make that showing, plaintiff would have to litigate the issues of which cases belonged to the alleged partnership between himself and the underlying plaintiff and the fees to which he was entitled. However, those issues were raised and decided against plaintiff in the underlying action (Frankel v Hirsch, 38 AD3d 712 [2007]), where he had a full and fair opportunity to litigate them, and he is precluded by the
doctrine of collateral estoppel from re-litigating them in this action (see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). "
 

Sometimes its obvious what responsibilities the attorney will take on in a new representation. If it’s a motor vehicle accident, then the attorney is hired to prosecute the personal injury action, up to and including trial. Here, in Hallman v Kantor ;2010 NY Slip Op 03280 ;Decided on April 20, 2010 ;Appellate Division, Second Department the attorneys took on a more limited role.
 

From the decision: "The defendants submitted a retainer agreement reflecting that the plaintiff "understood, accepted and agreed" that the "scope of" their "engagement" was "to represent" her as a co-executor of her deceased father’s estate. This documentary evidence conclusively established a defense to the plaintiff’s claims of malpractice. The plaintiff alleged that she was the subject of a pending lawsuit, in effect, to recover sums of money due under certain notes she executed before her father died, and that the defendants committed legal malpractice by, inter alia, failing to speak with her "about the circumstances surrounding [her] signing of [those] notes," and failing to "question[ ]" their "validity." However, the documentary evidence demonstrated that the plaintiff’s individual liability on the notes was a matter outside of the scope of the defendants’ representation of the plaintiff in her capacity as co-executor of the estate (see CPLR 3211[a][1]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). [*2]"
 

Legal malpractice cases arise when there has been some departure from good and accepted practice, and a negative result follows.  What happens if a party waits too long to file for some relief?  Generally speaking, they will be precluded, and some attorney will tell the client that there has been a departure.  In Simon v Usher ; 2011 NY Slip Op 07305 ; Decided on October 20, 2011
Court of Appeals ; Jones, J. we see one such potential case.
 

"The question presented for our review is whether the five-day extension under CPLR 2103(b)(2) applies to the 15-day time period prescribed by CPLR 511(b) to move for change of venue when a defendant serves its demand for change of venue by mail. We hold that it does.

On July 17, 2009, plaintiffs Allen and Barbara Simon commenced this medical [*2]malpractice action against defendants in Supreme Court, Bronx County. Defendants Sol M. Usher, Sol M. Usher, M.D., Maxwell M. Chait, White Plains Hospital Center and Hartsdale Medical Group, P.C., (collectively, the Usher defendants) served their verified answers and demands to change venue to Westchester County on August 20, 2009. Twenty days later, on September 9th, the Usher defendants moved to change venue to Westchester County on the grounds that, except for Usher and Usher, M.D., P.C., all of the defendants and the plaintiffs reside in Westchester County; Usher’s and Usher, M.D., P.C.’s primary offices are in Westchester County; and plaintiff Allen Simon received the medical care at issue in Westchester County. The remaining defendants Sheldon Alter, Mid-Westchester Medical Associates, LLP, Westchester Medical Group, P.C. and Marianne Monahan served their answer on September 3rd and filed an affirmation in support of the motion to change venue on September 15th.

Supreme Court granted the motion to change venue to Westchester because "none of the parties to this action reside in Bronx County." The Appellate Division unanimously reversed and denied the motion. The court, among other things, rejected the Usher defendants’ motion for a change of venue as untimely because it was made 20 days after service of the demand. It concluded that CPLR 2103(b)(2)’s five-day extension for time periods measured from service by mail did not apply to CPLR 511. The Appellate Division granted the Usher defendants leave to appeal to this Court and certified the following question for review: "Was the order of this court, which reversed the order of the Supreme Court, properly made?" We answer the certified question in the negative and now reverse.

When construing a statute, we must begin with the language of the statute and "give effect to its plain meaning" (Kramer v Phoenix Life Ins. Co., 15 NY3d 539, 552 [2010]). Pursuant to CPLR 511(a), a defendant shall serve with the answer, or prior to service of the answer, a demand "for change of place of trial on the ground that the county designated for that purpose is not a proper county." Subsection (b) permits defendant to "move to change the place of trial within fifteen days after service of the demand, unless within five days after such service plaintiff serves a written consent to change the place of trial to that specified by the defendant." CPLR 2103 provides "where a period of time prescribed by law is measured from the service of a paper and service is by mail, five days shall be added to the prescribed period." "The extension provided in CPLR 2103(b)(2) constitutes legislative recognition of and compensation for delays inherent in mail delivery" (Sultana v Nassau Hosp., 188 AD2d 627 [2d Dept 1992]). "

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."