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. "

Cases rarely are dismissed by the Court for reasons that have absolutely nothing to do with the merits, almost never sua sponte.  Here is an exception.  This plaintiff was enjoined from bringing any further litigation in either State or Federal court for anything to do with his former apartment.  Nevertheless…

RAFFAELE M. PANDOZY, Ph.D., Plaintiff, – against – DAVID A. GABAY, Defendant.;10 Civ. 3473 (PGG);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2011 U.S. Dist. LEXIS 112303;September 29, 2011, Decided ;September 30, 2011, Filed
 

"Pandozy has been enjoined from "commencing, without prior leave of court, any further federal court actions relating in any way (1) to the sale of his apartment; (2) to the numerous lawsuits concerning the sale of his apartment; or (3) to the individuals and attorneys who were involved in that transaction."1 Pandozy v. Tobey, No. 06 Civ. 12885(CM)(THK), 2007 U.S. Dist. LEXIS 97901, 2007 WL 2815627, at *1 (S.D.N.Y. Sept. 24, 2007); see also Pandozy v. Segan, 518 F. Supp. 2d 550, 558 (S.D.N.Y. 2007) (enjoining Pandozy "from commencing, without prior leave of the Court, any federal action in this Court relating in any way to (1) the sale of the [*2] Pandozy’s cooperative apartment at 280 Lafayette Street, New York, New York (the ‘Apartment’) to Brock Wylan, (2) litigation related to the sale of the Apartment or the events surrounding that sale, or (3) the conduct in that transaction by individuals and attorneys involved in the litigation arising from such sale"). Gabay moves to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Because this Court concludes that Pandozy’s complaint falls under the court’s previous injunction against filing such suits without leave, Pandozy’s complaint will be dismissed sua sponte and Gabay’s motion to dismiss will be denied as moot."

"The lawsuits [*3] concerning the sale of Pandozy’s apartment began when he placed his New York apartment up for sale and signed a contract with a buyer. (Am. Cmplt. ¶ 7) Pandozy claimed that the sale was never approved by the cooperative board, and attempted to cancel the contract. (Id.) The buyer sued Pandozy in state court and was awarded specific performance. See Wylan v. Pandozy, No. 600211/04 (N.Y. Sup. Ct. July 27, 2004).

A series of lawsuits followed. Pandozy sued the cooperative and its general counsel, alleging intentional interference with contractual relations and breach of fiduciary duty; that case was dismissed on April 4, 2006. Pandozy v. Lafayette Studios, Index No. 600495/05 (N.Y. Sup. Ct. April 4, 2006). The buyer’s attorney, Lawrence Segan, then brought a successful action for libel against Pandozy in Segan v. Pandozy, Index No. 104238/05 (N.Y. Sup. Ct. Feb. 21, 2006). Pandozy also filed a federal action challenging the specific performance judgment and alleging fraud upon the court, Pandozy v. Segan, No. 06 CV 7153(VM) (S.D.N.Y. filed Sept. 18, 2006), which was dismissed on September 28, 2007. Pandozy then filed the action Pandozy v. Tobey, No. 06 Civ. 12885(CM) (S.D.N.Y. filed Nov. 2, 2006) [*4] , against the cooperative board, alleging conspiracy to harass him and oust him from the Apartment, malicious and frivolous prosecution, and discrimination on the basis of financial status; that action was dismissed on September 25, 2007. Finally, in Pandozy v. Robert J. Gumenick, P.C., No. 07 Civ. 1242(NRB) (S.D.N.Y. filed Feb. 16, 2007), Pandozy asserted claims against five attorneys who represented him in various stages of his litigations, charging them with fraud, legal malpractice, breach of contract, and deceptive practices; this action was dismissed on May 23, 2008.

Gabay represented Pandozy in connection with two of these lawsuits — an appeal from the libel judgment in Segan v. Pandozy, Index No. 104238/05 (N.Y. Sup. Ct.), and the malpractice action against Pandozy’s former attorneys in Pandozy v. Robert J. Gumenick, P.C., No. 07 Civ. 1242(NRB) (S.D.N.Y.). It is clear that both of these actions fall under the broad injunctions issued on September 24, 2007, Tobey, 2007 U.S. Dist. LEXIS 97901, 2007 WL 2815627, at *1, and September 27, 2007, Segan, 518 F. Supp. 2d at 558. The injunctions apply to actions that relate "in any way" to the sale of Pandozy’s apartment, lawsuits concerning the sale of the [*5] apartment, or the attorneys involved. The libel action was brought by the buyer’s attorney, and Pandozy’s libelous statement was made in a letter he sent to the cooperative’s shareholders that discussed his pending appeals from the specific performance suit and asked the shareholders to submit affidavits to the judge in that action. (Am. Cmplt. Ex. 19) Clearly, the libel action — and the subsequent appeal from it — "relat[e] . . . (1) to the sale of [Pandozy’s] apartment; (2) to the numerous lawsuits concerning the sale of his apartment; [and] (3) to the individuals and attorneys who were involved in that transaction." Tobey, 2007 U.S. Dist. LEXIS 97901, 2007 WL 2815627, at *1.

Similarly, Gabay’s representation of Pandozy in the legal malpractice action against five of Pandozy’s former attorneys falls squarely within the injunctions. The defendants in that action — Robert Gumenick, Victor Worms, Gary Adelman, Jeffrey Roth, and Sherwood Salvan — represented Pandozy in his previous suits stemming from the sale of his apartment: Gumenick was hired in connection with the specific performance action; both Worms and Adelman represented Pandozy at various points in the specific performance action; Roth represented Pandozy [*6] in the libel suit and the breach of fiduciary duty suit brought against the cooperative; and Salvan was hired to initiate a lawsuit for malpractice against Gumenick. (Am. Cmplt. ¶ 25) Accordingly, Pandozy’s malpractice action against these defendants for their alleged deficiencies in his prior cases involving the apartment "relat[es] . . . to the numerous lawsuits concerning the sale of his apartment . . . [and] to the . . attorneys who were involved in that transaction." Tobey, 2007 U.S. Dist. LEXIS 97901, 2007 WL 2815627, at *1."
 

Plaintiff-.Attorney in this RICO action sues other attorneys who have brought legal malpractice cases, some against him.  Plaintiff was at one time a major player in the plaintiff’s legal malpractice world.  Now, in W. ROBERT CURTIS, Sc.D., J.D, CURTIS & ASSOCIATES, P.C., Plaintiffs-Appellants, – v – THE LAW OFFICES OF DAVID M. BUSHMAN, ESQ., DAVID M. BUSHMAN, Attorney at Law, JANET CALLAGHAN, EILEEN DEGREGORIO, STEVI BROOKS NICHOLS, JEFFREY LEVITT, ESQ., Attorney at Law, HERBERT MONTE LEVY, ESQ., LAW OFFICES OF HERBERT MONTE LEVY, ESQ., JOHN DOE, ESQ., LAW OFFICES OF JOHN DOE, ESQ., JANE DOE, ESQ., LAW OFFICES OF JANE DOE, ESQ  the end of years of litigation appears.

"Plaintiffs-Appellants Curtis & Associates, P.C. and W. Robert Curtis (collectively "Curtis") appeal from a December 17, 2010 judgment of the United States District Court for the Eastern District of New York (Matsumoto, J.) dismissing with prejudice their complaint alleging civil violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), [*2] 18 U.S.C. §§ 1961-1968, denying leave to amend, denying motions to disqualify counsel, and denying sanctions against Curtis. Curtis alleges, in essence, that various of his former clients and those clients’ current counsel committed violations of RICO by bringing "counterfeit" malpractice claims and disputing fees earned by Curtis in his former representation of these clients."

"Curtis and defendants have been involved in numerous state court proceedings stretching back for many years. Curtis alleges that the underlying state court lawsuits between Curtis and defendants were part of the interconnected "schemes" of Defendants-Appellees the Law Offices of David M. Bushman, Esq., David M. Bushman, Attorney at Law, and David M. Bushman, Esq. (collectively "Bushman") "to Defraud Curtis" and "to Obtain Money," 1 J.A. 2377, and that Bushman recruited and controlled Defendants-Appellees Jeffrey Levitt, Esq. and Jeffrey Levitt, Attorney at Law (collectively "Levitt"); Herbert Monte Levy, Esq. and Law Offices of Herbert Monte Levy, Esq. (collectively "Levy"); and Stevi Brooks Nichols ("Nichols") to execute his schemes. Curtis further alleges that in the course of those suits, defendants made, submitted, or suborned the submission to the courts of [*6] various false and misleading statements or evidence. He alleges as predicate acts of mail and wire fraud the transmission of court filings and other case-related communications in the underlying state court lawsuits.
"The alleged "schemes" require the coordination of the defendants: three counsel (Bushman, Levy, and Levitt) and three former Curtis clients (Defendants-Appellees Nichols, Janet Turansky Callaghan ("Turansky"), and Eileen DeGregorio). Levy is conclusorily alleged to have learned of Bushman’s schemes and become Bushman’s "surrogate" and "puppet" in representing DeGregorio and continuing the schemes. J.A. [*8] 2396, 2402. Curtis alleges that Levitt was recruited by and is "under the control of Bushman," id. at 2412, and "upon information and belief," Bushman continued to assist Levitt in "seamlessly implement[ing] the fraudulent schemes devised by Bushman," id. at 2411. With respect to the various clients, Curtis alleges, again "upon information and belief," that Bushman counseled Turansky that she could avoid paying fees owed to Curtis if she terminated Curtis for cause and that Bushman would represent her for "a nominal fee." Id. at 2406. Nichols, who is pro se, is alleged on "information and belief" to have been counseled behind the scenes by Bushman. Id. at 2384, 2415. There is a noted dearth of allegations suggesting that the clients were aware or joined in any sort of fraudulent scheme beyond their own individual cases. As these highlighted allegations indicate, the fraudulent "schemes" boil down to little more than speculative and conclusory allegations that the various defendants and others worked together under Bushman’s direction. There are no facts alleged to support these implausible allegations of an overarching scheme or schemes, nor is a common intent properly pleaded. Because [*9] Curtis has failed to plead a fraudulent scheme with the requisite particularity, we need not reach the issues of additional pleading deficiencies raised by defendants."

is it legal malpractice for an attorney to answer a information subpoena concerning his retainer agreement with a client if the answer does not contain privileged communications?  We will not know the answer to this question from GREGORY P. MORSON, Plaintiff, -against KREINDLER & KREINDLER, LLP, Defendant.09 CV 2994 (DRH)(ARL)UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK, 2011 U.S. Dist. LEXIS 112310;September 28, 2011, Decided because plaintiff waited too long to bring the action.
 

"Plaintiff’s claims arise out of events that occurred during defendant’s legal [*2] representation of plaintiff (or "Morson") and his sister, Vanessa Morson, (collectively, the "Morsons"), who served as the co-administrators of their mother’s estate. The subject representation involved a 1996 case brought in this District alleging wrongful death against the Libyan government for its involvement in the 1988 bombing of Pan American Airlines flight 103 over Lockerbie, Scotland (the "Lockerbie action").2 See Morson v. The Socialist People’s Libyan Arab Jamahirya, No. 96 CV 2077 (TCP) (E.D.N.Y). In October 2002, a conditional settlement agreement was reached between the parties in that action that relied on the occurrence of three "triggering events," the details of which are not relevant for present purposes. (Statement of Undisputed Material Facts, pursuant to Local Civil Rule 56.1 ("56.1 Stmt.") ¶¶ 20-21.) Kreinder & Kreindler LLP represented many of the victims’ families in the Lockerbie action. (Rule 56.1 Statement ¶ 11.)

Prior to this conditional settlement, on December 26, 2001, judgment was entered against Morson for approximately $1.7 million in a separate lawsuit in the Southern District of New York. (56.1 Stmt. ¶¶ 24, 27); See Palazzetti Import/Export, Inc. v. [*3] Morson, No. 98 CV 722 (FM) (S.D.N.Y.)(the "Palazzetti action"). The judgment was later affirmed on appeal at some point in 2002. (56.1 Stmt. ¶ 28.) Kreindler & Kreindler LLP did not represent Morson in that action.

In late 2002, Morson and one Sergio Palazzetti began direct settlement negotiations without the aid of counsel regarding payment of the Palazzetti judgment. (56.1 Stmt. ¶ 34.) During these talks, Palazzetti indicated that he "would be amenable to settle for $500,000 in cash," as a lump sum, (Deposition of Sergio Palazzetti ("Palazzetti Dep.") at 58-69, D’s Ex. I), though no final agreement was entered into by the two men at that time. (See Deposition of Gregory Morson ("Morson Dep.") at 46-47, D’s Ex. G; see also Palazzetti Dep. at 51 ("The only thing I remember is that when we actually sort of agreed on the 500,000 number.").)

Around that same time, Palazzetti discussed with his attorney, Debra J. Guzov, what Palazzetti had learned primarily through the news media, viz., that Morson was involved in the Lockerbie action, that settlement talks were underway between the parties, and that Morson was potentially entitled to a large payout in that case. (56.1 Stmt. ¶¶ 22, 30; Palazzetti [*4] Dep. at 34-36.) Guzov then served Kreindler & Kreindler LLP with a "Restraining Notice," pursuant to N.Y. CPLR 5222, requesting that the firm complete an attached questionnaire concerning Morson’s current and potential assets. On January 15, 2003, James P. Kreindler ("Kreindler") completed the questionnaire and returned it to Guzov. (Pl’s Ex. 4.) In his response, Kreindler provided the following statement relevant to this suit: "We filed suit arising from the death of Eva I. Morson against Libya in 1996. We have a written settlement agreement which goes into effect when Libya complies with the United Nations requirements. Settlement not less than $5 million nor more than $10 million." (Pl.’s Ex. 5.)

Meanwhile, Palazzetti had informed his "trial counsel," Michael Regan (who had a lien on any judgment in the Palazzetti action), that he had discussed settling the Palazzetti action with Morson for $500,000. According to Palazzetti’s testimony, Regan informed him that he learned from Guzov that the Lockerbie action "would be resolved positively for the Morsons very soon," and that he should not settle for less than the judgment. (Palazzetti Dep. at 58) Shortly thereafter, Palazzetti communicated [*5] to Morson that he would no longer settle the judgment for $500,000. Palazzetti testified that he changed his position because he "was told that [he] could get the whole amount in a fairly short time." (Palazzetti Dep. at 9, 64.)

The Morson’s eventually recovered $10 million from the Lockerbie action (56.1 Stmt. ¶ 32; D’s Ex. L.), and Palazzetti collected the entire amount of his judgment from Morson, (Pl.’s Ex. 7)."
 

"As to the date of accrual of the malpractice claims, New York looks to the date in which the malpractice was committed, while Illinois and Massachusetts consider the date in which the plaintiff discovers his or her injury arising out of such misconduct. McCoy v. Feinman, 99 N.Y.2d 295, 301, 785 N.E.2d 714, 755 N.Y.S.2d 693 (2002) (A claim accrues "when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court." (citing Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 644 N.E.2d 1009, 620 N.Y.S.2d 318 (1994))); Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 750 N.E.2d 67, 726 N.Y.S.2d 365 (2001) (citing Glamm v. Allen, 57 N.Y.2d 87, 95, 439 N.E.2d 390, 453 N.Y.S.2d 674 (1982)("What is important is when the malpractice [*17] was committed, not when the client discovered it.")); Hester v. Diaz, 346 Ill. App. 3d 550, 553, 805 N.E.2d 255, 281 Ill. Dec. 887 (Ill. App. Ct. 5th Dist. 2004)("In Illinois, the statute of limitations for legal malpractice is two years ‘from the time the person bringing the action knew or reasonably should have known of the injury for which damages are sought.’" (citing 735 Ill. Compiled Statutes 5/13-214.3(b))); Lyons v. Nutt, 436 Mass. 244, 247, 763 N.E.2d 1065 (Mass. 2002)("The statute of limitations applicable to a legal malpractice claim begins to run when a client ‘knows or reasonably should know that he or she has sustained appreciable harm as a result of the lawyer’s conduct.’" (citing Williams v. Ely, 423 Mass. 467, 473, 668 N.E.2d 799 (1996))). Here, the purported malpractice was committed by defendant, and the resulting injury was discovered by plaintiff in or around January 15-22, 2003. See discussion supra. Plaintiff’s malpractice claims therefore accrued under the law of all three states during that period."
 

When practitioners in Legal Malpractice stay in the area long enough, older cases they handled come back to save or haunt them. A prime example isDeNatale v Santangelo ; 2009 NY Slip Op 06398 ;; Appellate Division, Second Department . Here the defendant law firm wins dismissal based upon a now well known case. In that case, defendant attorney lost the motion and the appeal, here, based on the same law, defendant attorney wins.
 

The case in common is Barnett v Schwartz ;2007 NY Slip Op 09712 [47 AD3d 197] . Important language there: "The elements to be proved in a legal malpractice action have been subjected to various formulations. Thus, while it is clear that a plaintiff-client must prove negligence (i.e., that the defendant-attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by members of the legal community), some cases hold that the negligence must be "the" proximate cause of damages (Britt v Legal Aid Socy., 95 NY2d 443, 446 [2000]; see e.g. Kleeman v Rheingold, 81 NY2d 270 [1993]; Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407 [2007]; Cohen v Wallace & Minchenberg, 39 AD3d 691 [2007]; Cummings v Donovan, 36 AD3d 648 [2007]; Kotzian v McCarthy, 36 AD3d 863 [2007]), while others hold that it must be "a" proximate cause of damages (Bauza v Livington, 40 AD3d 791, 793 [2007]; see e.g. Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725 [2006]; Terio v Spodek, 25 AD3d 781 [2006]; Pistilli v Gandin, 10 AD3d 353 [2004]). There are also cases from this Court requiring the damages to be a "direct result" of the negligence (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 409 [2007]; Kotzian v McCarthy, 36 AD3d 863 [2007]; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725 [2006]). In the main, the cases from the Court of Appeals, including the most recent, do not expressly require that the negligence be either "the" or "a" proximate cause of damages, but require proof that, "but for" the negligence of the defendant-attorney, the plaintiff-client would have prevailed in the underlying action (in a classic lawsuit-within-a-lawsuit scenario) or would not have incurred damages (in an action alleging negligent advice, etc.) (see e.g. Leder v Spiegel, 9 NY3d 836 [2007]; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428 [2007]; Davis v Klein, 88 NY2d 1008 [1996]; Carmel v Lunney, 70 NY2d 169 [1987]). The defendants here, while not expressly describing the difference between proximate and "but for" causation, argue that the latter requires a greater, more direct degree of causation. However, we find no substantive{**47 AD3d at 204} import to the variations in the formulations discussed above, and hold that a plaintiff-client in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages. "

"Moreover, our reading of the case law does not reveal that a heightened standard for causation is actually being applied in legal malpractice cases. Rather, all results can be explained by application of general principles of proximate cause.""In sum, regardless of the formulation employed, a plaintiff in a legal malpractice action need prove only that the defendant-attorney’s negligence was a proximate cause of damages. "