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). "

We rarely write about ourselves, but today we pass the 2500 article milestone.  In our case, we generally publish one article a work day, and today’s submission makes 2501 articles.  We thank our readers for their interest in the legal malpractice world and its unique players.

Legal malpractice pops up in many transactional cases, and LZG Realty, LLC v H.D.W. 2005 Forest, LLC:011 NY Slip Op 06372;ecided on August 30, 2011;ppellate Division, Second Department is one.  Here malpractice was alleged in a mortgage transaction where there were multiple mortgages and the allegation of fraud in documents by the borower.

"In a letter dated May 9, 2011, the Hager defendants informed this Court that they and HDW had settled the first cause of action alleging legal malpractice asserted against them in the third-party complaint and that, consequently, they were declining to prosecute their cross appeal from so much of the Supreme Court’s order as denied that branch of their cross motion which was for summary judgment dismissing that third-party cause of action. Summary judgment dismissing the third-party complaint in its entirety must, thus, be awarded to all of the third-party defendants in Action No. 1 since: (1) HDW has settled the first cause of action alleging legal malpractice; (2) the Supreme Court awarded summary judgment dismissing the second cause of action alleging fraud on the ground that HDW does not have standing to raise that claim, which involved an unrelated real estate transaction, and no party appealed that determination; (3) the mortgages are valid, thus defeating HDW’s right to relief pursuant to the third cause of action in the third-party complaint; and (4) the Supreme Court awarded summary judgment dismissing the fourth cause of action alleging slander of title, and no party appealed that determination.

In addition, summary judgment dismissing all of the causes of action and cross claims for contribution must be awarded to the Hager defendants because HDW settled the legal malpractice claim, and the remaining grounds for seeking contribution, as set forth in the pleadings, are no longer viable (see Rosner v Paley, 65 NY2d 736, 736; Crimi v Black, 219 AD2d 610, 611). Similarly, there is no express or implied contract that would give rise to a cause of action for indemnification (see County of Westchester v Welton Becket Assoc., 102 AD2d 34, 42, affd 66 NY2d 642; Jakobleff v Cerrato, Sweeney & Cohn, 97 AD2d 786)."

Failure to advise a client of the attorney’s malpractice (or hiding the malpractice) is not enough to give rise to a cause of action, but fraud in advising the client that attorney is licensed in Florida is enough.  In Rupolo v Fish ; 2011 NY Slip Op 06343 ;Decided on August 23, 2011 ;Appellate Division, Second Department  we see that while it may be too late to sue for legal malpractice, it is not too late for a claim in fraud.
 

"In the second cause of action the plaintiffs allege that the defendants committed legal malpractice with respect to the drafting of an easement agreement benefitting certain real property located in Florida and owned by the plaintiffs. The Supreme Court erred in denying that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss this cause of action as time-barred. The defendants demonstrated that the alleged legal malpractice occurred more than three years before the instant action was commenced on October 31, 2008 (see CPLR 214[6]; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017). Contrary to the plaintiffs’ contention, they failed to raise a question of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation. Rather, the evidence demonstrated that the relationship necessary to invoke the continuous representation doctrine terminated during the summer of 2005 (cf. Marlett v Hennessy, 32 AD3d 1293, 1294; Piliero v Adler & Stavros, 282 AD2d 511), and the fact that the defendants received a telephone call from the plaintiffs’ new counsel in November 2005, during which the defendants provided requested information to new counsel, did not toll the running of the statute of limitations until that date (see Tal-Spons Corp. v Nurnberg, 213 AD2d 395, 396). Accordingly, that branch of the defendants’ motion which was to dismiss the legal malpractice cause of action should have been granted (see Williams v Lindenberg, 24 AD3d 434, 434-435).

However, the Supreme Court properly denied that branch of the defendants’ motion [*2]pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging fraud as duplicative of the legal malpractice cause of action. As alleged in the complaint, the fraud cause of action was based upon tortious conduct independent of the alleged malpractice, i.e., an alleged misrepresentation as to the eligibility of the defendant Richard E. Fish to practice law in the State of Florida, and the plaintiffs alleged that damages flowed from this distinct conduct (cf. Weiss v Manfredi, 83 NY2d 974, 977 ["attorney’s failure to disclose malpractice does not give rise to a fraud claim separate from the customary malpractice action"]; Iannucci v Kucker & Bruh, LLP, 42 AD3d 436). "

The perennial question of whether a prior proceeding might influence a later proceedings arises again in Feinberg v. Boros, 2010 NY Slip Op 30797, by Justice Emily Jane Goodman, in Supreme Court, New York County.

The legal malpractice claim arose after an arbitration between plaintiff and his former business partner, where defendants acted as Feinberg’s party arbitrator and later as counsel in a law suit against the former accountants to the business. The claim is that defendants failed to advise plaintiff about the collateral estoppel effect of the arbitration award on his subsequent suit against the accountants for malpractice.

Such malpractice – malpractice lawsuits are more common than one might imagine. While the popular conception is that the client is litigious, or lawsuit-crazy, the better and more accurate version is that the client has moved from one situation to the next in search of a proper finding of liability.

"In 1997, plaintiff and his former partner, Norman Katz, submitted to arbitration the issue of the final purchase price of Katz’s share of the jointly owned I. Appel Corporation, thus barring litigation of plaintiff’s claims against the corporation’s accounting firm (I. Appel Corp. v Mahoney Cohen & Co., 294 AD2d 196 [2002]; 6 AD3d 279 [2004], lv denied 4 NY3d 701 [2004]).

Plaintiff now seeks damages resulting from the alleged negligence of their former attorneys in failing to move to amend the arbitration award to insert language limiting the collateral estoppel effect of the award. We agree that plaintiff’s pleading of his legal malpractice cause of action was sufficient to survive defendants’ original CPLR 3211 (a) (7) motion. From the alleged facts, accepting them as true, according them the benefit of every possible favorable inference, and evaluating them only as to whether they fit within any cognizable legal theory, one could infer that plaintiff’s former partner would have been amenable to an agreement limiting the estoppel effect of the arbitration award. Defendants have not established, as a matter of law, that even if plaintiff and Katz had entered into an agreement limiting the collateral estoppel effect of the arbitration award, the Mahoney Cohen lawsuit would nonetheless have been dismissed on collateral estoppel grounds (Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184 [1977]; accord Kerins v Prudential Prop. & Cas., 185 AD2d 403 [1992]). In circumstances involving arbitration, the parties themselves can formulate their own contractual restrictions on the carry-over estoppel effect (Matter of State Farm Ins. Co. v Smith, 277 AD2d 390 [2000]). Accordingly, plaintiff’s proposed amended complaint sufficiently states a claim for legal [*2]malpractice (Deitz v Kelleher & Flink, 232 AD2d 943 [1996]; see also Tenzer, Greenblatt, Fallon & Kaplan v Ellenberg, 199 AD2d 45 [1993])."

What is a question of judgment, what is neglect of a case and what is ignorance of the rules in legal malpractice? Sometimes this is an easy question, other times, slightly more complex. in MCCORD -v.- O’NEILL,; No. 08-3096-cv ; Summary Order; UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2010 U.S. App. LEXIS 5139 we see the 2d Circuit’s general definitions;
 

"Construing all the facts in McCord’s favor, an independent review of the record shows that the district court properly granted O’Neill’s motion for summary judgment. "To state a claim for legal malpractice under New York law, a plaintiff must allege: (1) attorney negligence; (2) which is the proximate cause of a loss; and (3) actual damages." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006). Under this standard, "[a] complaint that essentially alleges either an ‘error of judgment’ or a ‘selection of one among several reasonable courses of action’ fails to state a claim for malpractice." Id. (quoting Rosner v. Paley, 65 N.Y.2d 736, 481 N.E. 2d 553, 554, 492 N.Y.S.2d 13 (N.Y. 1985)). And, in general, "an attorney may only be held liable for ‘ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action.’" Id. (quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 554 N.Y.S.2d 487, 489-90 (N.Y. App. Div. 1st Dep’t 1990)).

Here, McCord’s malpractice claim rested on the allegation that O’Neill’s failure to contact Ron Lawrence, another employee of McCord’s former employer, as a possible witness constituted [*4] negligence, and that, had Lawrence been a witness in his case, the district court would not have granted Airborne’s motion for judgment of a matter of law and dismissed McCord’s discrimination claims. O’Neill met his initial burden of demonstrating that his decision was a reasonable strategic choice by showing that the only information regarding Lawrence in McCord’s possession at the time was Lawrence’s "Summary of Disciplinary/Attendance History." This document showed that Lawrence, a Caucasian, had received much the same disciplinary treatment as McCord, undermining McCord’s contention that calling Lawrence would have enabled him to demonstrate that his employer treated him less favorably than a similarly situated employee outside of his protected group. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). As the district court correctly observed, McCord adduced no evidence in response suggesting that O’Neill’s failure to contact Lawrence was negligent, or that this decision could have proximately resulted in the court’s unfavorable decision in Hill."

Siracusa v Sager   2011 NY Slip Op 32244(U);August 3, 2011;Supreme Court, Suffolk County; Docket Number: 06-35942; gives Judge: Peter Fox Cohalan the opportunity to review a many faceted matrimonial child support legal malpractice case. Aside from the question of why a father would resist paying $ 125 a week in child support, the case seems to hinge on whether and who made tactical decisions, and to what extent the plaintiff participated.

"The plaintiff commenced this action against the defendants Jeffrey Horn, Esq., Horn & Horn, Esq., and Horn, Horn & Ramme, Esq. (hereinafter collectively referred to as the Horn defendants), and Audrey Sager, Esq., Steven Gellerman, Esq., and Sager & Gellerman, Esq. (hereinafter collectively referred to as the Sager defendants) to recover damages he allegedly sustained as a result of their legal malpractice. The gravamen of the plaintiffs complaint is that Jeffrey Horn, Esq. and Audrey Sager, Esq. failed to confer with or prepare the plaintiffs certified public accountant, William Carney (hereinafter CPA), to testify on the plaintiffs behalf or to introduce documents from the CPA into evidence; that they advised the plaintiff to enter into a stipulation to modify his custodial arrangement from sole custody to joint custody; arid that they failed to make an application to disqualify the plaintiffs former wife’s attorney during their matrimonial action."

"In 1998, the plaintiff retained the Sager defendants to represent him in an action seeking sole custody of his infant daughter. Following the filing of a petition for sole custody, the plaintiffs wife commenced a separate action f’or a judgment of divorce. On March 12, 1999, they entered into a stipulation resolving the issues of custody and visitation and, on June 16, 1999, a judgment of divorce was granted. Under the March 12, 1999 stipulation, the plaintiff was designated as the non-custodial parent for child support purposes and the plaintiffs former wife was designated as the primary custodian. On December 8, 2000, the parties entered into a stipulation modifying the March 12, 1999 stipulation of custody. Pursuant to the new custody stipulation, the parents were given joint custody of the infant child, with the plaintiff designated as the primary custodial parent and his former wife designated as the secondary custodial parent. However, the issue of child support was left unresolved and a hearing on the issue of child support was scheduled."

"In opposition, the plaintiff has failed to demonstrate that the Horn and Sager defendants committed malpractice by allegedly not calling the plaintiffs CPA as a witness, by advising him
to enter into a modification of his March 12, 1999 child custody stipulation, or by failing to move to disqualify his former wife’s counsel (see generally Waggoner v Caruso, 14 NY3cl 874, 903 NYS2d 333 [2010]; Davis v Klein, 88 NY2d 1008, 648 NYS2d 871 [1996]). In any event, the plaintiff has failed to present any proof that such alleged failures were the proximate cause of any damages sustained by the plaintiff (see Leder v Speigel, 9 NY3d 836, 840 NYS2d 888 [2007]; Manna Fuel Oil Corp v Ades, 14 AD3d 666,789 NYS2d 288 [2d Dept 20051). The trial Court conducted a thorough hearing on the child support issue and noted that the testimony of the plaintiff was “evasive, contrived, inconsistent, and designed to obfuscate the financial issues before the court,” and that the plaintiffs explanations for his failure to produce tax returns, bank statements and checks was best described as “blase, indifferent and unconcerned.” The trial Court also noted in its  determination that the plaintiffs lifestyle and living accommodations bordered on lavish. Moreover, the plaintiffs claim of damages remains speculative and unascertainable (see Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 843 NYS2d 104 [2d Dept 20071; Dweck Law Firm v Mann, 283 AD2d 292,727 NYS2d 58 [Ist Dept 20011, Oot v Arno, 275 AD2d 1023,713 NYS2d 382 [4th
Dept 20001). Additionally, the CPA’s affidavit is without probative value since he states that he does
not have personal knowledge, and that his knowledge is based upon “what the plaintiff told
him and the documentation that he received from the plaintiff.” Despite its lack of probative
value, even if the Court were to consider this affidavit, the CPA fails to explain how the application of the “Gross Profits Tests” by the plaintiffs former wife’s expert, which found that the plaintiffs company was grossly understating its income, was an incorrect assessment. "

Justice Judith Gische of Supreme Court, New York County presents a primer on attorney fee litigation and the disposition of counterclaims for legal malpractice in Hurley v. Bulah Church of God in Christ Jesus, Inc. In this case the Church had gone through some hard times. A pastor was accused of financial wrongdoing, and the Church was in Bankruptcy Court for taxes and other debts. Attorney was retained, and worked on the case in what turns out to be an admirable fashion. When the Bankruptcy was winding up, leadership of the Church changed, and he was no longer so admired there. Effect? The Bankruptcy court approved fees, and he was paid. Nevertheless, there were post-discharge work and fees, and this dispute in state court followed.

Read for the excellent description of why and how an attorney is due fees. "an attorney who is discharged by a client for cause has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. Teichner by Teichner v. W & J Holsteins, Inc., 64 NY2d 977 (1985). On this motion plaintiff has successfully established that he: 1) owed unpaid legal fees; 2) was not discharged for cause, but withdraw as counsel with court approval; 3) deposited money into his attorney escrow account to be applied to post closing matters, like distribution of money to creditors, etc; and 4) Deacon Roberts was authorized to attend to the church’s financial matters with respect to the reorganization. Thus, plaintiff has proved he is owed unpaid legal fees and other fees."