A Long Island practitioner persisted in moving and appealing, and the AD rewarded him with reversal of the dismissal of two of the causes of action in his case.  In Hoffman v Colleluori
2011 NY Slip Op 05669  Decided on June 28, 2011 ; Appellate Division, Second Department we see the AD calculating the statute of limitations for plaintiff, and his ability to sue.
 

"The Supreme Court erred in, upon reargument, adhering to its original determination granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(1) and (7) to dismiss the second and third causes of action to recover damages for legal malpractice. "A motion to dismiss pursuant to CPLR 3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law" (Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018 [internal quotation marks and citation omitted]; see Arnav Inds., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303).

Accepting all the facts alleged in the complaint as true, the allegations are sufficient to state a cause of action to recover damages for legal malpractice in an underlying federal civil rights action. The plaintiff alleged in his complaint, inter alia, that the defendants failed to assert the underlying causes of action before the expiration of the applicable statutes of limitations, and that their negligence was a proximate cause of his damages (see Jennings v Raso, 251 AD2d 380, 380). While most of the underlying causes of action were time-barred before the plaintiff retained the [*2]defendants, the plaintiff’s claim under 42 USC § 1983 arising from malicious prosecution was viable at the time the defendants commenced the federal action on the plaintiff’s behalf (see Palmer v State of New York, 57 AD3d 364, 364; Pendelton v City of New York, 44 AD3d 733, 737). Moreover, contrary to the defendants’ contention, the complaint "set forth allegations from which damages attributable to the defendant[s’] alleged malpractice might be reasonably inferred" (Caruso, Caruso & Branda, P.C. v Hirsch, 41 AD3d 407, 410; see Fielding v Kupferman, 65 AD3d 437, 442).

The Supreme Court also erred in, upon reargument, adhering to its original determination granting those branches of the defendants’ motion which were pursuant to CPLR 3211(a)(1) to dismiss the legal malpractice causes of action. A motion pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Thompsen v Baier, 84 AD3d 1062). Here, the documentary evidence did not conclusively establish that all of the underlying causes of action were time-barred before the plaintiff retained the defendants. "

Legal proceedings in foreclosure settings have ebbed and flowed over the years.  Right now there is a tremendous backlog in the cases, mostly as a result of tightened rules.  The concept of Robosigners has recently been in the news, and this case highlights the dangers to bank attorneys in foreclosures.  HSBC Bank USA, N.A. v Taher ;2011 NY Slip Op 51208(U) ;Decided on July 1, 2011 ;Supreme Court, Kings County ;Schack, J.
 

"In this foreclosure action, plaintiff HSBC BANK USA, N.A., AS INDENTURE TRUSTEE FOR THE REGISTERED NOTEHOLDERS OF RENAISSANCE HOME EQUITY LOAN TRUST 2007-2 (HSBC), moved, upon the default of all defendants, for an order of reference and related relief for the premises located at 931 Gates Avenue, Brooklyn, New York (Block 1632, Lot 57, County of Kings). Before considering plaintiff HSBC’s instant motion, I issued a decision and order, dated November 8, 2010, instructing plaintiff’s counsel, to comply with the requirements of Chief Administrative Judge Ann T. Pfau, in her Administrative Order 548/10 of October 20, 2010, that an affirmation be submitted "within sixty (60) days of this decision and order, or the instant foreclosure action will be dismissed with prejudice."

"On plaintiff HSBC’s deadline day, January 7, 2011, the 60th day after issuing my November 8, 2010 decision and order, plaintiff’s counsel, Frank M. Cassara, Esq., of Shapiro, DiCaro & Barak, LLC, submitted to my chambers the required affirmation, pursuant to Chief Administrative Judge Pfau’s Administrative Order 548/10. Mr. Cassara, affirmed "under the penalties of perjury":

"Mr. Cassara’s affirmation, affirmed "under the penalties of perjury," that to the best of Mr. Cassara’s "knowledge, information, and belief, the Summons and Complaint, and other papers filed or submitted to the [*4]Court in this matter contain no false statements of fact or law," is patently false. Moreover, the Court is troubled that: the alleged representative of plaintiff HSBC, Christina Carter, who according to Mr. Cassara, "confirmed the factual accuracy and allegations set forth in the Complaint and any supporting affirmations filed with the Court, as well as the accuracy of the notarizations contained in the supporting documents filed therewith," is not an employee of HSBC, but a robosigner employed by OCWEN LOAN SERVICING, LLC [OCWEN], whose signature on legal documents has at least three variations; the MERS to plaintiff HSBC assignment of the subject mortgage and note was executed by Scott W. Anderson, a known robosigner and OCWEN employee, whose signature is reported to have appeared in at least four different variations on mortgage assignments; and, the instant affidavit of merit was executed by Margery Rotundo, another robosigner, OCWEN employee and self-alleged employee of various other banking entities. "

Read on through the long discussion of robosigners, to the end.

American Lawyer reports that legal malpractice claims are on the rise in the US.

"Law firms are being hit with significantly more malpractice claims in 2011 than they were in 2010, according to a new survey of insurers that specialize in legal malpractice coverage. The sputtering economy and a sagging real estate market are the main culprits.
The survey–which covers the first six months of the year and was conducted by broker Ames & Gough–found that the volume of malpractice claims is up by between 11 and 20 percent at one insurance company so far this year.
The insurers polled by Ames & Gough–AXIS Insurance, Beazley Group, Berkley Select, CNA, Lexington Insurance, and Hartford Financial Services Group–collectively provide legal malpractice coverage to about 75 percent of large and midsize firms in the United States.
In addition to the company that said its claims’ rate has jumped by as much as 20 percent, three others said they have seen claims rise by between 6 and 10 percent. The remaining two said their claims rates have remained stable so far this year. (Ames & Gough did not identify which of the surveyed insurers fell into which category and did not analyze the merits of any claims.)
The survey cited real estate practices as the most likely to be sued, with "conflict of interest" and "failure to file timely" as the most common claims. Real estate claims, Ames & Gough notes, have been on the rise for the past three years, thanks to the large volume of transactions that occurred between 2005 and 2008 and the collapse in property values that followed amid the country’s broader financial collapse. The twin forces have prompted many parties to try to recoup real estate losses any way they can, according to Ames & Gough. "
 

In Legal Malpractice the question of a statute of limitations often arises.  Legal malpractice accrues on the date that the mistake is made, not on the day plaintiff discovers it.  Continuous representation allows plaintiff to continue to use the attorney, and does not require an immediate suit,  In Aronov v Law Off. of Roman Popik, P.C.;2011 NY Slip Op 31739(U);June 23, 2011;Sup Ct, NY County;Docket Number: 116100/09;Judge: Debra A. James we see one variant of the problem. 

Attorney represented client in the drafting of a partnership break-up and negligently drafted the non-compete portion so that it failed to restrain the retiring partner from competing.  It mistakenly restrained the remaining partners from competing against the retiring partner.

Law firm then represented the clients in a series of related litigations, but there were big time gaps between.  Was this continuous?

"It is undisputed that the defendants not only drafted the agreement that is the source of the  malpractice obligations, but represented the plaintiffs in subsequent litigation concerning
the agreement. appeals resulted in summary judgment being awarded against the
plaintiffs dismissing their claims in May 2005.  over the agreement apparently recommenced in August 2008 when the former partner sought to restore the action to t h e calendar and sought judgment on counterclaims against the plaintiffs. On June  2, 2009, the Appellate Division, Second Department awarded The initial phase of the litigation including The litigation summary judgment against the plaintiffs on monetary claims under the agreement. The defendants represented the plaintiffs in the entirety of the litigation. This court therefore finds that the plaintiffs are entitled
to the application of the continuous representation toll and that their claim f o r malpractice is timely. The defendants continuously represented plaintiffs w i t h respect to the agreement
provisions that are the subject of the malpractice claims (see Antoniu v Ahearn, 134 AD2 d 151, 152 -153 [1st Dept 1987) and therefore defendants motion pursuant to CPLR 3211 (a) (5) must be granted" (typo?)

It is a rare case in which a legal malpractice cause of action is upheld against the other side’s attorney.  Privity of contract is the first thing one thinks about when gauging whether there can be a legal malpractice case.  Here, in Ginsburg Dev. Cos., LLC v Carbone ; 2011 NY Slip Op 05664
Decided on June 28, 2011 ; Appellate Division, Second Department  we see the rare occasion in which legal malpractice may lay against the other side’s attorney.

"Accepting the facts alleged in the second amended complaint as true, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the second amended complaint states a cause of action to recover damages for legal malpractice (see Aranki v Goldman & Assoc., LLP, 34 AD3d 510). "While privity of contract is generally necessary to state a cause of action for attorney malpractice, liability is extended to third parties, not in privity, for harm caused by professional negligence in the presence of fraud, collusion, malicious acts or other special circumstances" (Good Old Days Tavern v Zwirn, 259 AD2d 300, 300; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595; Nelson v Roth, 69 AD3d 912, 913; Aranki v Goldman & Assoc., LLP, 34 AD3d at 511-512; Moran v Hurst, 32 AD3d 909, 910-911). Although the second amended complaint does not allege an attorney-client relationship between the plaintiff and the defendants, the allegations in the second amended complaint "fall within the narrow exception of fraud, collusion, malicious acts or other special circumstances under which a cause of action alleging attorney malpractice may be asserted absent a showing of actual or near-privity" (Aranki v Goldman & Assoc., LLP, 34 AD3d at 512 [internal quotation marks omitted]). Moreover, the documentary evidence does not establish, as a matter of law, a defense to the third cause of action. Thus, we modify the order appealed from accordingly. "
 

Attorney fee disputes often blossom into legal malpractice cases, although Stephan B. Gleich & Assoc. v Gritsipis ; 2011 NY Slip Op 05483 ; Decided on June 21, 2011 ; Appellate Division, Second Department is not one of these.  Nevertheless, it is one of the longest attorney fee disputes in memory. The case itself started in 1993 as the AD tells us:
 

"An affidavit of service reflects service upon the defendant on September 7, 1993, by delivery of a copy of the summons with notice to a person of suitable age and discretion named Evelyn Monterosa at the defendant’s place of business.

A clerk’s judgment was thereafter executed on February 7, 1994, for the requested sum of $66,875.41, plus statutory costs and disbursements in the sum of $370, for a total judgment in the sum of $67,245.41 (hereinafter the 1994 judgment).

The plaintiff commenced a second action against the defendant on March 17, 2009, by the filing of a summons and complaint in the Supreme Court, Nassau County, under Index No. 09-006753 (hereinafter the 2009 complaint). The plaintiff alleged that no portion of the 1994 judgment had been satisfied, that more than 10 years had passed since the judgment was docketed, and that the judgment should be renewed pursuant to CPLR 5014(1). The defendant answered the 2009 complaint, asserted affirmative defenses, and separately moved under the index number of the 1993 action, inter alia, to vacate the 1994 judgment.
 

Contrary to the defendant’s contention, the plaintiff properly obtained jurisdiction over him under CPLR 308(2). The affidavit of the plaintiff’s process server constitutes prima facie evidence of proper service (see Matter of Perskin v Bassaragh, 73 AD3d 1073; Prospect Park Mgt., LLC v Beatty, 73 AD3d 885; Pezolano v Incorporated City of Glen Cove, 71 AD3d 970, 971; Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525; Jefferson v Netusil, 44 AD3d 621). The defendant’s failure to recall the person of suitable age and discretion who was served, without specific facts of the identity of his employees, employment records, payroll records, or affidavits from others, fails to rebut the process server’s affidavit (see Interlink Metals & Chems. v Kazdan, 222 AD2d 55, 56; see also Pezolano v Incorporated City of Glen Cove, 71 AD3d at 971; Sturino v Nino Tripicchio & Son Landscaping, 65 AD3d 1327; Silverman v Deutsch, 283 AD2d 478, 478-479). Thus, there is an insufficient basis to vacate the 1994 judgment for lack of jurisdiction under CPLR 5015(a)(4).

Clerks’ judgments may nevertheless be vacated pursuant to CPLR 5015(a)(1) where the [*3]defendant demonstrates both a reasonable excuse for the default and a potentially meritorious defense to the action (see Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673; see generally Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141; Gray v B. R. Trucking Co., 59 NY2d 649, 650; Yao Ping Tang v Grand Estate, LLC, 77 AD3d 822; Zanani v Schvimmer, 75 AD3d 546, 547; Li Gang Ma v Hong Guang Hu, 54 AD3d 312, 313). The defendant failed to establish a reasonable excuse for his default since the only excuse he proffered was that he was not served with process. Moreover, we agree with the Supreme Court that the defendant also failed to establish a potentially meritorious defense to the action. Contrary to the defendant’s contention that the legal services were rendered solely to his corporation, the documentary evidence, including the invoices for legal fees incurred and the pleadings in the earlier landlord-tenant litigations, establish that the defendant was an individually named party in those actions who received individualized legal services. Other issues that the defendant raises as to the invoices themselves speak to the specific amount of damages, and not to liability or to his default in the 1993 action.

III. The Clerk’s Judgment Under CPLR 3215(a) The defendant’s argument that the clerk of the court lacked authority to enter a judgment is raised for the first time on appeal. However, where, as here, an argument presents an issue of law appearing on the face of the record which could not have been avoided if raised at the proper juncture, it may be considered by an appellate court (see Parry v Murphy, 79 AD3d 713; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d at 673; Chrostowski v Chow, 37 AD3d 638, 639; Beepat v James, 303 AD2d 345, 346; Hanna v Ford Motor Co., 252 AD2d 478). The nature of this appeal warrants the exercise of our discretion in reaching on its merits the issue of the propriety of the clerk’s judgment. "

BLT reports that the Wilmer law firm may well have to pay $ 214 million in legal malrpactice settlement fees, all depending on a case in which they have no say. From the article:

"Wilmer Cutler Pickering Hale and Dorr is facing the prospect of making $214 million in payments to one of its clients, in what would be an unusually large settlement of a malpractice claim.

Whether Wilmer will be forced to make the payments is still up in the air, depending largely on the outcome of litigation and on legislation moving through Congress. William Perlstein, Wilmer’s co-managing partner, who signed a settlement in February outlining the possible payments to New Jersey-based pharmaceutical company The Medicines Co., said on Tuesday he’s confident it will prove unnecessary.

The amount of money at stake potentially puts the case among the largest public settlements for legal malpractice ever, people who work in the field say.

The malpractice claim has its origins a decade ago, when Wilmer was representing The Medicines Co. in its bid to extend the patent for Angiomax, an anti-blood-clotting drug. The U.S. Patent and Trademark Office ruled that Wilmer lawyers filed the extension application at least a day after a key deadline — a decision that threatened to cost the drug company five years of exclusive drug sales.

In a major win for Wilmer and The Medicines Co., a federal judge last year vacated the patent office’s decision and cleared the way for the patent extension to go forward. If nothing changes, Wilmer is not expected to have to pay the $214 million.

The issue is still alive, though, because one of the drug company’s competitors has appealed to the U.S. Court of Appeals for the Federal Circuit. The case is pending there. (The patent office decided not to appeal.)

The agreement Wilmer signed in February is a contingency in case the Federal Circuit reverses or there’s another unexpected development. So, if a generic version of Angiomax is sold in the United States before June 15, 2015 as a result of the deadline issue, the firm would owe $214 million, $99 million of which would be covered by the firm’s insurance."
 

Client hires attorney for divorce, and the attorney works through the end of the divorce. There are ancillary matters (QDRO) that follow, and more than three years later, client is sued over the late husband’s life insurance policy.  She hires the same attorney, and is later sued for lega fees. She counterclaims for legal malpractice arsing from the divorce, not the insurance case.  Is the case late?

Supreme Court answers yes, in Ursprung v Verkowitz; 2011 NY Slip Op 31723(U); June 14, 2011
Supreme Court, Nassau County; and determines that there must be actual continuous representation, and not a general sense that the attorney is still representing client, albeit not in any actual litigation.  Her representation was litigative, not transactional.

:"Contrary to Ursprug’s contentions, the doctrine of continuous representation is
inapplicable to toll the statute of limitations in the instant action as the matrimonial action during
which attorney Verkowitz allegedly committed the malpractice was concluded on February 27
2004, and Verkowitz’s representation of the plaintiff for the matrimonial action ceased at that
time. The particular transaction which is the subject of this malpractice action had ended in
2004, even if one accepts that a general professional relationship continued. (See, Zaref v. Berk
& Michaels , 192 A.D.2d 346 595 N.Y.S.2d 772 (Ist Dept. 1993)). Furher, as the plaintiff
was no longer "acutely aware of such need for further representation on the specific subject
matter underlying the malpractice claim " the defendant’ s representation on the matter had ceased
at that time. (Shumsky v. Eisenstein 96 N.Y 2d 164, 750 N.E.2d 67 (2001); Carnevali
Herman 293 AD.2d 698, 742 NYS. 2d 85 (2d Dept. 2002)). Attorney Verkowitz
representation of Ursprug in the subsequent insurance matter was pursuant to a separate and
subsequent retainer agreement, which was entered three years after the matrimonial action which was concluded on February 27 2004. As such, the within action for legal malpractice is bared
by the expiration of the statute of limitations. Even accepting plaintiffs arguments that attorney  Verkowitz s inquiries regarding Chrstopher Ursprug’s QDRO filings on behalf of Ursprug are evidence of a continuation of the matrimonial matter, the administrative tasks related to the QDRO were completed on September 12 2006, when Verkowitz forwarded a copy of the August 18 2006 QDRO order to Ursprug. Accordingly, even accepting the later date of September 12, 2006 as the conclusion of Verkowitz s representation ofUrsprug for the matrimonial action, the within legal malpractice action, filed on January 24 2011 , is bared by the statute of limitations."