in legal malpractice, the judgment rule holds that an attorney may not be held liable for choices of strategy whether they turn out successful or not.  These choices may be in the selection of witnesses, in the selection of experts, in the choice of questions to ask witnesses, and, as we see in this criminal law case, in the choice of consessions made at trial. 

 Baston v. US, 10 CV 4344 (HB), NYLJ 1202514447306, at *1 (SDNY, NY, Decided September 8, 2011) ;District Judge Harold Baer;  Decided: September 8, 2011
"Pro se petitioner, Wilson J. Baston ("Petitioner"), brings this petition for a writ of habeas corpus to vacate, set aside, or correct his federal criminal sentence pursuant to 28 U.S.C. §2255. Petitioner is currently serving 17 concurrent prison terms of 135 months, after having pled guilty to multiple counts of mail and wire fraud. Petitioner has also requested an evidentiary hearing. For the reasons set forth below, the petition and request for an evidentiary hearing are denied."

"On March 5, 2008, Petitioner pled guilty pursuant to a plea agreement that contained a Stipulated Sentencing Guidelines Range of 87 to 108 months and indicated that the loss amount would be at least $7 million but less than $20 million, with the specific amount to be calculated prior to sentencing. These ranges were calculated based on data known to the U.S. Probation Department at the time. Additional victims continued to make themselves known to the Government and the loss amount grew. Before the sentencing hearing, the Probation "

In Petitioner’s sentencing memorandum, Petitioner’s attorney, Matthew Kluger ("Kluger"), acknowledged that the Final PSR’s calculation was a more accurate reflection of the actual loss attributable to Petitioner’s conduct, but requested that Petitioner be sentenced to serve 87 months — the minimum number of months specified in the plea agreement — or less. The Government’s sentencing memorandum noted the discrepancy between the recommendations in the Final PSR and the plea agreement, and requested a sentence of 108 months in order to comport with both. The Court also received a number of written victim impact statements prior to sentencing. The parties made the same arguments at the sentencing hearing as they did in their written submissions. I reminded the parties that the Court is not bound by the plea agreement and, after hearing testimony from several victims, I announced a sentence of 135 months and a final restitution order of $22,396,633.57.

Petitioner appealed, arguing that his sentence should be vacated on grounds that the Government breached the plea agreement, that his counsel provided constitutionally ineffective assistance, and that the restitution order was improper. See United States v. Baston, 355 F. App’x 530, 531-32 (2d Cir. 2009). The Second Circuit Court of Appeals affirmed the judgment below. Id. at 533. The Court of Appeals found that Petitioner forfeited his claim that the Government breached the plea agreement by having failed to raise it at the appropriate time. Id. at 533. It also found no plain error which would make the restitution order improper. Id. at 532. The Court of Appeals dismissed Petitioner’s claim for ineffective assistance of counsel without prejudice, on the grounds that the Supreme Court has stated a preference for resolving such claims in a habeas petition, id. (citing Massaro v. United States, 538 U.S. 500, 504 (2003)), and consequently that ground is asserted by Petitioner here.

On June 2, 2010, Petitioner brought this habeas corpus petition under 28 U.S.C. §2255. Petitioner alleges two grounds for relief. First, he claims to have received ineffective assistance of counsel at trial because his trial counsel (a) breached the plea agreement by conceding at sentencing that the loss and restitution amounts were accurate and (b) failed to investigate andcorrect errors in the loss and restitution amounts. Second, Petitioner claims that the calculation of the restitution order and loss amount were inaccurate."

"Courts have denied ineffective assistance claims in situations, where counsel conceded certain evidence at trial, because it was a strategic decision to make the concession. See id. at 699 (holding counsel’s decision not to present or investigate certain evidence was strategic and virtually unchallengeable); United States v. Gaskin, 364 F.3d 438, 468 (holding counsel’s stipulation to defendant’s signature on trial exhibits was a strategic choice and decisions to stipulate to evidence are strategic as a rule); United States v. Berkovich, 168 F.3d 64, 67-68 (2d Cir. 1999) (holding counsel’s decision to enter into a global stipulation was part of a "reasonable trial strategy").

Kluger’s concession of the loss amount, with which Petitioner takes issue, was a strategic choice, made to avoid the risk of an even higher loss amount and perhaps an even higher sentence."
 

In this non-legal but professional  malpractice case, the question of which state law applies is answered decisively.  Rose v Arthur J. Gallagher & Co. ; 2011 NY Slip Op 06374 ; Decided on August 30, 2011 ; Appellate Division, Second Department concerns negligent quoting of premiums in an insurance transaction.  The parties debated a "contact" analysis for choice of law questions.  The Court looked at it differently:
 

"The three causes of action in question sound in tort and, thus, contrary to the parties’ contentions, the conflict-of-laws standard that applies in contract-based actions (see Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 317-319) does not apply here. Since the laws alleged to be in conflict—including those regarding the availability of punitive damages, an important purpose of which is deterrence (see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 489) — are of a conduct-regulating nature, the law of the place of the tort applies (see Padula v Lilarn Props. Corp., 84 NY2d 519; Cooney v Osgood Mach., 81 NY2d 66, 72; Schultz v Boy Scouts of Am., 65 NY2d 189, 198; Shaw v Carolina Coach, 82 AD3d 98, 101). In this case, the allegedly negligent quote was requested by the plaintiffs, and provided by the defendants, through e-mail communications that were sent from and received in New York. Thus, the tortious conduct alleged in the amended complaint is governed by New York law. Since the parties charted a procedural course in which the viability of the three causes of action in question depends upon whether they are governed by Louisiana law, the [*2]Supreme Court properly awarded the defendants summary judgment dismissing those causes of action. "
 

When are limited NY contacts enough to allow an attorney from New Jersey to be sued in New York?  The question is easy to answer in the abstract. That answer is "to the extent permitted by due process."  In the actual or practical world, the answer is much more difficult.  PHILIP SELDON, Plaintiff, – against – REBENACK, ARONOW & MASCOLO, LLP and JAY MASCOLO, Defendants. Index No. 101042/11;101042/11 ;SUPREME COURT OF NEW YORK, NEW YORK COUNTY;2011 NY Slip Op 32364; 2011 N.Y. Misc. LEXIS 4328; illustrates the manner in which Courts decide this question.

"In November 2006, a judgment was entered against Seldon in Supreme Court, New York County, and in favor of Andrew J. Spinnell, in the amount of $515,013.00. Defendants did not represent plaintiff in the New York action. In an effort to collect the judgment, Spinnell docketed his New York judgment in Superior Court of New Jersey. As a result, a bank affiliated with two of Seldon’s companies, restricted those companies from accessing funds.

Thereafter, Seldon was referred by the Middlesex County Bar Association to defendants Rebenack, Aronow & Mascolo, LLP ("Rebenack"), a New Jersey law firm. Plaintiff signed a retainer agreement with Rebenack on June 27, 2007. Rebenack commenced an action ("the bank action"), and filed an order to show cause in Superior Court, seeking to lift the restrictions. [**2] The Order to Show Cause was denied and the court permitted Spinnell to withdraw certain funds in satisfaction of his [*3] judgment. In October 2007 Spinnell filed a separate action, also in Superior Court, alleging that plaintiff, individually, and through his corporations, had fraudulently conveyed funds. In May 2009 a Superior Court judge decided that Spinnell’s claims were barred because he failed to assert them in the bank action. In July 2010, the Superior Court Appellate Division reversed the lower court and remanded the action to trial court to determine "whether there were any issues of material fact."

In December 2010 the action was tried and the judge found that Seldon fraudulently conveyed his funds and was directed to pay Spinnell the monies owed on the New York judgment. At the trial Rebenack represented the corporations and Seldon appeared pro se. Thereafter, Seldon commenced the instant malpractice action by service of a Summons with Notice on January 26, 2011, alleging that Rebenack failed to properly prepare him for trial, and failed to properly represent him.

Rebenack, in support of its motion, submits: the complaint; a copy of the Appellate Division decision; a copy of [**3] the retainer agreement; and a copy of a Superior Court "Order and Judgment." Rebenack argues that it is a New Jersey firm that does not advertise or conduct business in New York. The underlying matter, Rebenack asserts, arose out of New Jersey litigation, and all meetings, and preparation for trial were done in New Jersey.

Rebenack admits that it "shared a single office" in New York City with a New York attorney from 2009 until January 2011, but, through the affidavit of defendant Jay Mascolo, claims that it had no staff or telephone listing for that office, and that the firm did not hold a New York bank account. Rebenack further concedes that the New York address was listed on its letterhead during that period, but asserts that the office was only used three times to hold EBTs in unrelated insurance matters, and that the office was now closed due to non-use.

 

Although a plaintiff bears the ultimate burden of proof on the issue of personal jurisdiction, in opposing a motion to dismiss pursuant to CPLR 3211(a)(8) on the ground that discovery on the issue of personal jurisdiction is necessary, plaintiffs [**6] need not make a prima facie showing of jurisdiction, but instead must only set forth "a sufficient start," and "should have further opportunity to prove other contacts and activities of the defendant in New York as might confer jurisdiction under the long arm statute, thus enabling them to oppose the motion to dismiss."(Peterson v. Spartan Industries, Inc., 33 NY2d 463[1974]).

Rebenack maintained an office in New York until January 2011, in or around the time the summons and notice would have been served. Additionally, the New York address was listed on Rebenack’s letterhead during the period from 2009 through January 2011. Thus, there is sufficient basis to deny Rebenack’s motion and permit discovery on the issue of whether Rebenack was "doing business" in New York. (see; CPLR 3211[d]).

Wherefore it is hereby

ORDERED that defendant’s motion is denied without prejudice to a new motion at the close of discovery on the jurisdictional issue; "

The decision in Gucci America Inc. v. Guess? Inc., doesn’t answer the legal malpractice question, but it does answer the privilege question. Here’s the back story from Noeleen Walder at the New York Law Journal:

"Mr. Moss, a graduate of Fordham University School of Law, passed the California bar exam in 1993 but went on inactive status three years later.

He was referred to Gucci by two of its outside counsel from Patton Boggs in Washington, D.C., and joined the company’s Secaucus, N.J., office in 2002 to analyze real estate financials.

Just months after joining the company, Mr. Moss, who maintains he was hired as a "legal associate," filed a pro hac vice motion in U.S. Bankruptcy Court for the Southern District to represent Gucci, according to Magistrate Judge Cott’s decision.

In 2003, Gucci promoted Mr. Moss to in-house counsel. In that position, Mr. Moss filed trademark applications in which he was labeled an "attorney-at-law and member of the Bar of California," represented Gucci in employment matters, and appeared before courts and administrative agencies on the company’s behalf. In 2005, Gucci once again promoted Mr. Moss, this time appointing him director of legal services. Three years later, Mr. Moss was appointed vice president and director of legal and real estate.

In an affidavit, Mr. Moss said, "I did not believe that my inactive status in California limited my ability to practice law in any other jurisdiction where such practice was permissible."

Mr. Moss insists that no one ever brought up the issue of his inactive status during his eight years at Gucci.

For its part, Gucci has maintained that it "perceived" Mr. Moss to be an attorney authorized to practice law.

In an affidavit, Christy Leleck, a director of Human Resources at Gucci during Mr. Moss’ tenure, said she never thought to confirm Mr. Moss’ qualifications since "he was already perceived by senior management as the company’s lawyer."

It was not until December 2009 that Gucci launched a "preliminary investigation" into Mr. Moss’ status.

Gucci terminated Mr. Moss on March 1, a month after he reactivated his bar status in California.

In court papers filed in April, Guess maintained that Gucci could have discovered "with a few clicks of the mouse" that Mr. Moss was not licensed to practice law (NYLJ, April 19).

"Gucci could have readily learned that Jonathan Moss was not authorized to practice law simply by asking him whether he was an active member of the California Bar… And this is what Gucci never did in all these years as Gucci’s legal counsel."

Magistrate Judge Cott agreed.
 

in PETER MCCLUSKEY, Plaintiff-Appellant, -v.- NEW YORK STATE UNIFIED COURT SYSTEM, CHIEF JUDGE JONATHAN LIPPMAN, GABOR & GABOR, DAVID GABOR, HOPE GABOR, Defendants-Appellees we see a pro-se litigant’s swipe at the NYS Court system, and his former attorneys.  This Federal case takes place after plaintiff lost a legal malpractice case against the same defendant-attorneys.

You may not sue the State successfully for claimed mistakes of a judge. "The district court correctly dismissed the claims against the State Defendants. First, the claims against the State Defendants are based solely on judicial acts preformed by judges in their judicial capacity. Hence, the claims against Chief Judge Lippman are barred by the doctrine of judicial immunity. Bliven v. Hunt, 579 F.3d 204, 209 (2d Cir. 2009). In addition, McCluskey’s claims for injunctive relief against Judge Lippman are barred by statutory judicial immunity because McCluskey did not allege that "a declaratory decree was violated" or that "declaratory relief was unavailable." 42 U.S.C. § 1983; see also Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999).

Second, the claims against the Unified Court System are barred by the Eleventh Amendment since it is an arm of the State of New York. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984) ("This jurisdictional bar applies regardless of the nature of the relief sought."); see also N.Y. Const. art. 6, § 1 (creating the unified court system); In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) ("[The Eleventh Amendment] jurisdictional bar also immunizes a state entity that is an arm of [*6] the State.") (internal quotation marks omitted); Zuckerman v. App. Div., Second Dep’t, 421 F.2d 625, 626 (2d Cir. 1970) (holding that the Appellate Division was not a person under § 1983). In addition, there is no evidence suggesting any waiver of sovereign immunity. See Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 684, 102 S. Ct. 3304, 73 L. Ed. 2d 1057 (1982) ("A suit generally may not be maintained directly against the State itself, or against an agency or department of the State, unless the State has waived its sovereign immunity.")."

The claim against the attorney failed too: "Likewise, the district court correctly dismissed the claims against the Gabor defendants. First, private actors are not proper § 1983 defendants when they do not act under color of state law. See Am. Mfrs. Mut. Ins. Co., v. Sullivan, 526 U.S. 40, 49-50, 119 S. Ct. 977, 143 L. Ed. 2d 130 (1999) (explaining that § 1983 actions do not reach purely private conduct). "[A] private actor acts under color of state law when the private actor is a willful participant in joint activity with the State or its agents." Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (internal quotation marks omitted). A "conclusory allegation that a private entity acted in concert with a state actor [*7] does not suffice to state a § 1983 claim against the private entity." Id.

McCluskey contends that Gabor acted "jointly" with the Appellate Division by moving to dismiss his appeal for lack of jurisdiction, a motion which the Appellate Division granted. This claim is meritless, see Ciambriello, 292 F.3d at 324, especially as McCluskey concedes that state law permitted Gabor to move to dismiss the appeal, and the Appellate Division had "no choice but to apply the reargument procedural rule uniformly."

Second, to the extent that McCluskey asked the district court to review state court rulings in favor of Gabor, his complaint was properly dismissed pursuant to the Rooker-Feldman doctrine. Lower federal courts lack subject matter jurisdiction in "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments." Exxon Mobil Corp. V. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005). As the district court correctly concluded, McCluskey’s allegations against Gabor largely reiterate the claims made in the original state court malpractice proceedings, [*8] claims that were dismissed on the merits."

 

 

From the NY TImes:

"A bill to overhaul the patent system that is before the Senate contains a provision that could get an influential law firm off the hook for a possible $214 million malpractice payment.

J. Scott Applewhite/Associated Press
“The key question is whether we will vote to bail out a law firm that made a mistake and now wants consumers and taxpayers to pay the freight for that error,” said Senator Jeff Sessions, above, and Senator Tom Coburn, in a letter to colleagues.
The provision clarifies how much time pharmaceutical companies have to apply for patent extensions that can provide extra years of protection from generic competition.

But critics, who have labeled the provision “The Dog Ate My Homework Act,” say it is really a special fix for one drug manufacturer, the Medicines Company, and its powerful law firm, WilmerHale. The company and its law firm, with hundreds of millions of dollars in drug sales at stake, lobbied Congress heavily for several years to get the patent laws changed.

The patent office initially said that the company had missed the deadline for applying for a patent extension by a day or two, potentially losing nearly four years of patent protection on its main drug, the anticoagulant Angiomax. The provision would guarantee that the Medicines Company got the extra patent protection, and it would relieve WilmerHale, which was hired to file the application, of a possible malpractice payment to its client.

On Thursday, the Senate is scheduled to vote on an amendment proposed by Senator Jeff Sessions, Republican of Alabama, that would strip the provision from the bill. “The key question is whether we will vote to bail out a law firm that made a mistake and now wants consumers and taxpayers to pay the freight for that error,” Senator Sessions and Senator Tom Coburn, a Republican from Oklahoma, said in a letter sent Wednesday to colleagues. They said the extra patent protection on Angiomax could cost hospitals and consumers $1 billion."

GABRIEL D’JAMOOS, , v. MICHAEL GRIFFITH, No. 08-3668-cvUNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2009 U.S. App. LEXIS 17868;August 12, 2009, discusses termination for cause and the proofs needed:

"Under New York law, an attorney may be dismissed by a client at any time with or without cause." Garcia v. Teitler, 443 F.3d 202, 211 (2d Cir. 2006). "If the discharge is for cause, [*7] the attorney is not entitled to fees." Id. "If, however, the discharge is without cause, the attorney may recover the value of services rendered in quantum meruit," id. at 211-12, "even where the attorney discharged without fault was employed under a contingent fee contract," Universal Acupuncture Pain Servs., P.C. v. Quadrino & Schwartz, P.C., 370 F.3d 259, 263 (2d Cir. 2004) (internal quotation marks omitted). "Poor client relations, differences of opinion, or personality conflicts do not amount to cause, which is shown by impropriety or misconduct on the part of the attorney." Garcia v. Teitler, 443 F.3d at 212.

We identify no error in the district court’s conclusion that Griffith was not terminated as a result of such "impropriety or misconduct." Id. D’Jamoos’s December 1, 1999 letter releasing Griffith notes plaintiff’s "profound dissatisfaction with the [1998 settlement] and the quality of the representation that [he] received." At his deposition, D’Jamoos noted as causes for the termination, inter alia, Griffith’s failure to enforce the 1997 settlement, his dissatisfaction with the 1998 settlement, and various trial-related omissions. To the extent these complaints "consist solely [*8] of dissatisfaction with reasonable strategic choices regarding litigation," under New York law, "[s]uch choices do not, as a matter of law, constitute cause for the discharge of an attorney." Callaghan v. Callaghan, 48 A.D.3d 500, 501, 852 N.Y.S.2d 273 (2d Dep’t. 2008). Moreover, as the district court rightly emphasized, on March 27, 1998, D’Jamoos expressed, under oath, his agreement with the 1998 settlement. That he subsequently became dissatisfied with that settlement does not constitute "cause" for Griffith’s termination warranting D’Jamoos’s withholding compensation for counsel’s services. To the extent plaintiff also cites certain litigation and enforcement delays that might support termination for cause, plaintiff has failed to offer evidence indicating that such delays were caused by Griffith. Finally, while we have noted that, "[i]f a client who retained an attorney under a contingent-fee agreement discharges that attorney because there is no chance of recovery for the client, the discharge may be for cause, and the attorney may not be entitled to fees in quantum meruit," Universal Acupuncture Pain Services, P.C. v. Quadrino & Schwartz, P.C., 370 F.3d at 265 n.7, we agree with the district [*9] court that the record does not demonstrate this to be such a case."

 

Cases in Landlord-Tenant court often have sad back-stories, and even sadder endings.  In Alves v 152-154 W. 131st St. Holding Co., Inc. ;2011 NY Slip Op 32328(U) ;August 25, 2011
Supreme Court, New York ounty ;Docket Number: 116783/10 ;Judge: Donna M. Mills we see only the begining of a tale so complex, that it does not bear repeating.

"In her affidavit, plaintiff states that she was originally represented by an attorney, Romeo Salta (Salta), who filed the initial complaint, which allegedly contained errors and was incorrectly served upon the parties. Salta was thereafter relieved by this court on March 18, 20 11. Plaintiff is representing herself, and wishes to continue in that status. Plaintiff elaborates that the original complaint was vague in its language. In addition, she claims that Salta failed to sue defendant William T. Hurley (Hurley) both personally and as the  President of the Board of Directors of the co-op, and did not serve him. She contends that the amended complaint would not prejudice defendants at this early stage of the action. A copy of the proposed amended complaint is submitted. This complaint contains fourteen causes of action. The first cause of action is brought against the landlord and Hurley, in his dual capacities, for malicious prosecution and/or abuse of process. The second cause of action is brought against the landlord and Hurley as president of the Board of Directors, for violation of Section 223-b of the Real Property Law, The third cause of action is brought against Hurley, in his dual capacities, for harassment. The fourth cause of action is brought against the landlord for respondeat superior. The fifth cause of action is brought against defendant Michael Schwartz (Schwartz), the landlord’s attorney, for negligence. The sixth cause of action is brought against defendant Barry Malin & Associates, P.C. (Malin), Schwartz’s employer, for respondeat superior. The seventh cause of action is brought against Malin, Schwartz, the
landlord and Hurley, in his dual capacities, for intentional infliction of emotional distress. The
eighth cause of action is brought against defendants Adam L. Bailey (Bailey) and Steven Decastro (Decastro), former attorneys of plaintiff, for negligence. The ninth cause of action is brought against defendants Bailey and Decastro for breach of fiduciary duty. The tenth cause of action is brought against Bailey, Decastro and defendant Gregory Calabro (Calabro), a former attorney of plaintiff, for breach of contract. The eleventh cause of action is brought against Calabro for breach of fiduciary duty:The twelfth cause of action is brought against Calabro for fraud andor negligence. The thirteenth cause of action is brought against Calabro for conversion. The fourteenth cause of action is brought against Bailey, Decastro and Calabr based on a fee dispute.

Opposition to this motion is brought by Bailey, Calabro, the landlord and Hurley. Bailey  argues that this motion must be denied because it lacks colorable merit. He claims that he did not represent plaintiff in his personal capacity but that his firm was retained by her. According to him, the retainer checks she sent to that firm were not made out to him, but to the professional corporation, “Adam Leitman Bailey, P.C.”

Moreover, he states that there are no grounds for negligence or breach of contract due to the fact that she did not lose the Civil Court suit. He avers that the timeliness of the suit was not due to any actions taken by his firm. The fee dispute concerns a demand for a refund of money to which Bailey claims his firm was entitled. Calabro opposes the motion on the ground that there is no merit to the breach of fiduciary duty claim, since, through his efforts, plaintiff was relieved from the Civil Court suit, and he, not plaintiff, was entitled to attorney’s fees in that case. The landlord and Hurley oppose the motion, arguing that, as well as lacking in merit, plaintiffs amended complaint was improperly served on them. They acknowledge that tlus court, by Order dated March 18,201 1, granted plaintiffs former counsel’s motion to withdraw as plaintiffs counsel, and directed him to serve notice to plaintiff directing her to appoint a “substitute attorney” within 60 days. This Order prevented them, and other defendants, from taking any further proceedings against plaintiff without leave of court for a period of 90 days after entry of this Order, which allegedly expire on July 6,201 1. The landlord and Hurley request that the court prevent plaintiff from filing or serving the proposed amended complaint until after the expiration date of the stay. 
In reply, plaintiff states that she is suing Bailey in his capacity as the owner of his law firm. She asserts that the claim of malpractice against him is valid and that he did not give her a retainer. She argues that Calabro was not entitled to all legal fees and that he initiated a Civil Court suit against her .to recover other1 unearned fees. She claims that she was not present or represented at the proceeding. That suit is allegedly stayed by court order.Plaintiff contends that the claims against the landlord and Hurley are valid as these defendants brought a holdover proceeding based on false grounds and as a vehicle for abuse and harassment, that was finally dismissed after three years of litigation. She opposes their request to delay her motion as pointless, since the order was allegedly meant to protect her temporarily  from further actions brought by defendants. She defends her decision to sue Hurley in a dual capacity,due to the nature of his alleged misconduct. "

Appellate Decisions are always correct, well reasoned, and exquisitely written.  Sometimes they are recalled and changed.  Landa v Blocker   2011 NY Slip Op 06370 ;  Decided on August 30, 2011 ;  Appellate Division, Second Department  is an example of the result of persistence in appellate work.
This case is an attorney fee/legal malpractice matter in which it was alleged that the client "approved" monthly statements.  If she approved, then an account was stated and there is little to no defense to the attorney fee issue.

So the Appellate Division found, and so the appeal ended, until appellant’s attorney moved to reargue.  Here it was successful,

"ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff the principal sum of $193,525.40; as so modified, the judgment is affirmed, without costs or disbursements, those branches of the plaintiff’s motion which were for summary judgment on the first cause of action of the amended complaint and to strike the eighth affirmative defense are denied, and the order dated April 13, 2009, is modified accordingly; and it is further

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648; Landa v Sullivan, 255 AD2d 295). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154; Rodkinson v Haecker, 248 NY 480, 485). The defendant asserted in her affidavit that she signed the invoices as "approved," not because she actually agreed that the amounts reflected therein were correct, but because she was told that no work would be done on her case unless she signed the invoices. For example, the defendant averred that, during a conference at the plaintiff’s office, the plaintiff produced a number of unsigned billing statements and told the defendant that "the conference was not going to proceed until [she] signed the billing statements." According to the defendant, she signed the billing statements, but "[t]here was no intent on [her] part to accept the billing so that it could never, ever, be challenged in the future."

We note that the plaintiff’s alleged refusal to proceed with his representation of the defendant unless the defendant signed the billing statements "would not constitute duress by reason [*3]of which [the defendant] would be entitled to have the written statement invalidated" (Miller v Storer, 1 AD2d 956, 956, affd 2 NY2d 815). Here, however, the defendant does not seek to invalidate or repudiate either the billing statements or the retainer agreement between the parties. Indeed, unlike the client in Miller, the defendant in this case has not asserted a counterclaim for rescission of any agreement between the parties. Rather, the defendant seeks only to defeat that branch of the plaintiff’s motion which was for summary judgment on his cause of action to recover on an account stated by raising a triable issue of fact as to whether she agreed to or acquiesced in the correctness of the invoices. The facts asserted in the defendant’s affidavit are sufficient to raise a triable issue of fact as to whether her acts of signing the invoices "were, in fact, acquiescence to their correctness" (Ween v Dow, 35 AD3d 58, 62).

The Supreme Court also improperly granted that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive. The plaintiff failed to meet his prima facie burden of establishing his entitlement to judgment as a matter of law in connection with this affirmative defense (see Bomba v Silberfein, 238 AD2d 261). Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive, without regard to the sufficiency of the defendant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "