Law firm is retained by A and knows that A and B have a contractural relationship.  During the representation A notifies the law firm that if the case is settled some money will be given to B.  By the time that the case is actually settled, A rescinds the advice and tells the law firm to give all the money to A and none to B.  Does B have a cause of action against the law firm for non-payment?

In Ulu v Turkotrans Intl. Transp. Co., Ltd. ;2011 NY Slip Op 31803(U) ;July 1, 2011; Sup Ct, NY County; Judge: Barbara R. Kapnick sets the rules:
"Next, the third cause of action for breach of contract alleges that "defendants have breached their agreement to pay the Balance Due to Plaintiff from the Settlement Amount." (Compl. ¶ 34.) Defendant Law Firm argues that if plaintiff is alleging a breach of a contract between himself and the Law Firm, the claim fails because plaintiff never had an agreement directly with the  Law Firm with respect to the monies at issue in this case, or any matter relevant thereto, and that plaintiff has not provided any evidentiary support for the existence of such an agreement. If on the other hand, plaintiff is alleging a breach of a contract that existed between himself and Sensoz/Turkotrans, then the defendant argues that the claim cannot stand as against the Law Firm, because the Law Firm was not party to such an agreement. In his motion papers, plaintiff argues that an agreement
existed between plaintiff and the Law Firm, based on a series of emails, which required the Law Firm to transfer a portion of the settlement funds to plaintiff. Plaintiff cites the following deposition testimony of Mr. Vengrow, to show that there was a contract between plaintiff and the Law Firm:

Plaintiff also argues that he performed all of his obligations under the alleged agreement by paying the legal fees and expenses, but that t h e Law Firm failed to perform when it declined to transfer a  portion of the settlement funds to him and that he sustained damages as a result.  The issue here is whether a contract was actually formed between plaintiff and the Law Firm by virtue of the e-mail
communications between the parties and/or plaintiff’s payment of legal fees.  "The elements of a breach of contract claim are formation of a contract between the parties, performance by the  plaintiff, the defendant’s failure to perform, and resulting damage (citation omitted) .

 

The requirements for the formation of a contract are at least two parties with legal capacity to contract, mutual assent to the terms of the contract  and consideration. 2 P J I 4:l at 638-39 (2011) ; see also Maas v . Cornell Univ . , 94 NY2d 8 7 , 93-4 (1999)*   Consideration exists if
there is "a benefit to the promisor or a detriment to the promisee" and "it is enough that something is promised, done, forborne or suffered by the party to whom the promise is made as consideration for the promise made to him." Weiner v. McGraw-Hill, I n c . , 57 NY2d 458, 464 (1982) (internal citations omitted). In the instant case, the February 28th E-mail is clearly not
a contract between Ulu and the Law Firm; it is a communication from Sensoz to the Law Firm, which confirms Sensoz’s instructions to the Law Firm. To the extent that plaintiff is alleging that there was an o r a l agreement between himself and the Law Firm, the Court rejects this contention as well, finding that Ulu did not receive consideration from the Law Firm for his payment of the legal fees.

There is no evidence that Ulu paid the legal fees in exchange for either (1) a promise that the Law Firm would do something for him; (2) the Law Firm had done something for him; or (3) the Law Firm’s forbearance of any acts. See Weiner v. McGraw-Hill, Inc., supra at 464. Accordingly, the Court finds that the Law Firm has established its entitlement to summary judgment dismissing the
fourth cause of action, insofar as it is pled against it.

The answer to today’s question is "quite a ways."  Without further comment, here is Breytman v Schechter ; 2011 NY Slip Op 51375(U) ; Decided on July 22, 2011 ; Supreme Court, Kings County
Schack, J.
" In my prior February 8, 2011 decision and order, I granted defendants summary judgment and dismissed the instant action with prejudice. However, despite the dismissal with prejudice, plaintiff BREYTMAN now moves for various relief, including what the Court deems a motion to reargue. The Court, for reasons that will be explained, finds the instant motion "frivolous." It is completely without merit in law and undertaken primarily to harass and maliciously injure defendants SCHECHTER and the Court. After giving plaintiff BREYTMAN a reasonable opportunity to be heard and reviewing all papers submitted and the oral argument transcript, the instant motion is denied. Costs and sanctions are imposed upon plaintiff BREYTMAN for frivolous conduct."
 

"The following are some examples of plaintiff BREYTMAN’s outrageous and offensive statements. Plaintiff begins his affidavit in support of the motion by stating, in ¶ 1, "I Alexander Breytman the last of the Mohicans have chutzpah to make this affidavit in support and against dishonorable Arthur M. Schack Universe and Donald Schechter Galaxy and Karl Marxist and Fredrick Engels’ fuzzy Machiavellian order selling snake oil, legally deficient full of holes like Swiss cheese where I can fly space shuttle through [sic]." Further, at ¶ 5, plaintiff informs the Court "Your order is unconstitutional and I do not have to follow, lead or get out of the way, you just overruled by Pro se, how you like them apples [sic]." Then, at ¶ 11, he states, "I am immune from your dishonorable illegal order that is unconstitutional and therefore is null and void and is in effect under lock and key [sic]." Plaintiff, in ¶ 18, calls the Court "Your dishonor," claims that the Court is "both a communistic argument or fascist which for all intent and purposed are the same dam thing [sic]" and informs the Court that "You and your compadres are the problem that plagues this world and not a solution kapish'[sic]." Moreover, plaintiff states: in ¶ 26, "Your dishonorable unconstitutional hypocritical order is meaningless and I do need to comply at all [sic]"; in ¶ 27, "Your dishonor futile attempt to muzzle me only prolongs my pain and suffering [sic]"; and, in ¶ 31, "I am not your sheep for a slaughter. You try but will fail to set my world on fire rather it is your universe that will burn . . . I will rise like Phoenix out of ashes and will reverse your malicious Swiss cheese order . . . You and Schechter only prolong my pain and [*5]suffering and this I cannot and will not live with. I will do my crying in the rain. Donald Schechter Eureka moment is short lived [sic]."

Moreover, plaintiff did an internet search about the Court, reciting personal information about myself and my family that appeared in the New York Times on August 31, 2009, which is totally irrelevant to the instant motion. For example, he wrote, in ¶ 16, "You were a union representative and once walked a picket line with his wife . . . who was a teacher, too . . . Ooh schools in US suuuuuucccccckkkkkkssssss . . . You are not supposed to be picketing with UFT and quiet unethical conduct [sic]." Then, in oral argument, plaintiff attacked me for engaging in picketing, which occurred years before I became a judge, let alone a Member of the Bar. It is not a secret that years before my election as a judge I was a New York City teacher, United Federation of Teachers Chapter Chairman and on strike in 1968 and 1975. Yet, at p. 26, lines 5 – 22, plaintiff engaged in slander, equating events of 1968 and 1975 with the present"

"Clearly, the pattern of plaintiff BREYTMAN’s conduct in the instant action is subject to costs and sanctions. Plaintiff’s arguments in his papers, in support of the instant motion, and in the June 14, 2011 oral argument are replete with threatening, defamatory and malicious statements about defendants SCHECHTER and the Court. They are frivolous and "completely without merit in law or fact." Plaintiff BREYTMAN failed to make any specific allegations that the Court misapprehended or overlooked any matters of fact and law. The instant motion is but another example of plaintiff’s continued harassment of defendants and abuse of the judicial process, with the addition of personal invective and animus directed at the Court. The instant motion prolonged this litigation and attempts "to harass or maliciously injure" defendants SCHECHTER and the Court. In this time of budgetary cuts, combined with increased caseloads, the Court does not need to waste its scarce resources to be the arena for plaintiff BREYTMAN’s personal vendettas against defendants and the Court.

Therefore, based upon the totality of plaintiff BREYTMAN’S frivolous conduct in making the instant motion, the Court finds it is appropriate to award costs of $1,700.00 to defendants SCHECHTER for 10 hours of attorney’s fees at $170.00 per hour. Further, for the waste of judicial resources and "to deter vexatious litigation and dilatory or malicious litigation tactics" by plaintiff BREYTMAN, the Court, in its discretion, imposes financial sanctions of $2,500.00 upon plaintiff BREYTMAN. "
 

 

Plaintiff sues defendant as ABC, Esqs. and later finds out that the firm really is ABC, LLP.  What are the consequences and how does one remedy the situation?  One answer is given in Koch v Kyong Min  2011 NY Slip Op 31951(U)  June 29, 2011  Sup Ct, NY County  Judge: Emily Jane Goodman

However, not having properly named the partnership defendant herein is not entirely fatal to Plaintiff. In Lolly v Brookdale Hosp. Med. Ctr. (37 AD3d 428 [2nd Dept 20071), the appellate
court stated the following, in relevant part:  Despite having been incorrectly named aa ‘The Brookdale University Hospital and Medical Center” in a prior action … involving the same alleged misconduct, and asserting essentially the same causes of action as those pleaded in the instant complaint, the defendant herein represents that it has, in fact, been defending the prior action, that it has never disclaimed responsibility for the individual employees and residents’ identified in the prior action, and that ’a judgment ultimately entered against The Brookdale University Hospital and Medical Center will have the same effect as a judgment entered against The Brookdale
Hospital Medical Center.” Ba sed on these representations, this action was properly dismissed
pursuant to CPLR 3211(a) (4).  Id., at 428-429 (citations omitted). See also Velez v Union
Sanitordum Assn., Inc. , 64 NY2d 1119 (1985) (affirming dismissal of subsequent action where defendant in a prior action answered that complaint and atated that its name as sued in that action
was the proper entity allegedly responsible for the injuries, and Plaintiff also acknowledges that New York Partnership Law permits abbreviations ‘in addition to the registered name,” and
that it would be possible to amend the pleadings in the Related Action “to Incorporate the contents of this Complaint.“where plaintiff accepted the answer without objection).
 

Here, the record reflects that (I) Raguea & Min, Eaqs., the defendant named in the Related Action, had answered the complaint in that action and is defending that action; accepted the answer in the Related Action; issues of law and fact involving both the Related Action and the instant action; (4) the complaint in the Related Action pleaded causes of action that are essentially the same as in this action; and ( 5 ) the defendant herein has requested that "this action be diamissed as there is prior action pending againat Ragues & Min and no valid excuse to sue the firm once more here on the same grounds."

Courts seem to scrutinize the question of damages to a higher degree in legal malpractice litigation.  Break a leg in a slip and fall, and the Court will never review an x-ray on a motion for summary judgment; have a car crash and no court will call in the body-shop guy on the question of whether there was really damage to the bumper.  However in Legal Malpractice, there will be extensive review of actual v. ascertainable damages.  In Fielding v Kupferman 2011 NY Slip Op 31983(U) ;July 12, 2011;Supreme Court, : 113572/07;Judge: Eileen A. Rakower we see one such example. After analysis, and a motion to reargue, summary judgment is granted to defendants.
 

"This action, sounding in attorney malpractice, arises from a stipulation of settlement in a divorce action, wherein defendants represented plaintiff. Specifically, the alleged malpractice involves defendants advising plaintiff to sign the settlement agreement, which required that a 1.2 million dollar payment be made “within 30 days after the execution [of the stipulation of settlement] . . . in
immediately available funds.” Plaintiff claims that funds were not immediately available, as stated, and he failed to make payment as required. Plaintiff brought this action, and defendants moved to dismiss. The Appellate Division, reversing Justice Walter Tolub’s dismissal, found that, accepting plaintiffs allegations as true, the stipulation may constitute evidence of defendants’ negligence. Further, “a pleading need only state allegations from which damages attributable to the
defendant’s conduct may reasonably be inferred.” They went on to say that “at this early stage of the proceedings, plaintiff is not obliged to show that he actually sustained damages, but only that damages attributable to defendants’ conduct might be reasonably inferred.”

"Defendants later moved for summary judgment dismissing this action as against them. Defendants urged that any damages were pure speculation, and that plaintiff could not sustain his burden of showing, by proof in admissible form, that he suffered non speculative and ascertainable damages as a result of entering into  the stipulation of settlement which required that payment be made within 30 days in immediately available funds. This Court, after oral argument and by Decision and Order dated December 14,20 10, denied the motion. That decision is currently on appeal. Defendants now move to reargue. Defendants’ motion to reargue is granted and, upon reargument, defendants’ motion for summary judgment is granted."
 

"Finally, the question turns to whether plaintiff has shown “actual damages.” Assuming a jury were to find that the attorney negligence was the proximate cause of sending plaintiff through the many hoops he claims he had to jump through in order to meet his responsibility of paying approximately 1.2 million dollars within 30 days, the question remains, did plaintiff show that he suffered actual damages. Plaintiff claims that even if he suffered nominal damages, a finding in his favor would require defendants to disgorge back to plaintiff all of the fees they charged in representing plaintiff in his divorce action. "

Car strikes pedestrian and pedestrian sues driver.  Driver notifies its insurance company, and from there on in, the insurance company is in charge.  Everything’s good, no?  In this case, definitely not.

Kaur v American Tr. Ins. Co. ;2011 NY Slip Op 05938 ;Decided on July 14, 2011 ;Appellate Division, First Department shows just how wrong things can go, and how the insurance company is left on the hook for $ 3.6 million dollars on a $ 100.000 policy.
 

"On March 3, 2003, Major Singh was injured when he was struck by a car owned by Gladys Towncars, Inc. (Gladys) and operated by Jose Grullon. On April 7, 2003, Singh and his wife, Sarbjeet Kaur, commenced a personal injury action against Gladys and Grullon claiming damages in the amount of $5 million. Upon the failure of Grullon’s insurer, American Transit Insurance Company (ATIC), to answer or appear in the suit, Supreme Court, Bronx County (Norma Ruiz, J.), entered a default judgment on April 6, 2005, against Gladys and Grullon in the amount of approximately $5.4 million. On July 5, 2007, this Court reduced the judgment to approximately $3.6 million and otherwise affirmed (42 AD3d 313 [2007]). "

Plaintiff Kaur, who was appointed temporary receiver of the judgment debtors Gladys and Grullon with respect to the causes of action possessed by Gladys and Grullon, brought the instant action on March 3, 2008, alleging, inter alia, legal malpractice [FN1]. Plaintiff claims that ATIC’s in-house counsel, Norman Volk & Associates, P.C. (Volk) failed to represent Gladys and Grullon in accordance with good and accepted legal principles and practices. Plaintiff further asserts that [*2]Baker, McEvoy, Morrissey & Moskovits, P.C. (BMMM) is liable as Volk’s successor for the alleged malpractice.

By notice of motion dated September 12, 2008, BMMM moved for summary judgment dismissing the complaint against it on the grounds that it is not a successor to Volk, and has not merged or consolidated with Volk. In support, Ronit Moskovits, a partner at BMMM, submitted an affidavit stating that none of the principals of BMMM were principals of Volk, BMMM had not represented Gladys or Grullon in the underlying action, and BMMM had not assumed any of Volk’s liabilities.

 

In this case, it is clear that the attorneys who worked at Volk continued to work exclusively as counsel for ATIC under BMMM. McEvoy affirmed that all of BMMM’s partners had been attorneys at Volk, that BMMM would hire a majority of Volk’s employees, and BMMM would maintain the same office location and phone number as Volk. He further stated that BMMM was formed for the express purpose of assuming and continuing Volk’s business.

BMMM’s argument that it cannot be a "mere continuation" because Volk survived the transaction "as a distinct, albeit meager, entity" (Schumacher, 59 NY2d at 245) is unavailing. John McEvoy affirmed that Volk’s entire caseload consisted of its representation of ATIC, and that Volk was retiring as ATIC’s attorney of record and from daily practice. Thus, when BMMM was substituted for Volk, Volk’s business was effectively ended (cf. Schumacher, 59 N.Y.2d at 245; see also Woodson v American Tr. Ins. Co., 292 AD2d 160 [2002]). "

 

Attorneys are notaries, simply for the asking.  Notarized documents form the backbone of a legal system which relies upon their accuracy and deems the documents genuine.  The system of legal documents in NY (forget aboutt the rest of America) would come to a screeching halt in the absence of recognition of notarized documents.  What liability does a notarty (especially an attorney notary) have for mistakes?

in Koch v Kyong Min; 2011 NY Slip Op 31951(U); June 29, 2011; Sup Ct, NY County; Judge: Emily Jane Goodman we see a well reasoned discussion:

"The complaint alleges, inter alia, that Ms. Min violated New York Executive Law 5 135, which provides, in relevant part "[flor any misconduct by a notary public in the performance of any of his [or her powers auch notary public shall be liable to the parties injured for all damages sustained by them."

"Assuming, arguendo, that the consent form was notarized outside of Plaintiff’s presence or that her signature was forged, any violation of Executive Law 5 135 is irrelevant, because the statute provides that any damages must be related to the alleged notarial misconduct. Rastelli v Gassman, 231 AD2d 507, 508 (2d Dept 1996)("There I s no cause of action for notarial
misconduct abaent injury and there can be no injury unless a , plaintiff can demonstrate that he or she relied to his or her detriment upon the alleged misconduct of the notary"); Saleh
Holdings Group, Inc. v Chernov, 30 Misc3d 1220(A) , 2011 NY Slip Op 50142(U)(Sup Ct, NY County 20ll)(plaintiff must show alleged loss was proximately caused by alleged fraudulent  notarization).detriment upon the alleged misconduct of the notary"); Saleh Holdings Group, Inc. v Chernov, 30 Misc3d 1220(A) , 2011 NY Slip Op 50142(U)(Sup Ct, NY County 20ll)(plaintiff must show alleged loss was proximately caused by alleged fraudulent notarization)."

A legal malpractice case involving $2.5 million dollars in legal fees survived a motion to dismiss, and will continue. Brendon Pierson of the  The NYLJ reported yesterday  that Justice Gische of Supreme Court, New York County decided motions.

"Winston & Strawn must face a $2.5 million malpractice suit from former shareholders of pharmaceutical company Biosynexus for allegedly botching the 2005 sale of the company, a Manhattan judge has ruled.

In OrbiMed v. Winston & Strawn, 13708/10, Supreme Court Justice Judith J. Gische (See Profile) allowed to go forward two of three claims in the suit, which was filed by medical investment firm OrbiMed on behalf of all Biosynexus’ former shareholders. The shareholders claimed Winston & Strawn failed to disclose details of Biosynexus’ licensing agreements while the shareholders were negotiating the company’s sale to the hedge fund QVT Fund LP. As a result of that alleged failure, the shareholders claim they spent $2.5 million suing QVT in order to get paid in full for the $56 million sale.

Biosynexus was a private, closely held company with about 35 shareholders, including OrbiMed, which also held a seat on the company’s board of directors, according to Justice Gische’s decision. The company licensed one of its key products, an antibody called A110 used to prevent bacterial infection, from the Henry M. Jackson Foundation. Under the terms of that license, Biosynexus was allowed to sublicense the product to other companies as long as the sublicense included a provision that the sublicensee agree to all the terms of the original license. In 2002, Biosynexus sublicensed the product to Glaxo Group Ltd., but did not include that mandatory provision, according to Justice Gische.

Both the license with the Jackson Foundation and the sublicense were drafted by Winston & Strawn through its attorney Gerald Farano, who is now a partner at Jones Day and is not a party in the lawsuit. Mr. Farano was also a shareholder in Biosynexus"
 

OK, George Clinton was not exactly our first choice for music.  After Jobim, Steely Dan, David Bromberg, he almost always came next.  We are more interested, however, in his legal malpractice story.  Here, without further embellishment is a very interesting article  from the Hollywood Reporter.com.

"George Clinton is taking some revenge on the law firm that sought to garnish his wages over unpaid legal bills. On Monday, the funk pioneer filed a $10 million lawsuit against Hendricks & Lewis for legal malpractice, fraudulent inducement, and breach of contract.

Long-time readers of this blog will know that Clinton’s name has been connected to a number of aggressive — sometimes trailblazing — legal actions, including lawsuits over samples and trademarked phrases like "Bow wow wow yippe yo yippie yay."

In February, Hendricks & Lewis looked to garnish Clinton wages for $1.7 million owed and described its arbitration battles with the musician over legal fees. At the time, it appeared that Clinton’s heavy litigation appetite had proven too costly, but in truth, determining who’s responsible for the historically bullish litigation is extremely complicated. "  Read on…
 

We admit that this case has us a little confused.  In Pollan v Attie ;2011 NY Slip Op 51285 (U)decided on July 11, 2011 ;Supreme Court, Nassau County ; Marber, J. we see a plaintiff with a car accident personal injury case.  Attorney 1 stipulates to an arbitration with a high low.  It seems not to be arbitrated.  The court case is dismissed for failure to prosecute.  Attorney 2 is retained, more than a year later.  It is unclear whether he is retained to take over the car case or to sue attorney 1.  He does not restore the case, and eventually, he is sued. 
 

The kicker comes in the middle of the opinion, when the judge tells us that there was an arbitration award.  Because of this, all counts of the case are dismissed.  Question?  Why wasn ‘t the arbitration award part of the factual setting by the judge?

"With particular respect to the First cause of action, the Plaintiff alleges that due to the Defendant, Attie’s, malpractice, she "was caused to lose her right to recover" in the personal injury action (see Verified Complaint at ¶ 38). However, inasmuch as that action has proceeded to arbitration, which resulted in the Plaintiff receiving an award in connection thereto, the allegations contained in the within complaint are plainly contradicted by the record (Doria v. Masucci , 230 AD2d 764 [2d Dept. 1996], supra; Mayer v. Sanders, 264 AD2d 827 [2d Dept. 1999], supra). Moreover, given the Plaintiff’s arbitration award, the Plaintiff has suffered no damages proximately caused by the Defendant’s purported malpractice (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007], supra).

Accordingly, the First cause of action is hereby DISMISSED. "