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."
 

This is the story of an attorney who put his own freedom at risk in order to stymie a former client, and a successor attorney. Why, and the clumsy method undertaken is the mystery. in In re: RUBY G. EMANUEL, Debtor.;Chapter 7, Case No. 97-44969 (SMB); UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 Bankr. LEXIS 4024;December 23, 2009

"This matter has its origins in an unfortunate, fatal accident involving the debtor’s husband. On December 17, 1992, Mr. Emanuel’s employer was performing repairs on a barge in dry dock at the Brooklyn Navy Yard. The task called for the placement of a gangway connecting the barge to the dock. Mr. Emanuel was charged with the responsibility of placing the gangway. While standing on the gangway as it was being hoisted into place, Mr. Emanuel fell 45 feet to the bottom of the dry dock, sustaining massive injuries that rendered him a quadriplegic and ultimately led to his death on August 30, 2004. Emanuel v. Sheridan Transp. Corp., 10 A.D.3d 46, 779 N.Y.S.2d 168, 170-71 (N.Y. App. Div. 2004) ("Emanuel I").

The debtor retained Heller, individually and as administratrix of her husband’s estate, to file a wrongful death action. Heller commenced suit against the barge owner, among others, asserting claims under the Jones Act, New York Labor Law and in negligence (the "Action"). Prior to the trial, on July 28, 1997, the debtor filed a voluntary petition [*3] for relief under chapter 7. By Order dated August 10, 1999, the Trustee retained Heller (and Samuel Hirsch) as special personal injury counsel to the Trustee to prosecute the Action." Heller won a multi million dollar verdict

Approximately one month after the Appellate Division reversal, Heller was disbarred. The charges that triggered the disbarment were unrelated to the Emanuel case.. The Appellate Division disagreed. Citing Heller’s pattern of misconduct, "utter contempt for the judicial system" and "his consistent, reprehensible, [*5] unprofessional behavior," the court concluded that he should be disbarred rather than suspended:
In light of the cumulative evidence of respondent’s 24-year history of sanctions, his perverse and persistent refusal to accept adverse rulings, reflective of an utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included screaming at, threatening and disparaging judges, adversaries and experts, intentionally defying court rulings, and disrupting and thwarting proper legal process through both physical and verbal aggression, we are of the opinion that the appropriate sanction here is disbarment.
Heller failed to purge himself of the contempt, and state Supreme Court Justice Silver issued a warrant for Heller’s arrest on February 26, 2007. In re Emanuel, 406 B.R. 634, 635 (Bankr. S.D.N.Y. 2009) ("Emanuel II"). Heller was arrested that same day, and was subsequently sentenced to 30 days in jail and a $ 10,000 fine (the "Sentencing Order").

Deprived of Heller’s files, J&M carried on the best it could relying on the Record on Appeal. 5 Eventually, it procured a $ 3.65 million settlement that the Trustee accepted.

Heller’s post-disbarment conduct caused prejudice to his former clients. Having lost the case he tried, Heller obstructed J&M’s attempts to retry the case he lost. His refusal to turn over the files, in the face of several court orders directing him to do so, was symptomatic of what the Appellate Division described as his "utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included . . . intentionally defying court rulings" in the Heller disbarment order. In re Heller, 780 N.Y.S.2d at 319. Furthermore, although he argued to the Appellate Division, as he does here, that the Record on Appeal included everything that [*25] J&M needed to retry the case, (see J&M Findings, Ex. 25, at 51-53), the Appellate Division concluded that Heller’s contemptuous refusal to turn over the files caused "resulting prejudice to plaintiff’s right to a new trial."
 

we’ve often written about privity and legal malpractice, and ran across this case illustrating the boundaries of privity in medical malpractice.  The facts are ghastly, and the outcome, for plaintiff, is doubly hurtful.

In Fox v Marshall ; 2011 NY Slip Op 06214 ; Decided on August 9, 2011 ; Appellate Division, Second Department ; Sgroi, J., J. the question is whether decedent’s husband may sue a physician alleged to have negligently treated a psychiatric patient.
 

"In this case we address the often muddled issue of whether a legally viable medical malpractice cause of action can be asserted against a physician by a third party even though no doctor-patient relationship ever existed between these parties. Under the circumstances of this case, we conclude that the law does not recognize such a cause of action.

This action has its genesis in a particularly brutal and unsettling crime, the murder of Denice Fox by her neighbor, the defendant Evan Marshall, on August 17, 2006. Denice Fox, a retired teacher, lived on Willada Lane in Glen Cove, Nassau County. Prior to 2005, Evan Marshall lived, intermittently, at the home of his mother, the defendant Jacqueline Marshall, which was located two doors away from the Fox home. At the time of the crime, Marshall was 31 years old, had a history of substance abuse and psychiatric problems, and had, between August and November 2005, been treated at 10 different drug abuse and mental health facilities.

Beginning in November 2005, Marshall resided at and was treated at the defendant SLS Residential, Inc. (hereinafter SLS), a substance abuse and mental health facility located in Brewster, New York. According to the agreements governing patients-clients treated at SLS, enrollment in the facility’s various programs was "voluntary." However, the agreements also stated that "a member" must give 30 days prior written notice of intention to "leave the program." There is no language in the agreements specifically governing a procedure whereby a member is permitted to temporarily leave the facility. The plaintiff alleges, however, that on August 16, 2006, the day before the murder, officials at SLS gave Marshall a "pass" to leave the facility for the ostensible reason of visiting his mother in Glen Cove. The plaintiff also alleges that Marshall was given the keys to his car and was permitted to leave the facility with $900 in cash, which he had earned from a part-time job while he was in treatment.
Upon arriving on Long Island, Marshall allegedly bought cocaine and then went to his mother’s house, where he apparently spent the night. On August 17, 2006, at approximately 8:30 A.M., Marshall allegedly drove his car onto a footpath in Glen Cove and intentionally struck a woman who had been jogging thereon. Later that morning, Marshall rang the doorbell at Denice Fox’s home and forced his way into the house. He then proceeded to murder Ms. Fox and dismember her body, which he then transported to his mother’s house. Ultimately, the crime was discovered and Marshall was arrested. He has since pleaded guilty to, inter alia, the crimes of murder in the first degree and burglary in the first degree.

The Supreme Court denied the motion [to dismiss] and cross motions holding, inter alia, that a mental health facility may owe a duty to protect the public from the actions of an outpatient where there is evidence that the facility has the ability to control the patient’s actions and has knowledge that the patient may be a danger to himself and others. The Supreme Court also found that the allegations, if proven, would establish that Jacqueline Marshall owed a duty of care to the decedent. We modify and conclude that the Supreme Court should have granted those branches of the motion and cross motions which were to dismiss the cause of action alleging medical malpractice, and [*3]should have granted Jacqueline Marshall’s separate cross motion to dismiss the complaint insofar as asserted against her. "

"In the case at bar, Marshall was not involuntarily confined to the SLS facility. Nonetheless, the SLS defendants and the SLS employees exercised a certain level of authority and control over Evan Marshall. Although the degree of such control is unclear at this stage of the case, the mere fact that Marshall appeared to need a facility-issued pass in order to visit his mother suggests that he was not completely free to leave the facility (cf. Purdy v Public Adm’r of the County of Westchester, 72 NY2d at 9 – "[the patient] could come and go as she pleased"). The record also discloses that the SLS defendants and the SLS employees were aware of Marshall’s severe psychological problems. Accordingly, accepting the facts as alleged in the complaint as true, and according "every possible favorable inference" to the plaintiff (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d at 87), the complaint herein sufficiently alleges a cause of action in negligence against the SLS defendants and the SLS employees (see Rivera v New York City Health and Hospitals Corporation, 191 F Supp 2d at 421; see also Williams v State of New York, 84 AD3d 412).

However, under the circumstances of this case, the absence of any doctor-patient relationship between the decedent and the SLS defendants or Stumacher precludes a cause of action based on medical malpractice. It has long been recognized that, as a general rule, the sine qua non of a medical malpractice claim is the existence of a doctor-patient relationship. Indeed, it is this relationship which gives rise to the duty imposed upon the doctor to properly treat his or her patient (see Bazakos v Lewis, 12 NY3d 631, 634; Payette v Rockefeller Univ., 220 AD2d 69, 72; Ellis v Peter, 211 AD2d 353; Heller v Peekskill Community Hosp., 198 AD2d 265; LoDico v Caputi, 129 AD2d 361, 363; see also Speigel v Goldfarb, 66 AD3d 873, 874). Therefore, a doctor’s "duty of care is ordinarily only one owed to his or her patient" (Purdy v Public Adm’r of the County of Westchester, 72 NY2d at 9), and correspondingly, the element of duty would normally be missing from a claim made against a doctor by one who is not that doctor’s patient. "

Plaintiff sues attorneys for a divorce situation in which he alleges they represented both him and his wife, and lost about $1 million for him in the proceedings.  His complaint, in Verdelis v Landsman ; 2011 NY Slip Op 32196(U); August 8, 2011; Sup Ct, NY County; Docket Number: 651767/10; Judge: Judith J. Gische survives both a CPLR 3211(a)(1)  and (a)(7) motion, yet is dismissed on the basis that it was brought 3 years + two weeks after the judgment of divorce was entered.  The Court finds that the cause of action accrued on the date of entry of the judgment of divorce.

"Plaintiff claims that Defendants were retained to represent him in an uncontested divorce  proceeding, Daphne Sirneon v. Konstanhos Verdelis, 30981 1/07, (the “Underlying Action”) involving his ex-wife, Daphne Simeon (“Sirneon”). Defendants deny the allegations and bring this pre-answer motion to dismiss the complaint based upon: (I) a defense founded on documentary evidence (CPLR 3 321 1 [a][l]), (2) the expiration of the statute of limitations (CPLR § 321 1 [a][5]),
and (3) failure to state a cause of action (CPLR 5 3211 [a][7]). Plaintiff opposes the
motion."

"Plaintiff alleges that in 2007, the defendants failed to inform him that they were not representing him. Specifically, Plaintiff claims that the Defendants improperly rendered legal advice to him and they did not advise him that there were adverse interests between him and his wife. Plaintiff claims that Simeon told him that the defendant’s fees were $5,476 and that he was to pay 1/2 of the fees by paying Simeon $2,738. Plaintiff further alleges that the Defendants protected Simeon to his disadvantage, and that they failed to advise him that he was entitled to equitable distribution of the marital assets that totaled approximately $2,000,000. Plaintiff also claims that they did not advise
him to seek outside counsel before he waived his right to approximately $1,000,000 in
distributable assets"

"Although the attorney-client relationship is contractual in nature, formality is not an essential element to its formation. Talanskv v. Schulman, 2 A.D.3d 355, 358 (1st Dept. 2003). An attorney-client relationship may exist where an attorney was involved in the drafting, preparation and execution of a separation agreement, even though the attorney did not negotiate its terms or provide advice to the plaintiff. Shanlev v Welch, 31 A.D.3d 1127 (2006); see also Leon v Martinez, 84 NY2d 83 (1 994) (plaintiffs pleaded enough to infer existence of attorney-client relationship where defendant attorneys had drafted agreement between their client and plaintiffs in which client agreed to pay portion of lawsuit proceeds to plaintiffs ). Allowing the complaint a liberal construction and taking into account the Plaintiffs submissions, Plaintiff has sufficiently pleaded a cause of action for legal malpractice."

"Defendant’s documentary evidence relied upon by defendants does not  conclusively, taken in a light most favorable to the Plaintiff, eliminate the possibility that an attorney-client relationship existed between Plaintiff and Defendants. Therefore, the Motion to Dismiss pursuant to CPLR 5 321 l(a)(i) is denied."

"A cause of action for legal malpractice based upon a divorce proceeding accrues on the date the
Judgment of Divorce was actually entered. Zorn v. Gilbert, 8 N.Y.3d 933 (2007). See, McCoy, supra, at 205 (Holding that the plaintiff had a cause of action on the day the divorce judgment was filed with the County Clerk’s office and as a result, plaintiffs claim was time barred as she brought it more than three years later). Consequently, Plaintiffs argument that his claim accrued when he was mailed the Judgment of Divorce is rejected. Based on the foregoing, Plaintiff was required to commence his action for legal malpractice against the Defendants by October 5, 201 0. Since the instant action was not commenced until October 18, 201 0, by the filing of a Summons with Notice, it is untimely under the applicable statute of limitations period. Plaintiffs First Cause of Action, for Legal Malpractice must therefore be dismissed as time-barred pursuant to CPLR 3321 I (a)(5).
This cause of action is time barred by statute."

In this recurring situation, plaintiff has both a California and a NY connection, and hired an attorney to do some work, which eventually goes sour.  Frequently a case like this comes up in the entertainment field, with its CA and NY roots.  As an example, Basilotta v Warshavsky ; 2011 NY Slip Op 32185(U); August 2, 2011; Sup Ct, NY County; Docket Number: 115525/09; Judge: Paul Wooten shows how the short CA statute of limitations (1 year) undermines the longer NY statute (3 years).

"During the 1980’s plaintiff was a singer known for her popular 1982 song Hey Micky.  At all relevant times she has been a California resident.  In or about 2003, non party Fallon Inc produced a television commercial for the non-party Subway restaurant franchise that featured Micky without Plaintiff’s knowledge or consent.  Subsequent to becoming aware of this commercial, plaintiff retained defendant Oren J. Warshavsky, who at the time worked at defendant law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione (“Gibbons”).’ Plaintiff alleges that she retained Warshavsky and Gibbons I) to seek compensation for the unauthorized use of Mickey in the commercial, and 2) to clarify her ownership rights to the Mickey master recordings. The retainer agreement between the parties was strictly contingency-fee based, and defines the scope of the retainer as “regarding all causes of action."

The gist of the legal malpractice case is that the attorneys got a settlement offer of $ 35,000 and when plaintiff did not accept, sent a letter to a successor attorney advising him of their position that, among other things, plaintiff had terminated her relationship with Gibbons in December, 2006.

The later legal malpractice case revolved around the ownership and exploitation of the master recordings and whether Gibbons was to blame for legal malpractice. Under CPLR 202, a cause of action accruing in a jurisdiction outside  NY must be timely both in NY and in that other jurisdiction. 

In legal malpractice, where the demanded relief is monetary damages, the site of loss is the plaintiff residence,  On this basis, the complaint was dismissed.

Chiantella v Kroll ;2011 NY Slip Op 32140(U) ;July 19, 2011 ;Sup Ct, Nassau County; Docket Number: 019337/07; Judge: Jeffrey S. Brown is a case that seems strange on all fronts.  Son is the beneficiary of mother’s trust, yet when she dies, he seems held hostage by the attorneys of the estate.  Since the estate has a single beneficiary, the administrations seems top-heavy.  This situation inevitably leads to accusations of financial wrongdoing.  Tax refund checks go awry and accountings are demanded.  Is this legal malpractice, and might the beneficiaries attorney be liable for legal malpractice too?

"In this legal malpractice action, the plaintiff seeks to recover damages allegedly caused by the defendant attorneys ‘ negligence and mishandling in representing him with respect to his mother s Trust and Estate. The plaintiffs mother Lucy Chiantella created the Lucy Chiantella Revocable Trust on November 6, 2002. Bernard Vishnick and Lucy Chiantella were Co-Trustees and John Gavros
was named Successor Co-Trustee in the event that Vishnick or Chiantella ceased to serve.
Pursuant to the Trust, the plaintiff was to receive the monthly payments of principal and interest
on mortgages and notes held by the Trust immediately upon the Trust’s receipt thereof and the
Trust’ s income was to be distributed to him at least anually. The Trust provided that if the
plaintiff survived his mother, one-third of the Trust’ s assets would be paid to him at her death
one-half of the remaining Trust assets would be paid to him on the third anniversary of her death
and the remainder of the Trust assets would be paid to him on the seventh anniversary of her
death. In the event that the plaintiff died without issue before all of the assets were distributed
the Trust balance was to be paid to various religious entities. The plaintiffs mother also made a
will which devised all of her residuary estate to the Trust. The plaintiff was the sole named
legatee. The plaintiff and Vishnick were Co-Executors of the Estate.
 

The plaintiffs mother died on April 14 , 2003.
 

Shortly thereafter, conflict regarding Vishnick’ s handling of the Estate developed.  Via his first cause of action, the plaintiff has alleged malpractice and breach of contract based upon the defendants ‘ failure to procure all of the benefits to which he was allegedly entitled under the Trust and Estate. Plaintiff challenges the defendants ‘ failure to enforce the Trust and procure his mortgage income distributions upon their receipt, his annual distributions of Trust income and entire first and second Trust distributions. He also challenges the defendants ‘ failure to interpose objections to Vishnick’ s Estate accounting and to procure an accounting of the Trust and to have him removed as Co-Trustee and Co-Executor. He also challenges the defendants ‘ failure to properly defend him in the holdover proceeding and counseling him to enter into the June 22, 2006 Settlement whereby he agreed to purchase property to which he was already entitled pursuant to the Trust which caused him the loss of an immediate distribution to which he was also entitled pursuant to the Trust, and counseling him to renounce a portion of mortgage income to which he was also entitled pursuant to the Trust. This plaintiff avers, was all done to generate counsel fees. The plaintiff now seeks to amend the first cause of action to include the defendants ‘ failure to procure his final distribution under the Trust at the seventh anniversary of his mother s death and to obtain a satisfaction of the mortgage which was placed on the Little Neck property pursuant to a June 22, 2004 Settlement.

As and for his second cause of action, the plaintiff seeks to recover damages for inter alia the defendants ‘ negligence in failing to properly advise him regarding his verses the Trust  and Estate s obligations for taxes; to properly defend him against Vishnick’ s allegations that he stole money from the Trust, including the temporary restraining order; and, for counseling him to enter into September 11 , 2006 Settlement and in part falsely representing his consent thereto  in his release of Vishnick. The plaintiff seeks to amend his second cause of action to include andamages the defendants ‘ failure to challenge Vishnick’ s failure to make the third distribution at
the seventh anniversary of his mother s death as required by the Trust; the defendants
withdrawal of the objections to Vishnick’ s Estate accounting with prejudice; and their failure to
seek an accounting by Vishnick of the Trust.

The proposed Second Amended Complaint does no more than identifY with greater specificity the damages allegedly incurred by the plaintiff as a result of the defendants ‘ alleged negligence , some of which have only been realized since the commencement of this action. That those claims emanate from an agreement between plaintiff and Vishnick and that the plaintiff is precluded from recovering from Vishnick hardly serves to insulate the defendant attorneys pursuant to the doctrine of res judicata. Furthermore, whether the plaintiffs inability to recover ofVishnick is owing in whole or part to his attorneys mishandling of the special proceeding does not lay to rest the question of the defendants negligence and require that leave to amend be denied.

It’s not as simple as one might think.  in Young v Quatela ;2011 NY Slip Op 32143(U); July 18, 2011;Sup Ct, Nassau County;Docket Number: 601658/09;Judge: Thomas Feinman we see how family and representation might be stretched or constricted based upon circumstances.

"The plaintiff moves by way of Order to Show Cause for an order (1) disqualifying the law firm of’ L’Abbate , Balkan, Colavita & Contini, LLP, from further representation in this case because of unauthorized ex pare contact with the plaintiff and plaintiff s father, (2) sanctioning defendant Joseph Quatela and the law firm of’ L’Abbate , Balkan, Colavita & Contini, LLP, awarding plaintiff
attorney s fees, (3) striking the Answer of defendant, Joseph Quatela based upon his misconduct, (4) suppressing any evidence improperly obtained by the defendants, (5) quashing a subpoena calling for the testimony of Raymond M. Young, (hereinafter referred to as "Sr. ), father of Raymond
Young, (hereinafter referred to as "plaintiff’ and " Jr. ). While the movant’s motion , by way or Order to Show Cause, seeks to disqualify the law firm of’ L’Abbate , Balkan, Colavita & Contini, LLP, (hereinafter referred to as the "law firm ), " because of ex pare contact with plaintiff and plaintiff s father , (emphasis added), counsel’ s affirmation in support of the motion only refers to purported ex pare communications with Sr. only, not plaintiff/Jr. , a par in this action.

Plaintiff s counsel later avers that he was retained to represent Sr. in a federal action brought by plaintiffs wife, Deborah Young, against Sr. and defendant, Joseph Quatela, whereby Deborah Young apparently claimed that the defendants wrongfully gained access to her home, while the
matrimonial action between Deborah Young and plaintiff/Jr. was pending. Although the plaintiff has not provided this Court with the name or action number of such federal action, the defendants have annexed a copy of the summons of the civil action entitled Deborah Young, Individually and as the parent and natural guardian of Melissa Young, Emmalee Young and Cecelia Young v. Suffolk County, Suffolk County Department of Social Services, Suffolk County Police Department, Michael Delgado, Joseph Quatela, Edmond Coppa, Individually and Edmond Coppa Photography, Raymond L. Young, Raymond M Young, News Newsday, New York Post, New York Daily News, CBS TV. COM bearing Index Number CV -3325/09, pending in the United States District Court for the Eastern District of New York, to the defendants ‘ crossmotion. The plaintiff, Deborah Young, and the infant plaintiffs, allege that the defendants essentially violated their civil rights. The plaintiffs allege inter alia that on or about February 21 2007, Jr. and others , brought garbage, debris, urine, feces and other matters into the premises and strewn them about, creating unsanitary,  uninhabitable and unsafe conditions while plaintiff left her residence for vacation. The complaint in the federal action also alleges that after Jr. trashed the premises, he summoned workers, friends, his father, the police, his attorney, (defendant herein, Joseph Quatela), the Department of Social Services, the media and others, defaming, embarrassing, ridiculing and humiliating the plaintiff, Deborah Young, and their three children. Thereafter, the complaint provides that the plaintiff children were placed into the custody of the Department of Social Services. 

The plaintiff, in the instant action, provides that the February 21 , 2007 incident drew a
significant amount of media coverage, and therefore, plaintiffs ex-wife brought the federal action.
Plaintiffs counsel submits that he learned that defendant, Joseph Quatela, and defendant’ s counsel
had an ex pare communication with Sr. with respect to a proposed affidavit prepared for Sr.
 signature, as a result of receiving of notice for a deposition, and submits such communication
violates 22 NYCRR 1200 and DR 7- 104(A)(I), and warrants disqualification.

Such is one of the allegations in Chiantella v Kroll, 2011 NY Slip Op 32140(U); July 19, 2011; Sup Ct, Nassau County, which was recently decided by Justice Brown.  The fact pattern suggests that what is discussed is simply the tip of the otherwise submerged iceburg.  How this situation arise is not fathomable.  Here are the facts:

"In this legal malpractice action, the plaintiff seeks to recover damages allegedly caused by the defendant attorneys ‘ negligence and mishandling in representing him with respect to his mother s Trust and Estate. The plaintiffs mother Lucy Chiantella created the Lucy Chiantella Revocable Trust on November 6, 2002. Bernard Vishnick and Lucy Chiantella were Co-Trustees and John Gavros
was named Successor Co-Trustee in the event that Vishnick or Chiantella ceased to serve.
Pursuant to the Trust, the plaintiff was to receive the monthly payments of principal and interest
on mortgages and notes held by the Trust immediately upon the Trust’s receipt thereof and the
Trust’ s income was to be distributed to him at least anually. The Trust provided that if the
plaintiff survived his mother, one-third of the Trust’ s assets would be paid to him at her death
one-half of the remaining Trust assets would be paid to him on the third anniversary of her death and the remainder of the Trust assets would be paid to him on the seventh anniversary of her
death. In the event that the plaintiff died without issue before all of the assets were distributed
the Trust balance was to be paid to various religious entities. The plaintiffs mother also made a
will which devised all of her residuary estate to the Trust. The plaintiff was the sole named
legatee. The plaintiff and Vishnick were Co-Executors of the Estate.

The plaintiffs mother died on April 14 , 2003.  Shortly thereafter, conflict regarding Vishnick’ s handling of the Estate developed. When faced with Vishnick’ s attempt to evict him from his lifelong home at his mother s Little Neck property, which had devolved to the Trust at her death, the plaintiff sought removal of Vishnick as Trustee and Co-Executor via prior counsel. When that attorney was discharged, the plaintiff retained the defendants via a retainer agreement dated May 14 2004. The retainer agreement provided that the defendants were retained to represent the plaintiff "in connection with the Estate of his mother and matters related thereto. " The plaintiff alleges that via the retainer agreement, he retained the defendants to represent him both as a beneficiary of the Trust and Estate and in his capacity of Co-Executor of the Estate. Ultimately, the plaintiff, represented by the defendant Martin Kroll of Kroll, Moss & Kroll, executed a Stipulation of Settlement on June , 2004 which provided that he was purchasing the Little Neck property which was owned by the Trust for $475 000. , towards which he was receiving a credit of$101 300. 36 as part of his initial Trust distribution; that the balance was to be paid to the Trust via a purchase money mortgage with six percent interest which balance including principal and interest was due on the seventh anniversary of his mother s death; and, that the plaintiff would procure life insurance
benefits of $375 000. 00 payable to the Trust. Via that Settlement, as part of his initial Trust
distribution, the plaintiff also acquired his mother s Rocky Point property which was valued at
$117 500. 00 and had also devolved to the Trust at her death

So, we are left to wonder why plaintiff bought a house that was his already, and why he took out a mortgage on money that was his already?

Lessons:  A party seeking leave to amend his/her complaint bears the burden of demonstrating that the proposed amendments are not palpably insuffcient or patently devoid of merit. See Zeleznik v MST Const.. Inc , 50 AD3d 1024 (2 Dept. 2008). "Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing part (see CPLR 3025(b)), the
motion should be denied where the proposed amendment is palpably insufficient or patently
devoid of merit." Ferrandino & Son. Inc. v Wheaton Builder. Inc.. LLC, 82 AD3d 1035 (2
Dept. 2011), citing Scofield v DeGroodt, 54 AD3d 1017, 1018 (2 Dept. 2008); Lucido v
Mancuso, 49 AD3d 220, 227 (2 Dept. 2008). Legal malpractice may be predicated on an
il-advised settlement agreement. Steven L. Levitt & Associates. P. C. v Balkin, 54 AD3d 403
Dept. 2008); Fusco v Fauci, 299 AD2d 263 (1 sl Dept. 2002).