In Crawford v Himmelstein ; 2011 NY Slip Op 31669(U); June 20, 2011; Supreme Court, New York County; Docket Number: 115432/10; Judge: Donna M. Mills we see a straightforward analysis of a typical legal malpractice case.  Client is being pursued by landlord to give up three apartments, on the basis of owner-personal use.  (Put aside why a rent stabilized tenant could have three apartments?).  Case is litigated, and plaintiff eventually settles for $ 300,000 and one year grace period.  At the end of the grace period, tenant does not want to move out, and eventually sues attorney for malpractice. Plaintiff loses.

"To prevail in a legal malpractice action, a plaintiff must show that the attorney “failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community” (Volpe v Canfield, 237 AD2d 282,283  that such negligence was the proximate cause of their damages, and that, but for the attorney’s negligence, the plaintiff would have prevailed oh the underlying claim (see Rau v , Borenkoff, 262 AD2d 388.

Here, the plaintiff claims that Himmelstein failed to file a motion for summary judgment or proceed to trial on the issue of the owner landlord’s immigration status relating to the underlying holdover proceeding. In addition to the immigration issue, plaintiff claims there were a number of real estate irregularities surrounding the way the house was sold which was never explored sufficiently by Himmelstien. However, Himmelstein submitted documentary evidence establishing that between May 2004 and November 2007, the parties engaged in lengthy motion practice which involved significant discovery battles. It is quite apparent that Himmelstien was litigating vigorously on plaintiffs behalf before the parties decided to settle.  Plaintiff has failed to demonstrate a meritorious cause of action for legal malpractice (Tortorello v Carlin, 286 AD2d 628 [2001]), there being insufficient evidence that “but for” defendants’ alleged negligence in not filing a motion for summary judgment or going to trial in lieu of settling the underlying action, plaintiff would have achieved a more favorable result (Wexler v Shea & Gould, 1 1 AD2d 450 . The record establishes that the parties with the assistance of the court in the underlying action, voluntarily decided to settle the matter instead of proceeding to trial. Moreover, Himmelstein offers a reasonable strategy as to why they did not make a motion for summary judgment. Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby
exposing themselves to liability for malpractice (Dweck Law Firm v Mann, 283 AD2d 292,
293 [2001])."

Sometimes the critics are right.  Legal malpractice cases are sometimes simply a reflex and are brought because the attorney is the last person standing.  Carr v Hayes; 2011 NY Slip Op 31655(U); June 17, 2011; Supreme Court, New York County ;Docket Number: 104602-10;
Judge: Saliann Scarpulla appears to be such a case.

"Carr commenced this action by summons and complaint dated April 8,2010. In i is complaint, Cam alleges that his ex-wife, Clements; her attorney in the matrimonial action, who also represented him at the closing of the real estate transaction, Hayes; and his attorney in the matrimonial action, Regina L. Darby (“Darby”), colluded to commit fraud and converted his assets. Cam also alleges that Hayes and Darby breached their fiduciary duty to him and committed legal malpractice. In the matrimonial action Carr and Clements entered into a stipulation of settlement that was incorporated into the judgment of divorce. Pursuant to the settlement, Carr agreed to pay $25,000 of his wife’s legal fees as well as all of his own legal fees. These fees were to be paid from one of a few sources. One of the sources named was the proceeds of the sale of 65 Walker Avenue, Sag Harbor, NY 11963. The stipulation of settlement states that the fees “shall be paid to both lawyers prior to the distribution of any monies to the Husband and Wife.” In accordance with the stipulation of settlement, after the Sag Harbor property was sold, Hayes wrote checks to settle the fees of Darby and herself outstanding from the matrimonial action. Hayes disbursed the remainder of the sale proceeds to Carr and Clements

Carr has failed to allege any facts that could support a cause of action for fraud or aiding and abetting fraud. Carr has simply stated, without factual support, that Darby and Hayes have defrauded him. He repeatedly refers to the Closing Statement provided by Hayes as “fraudulent” and describes the copies of negotiated checks provided by Hayes as “fictitious.” However, at no point in his pleadings or in his affidavit in opposition to defendants’ motion to dismiss does Carr allege facts to show that these documents are forgeries or otherwise fiaudulent. Without some alleged facts or Circumstances to base his claims upon, Carr’s fraud claims must necessarily fail. Merely reciting the elements of fraud is not sufficient to plead fraud under CPLR 3016 ).

The short answer is No.  The longer answer, and an explanation is found in Jean-Baptiste v The Law Firm of Kennth B. Mock; 2011 NY Slip Op 31540(U) ;May 26, 2011; Sup Ct, Nassau County
Docket Number: 20409/10 ;Judge: Antonio I. Brandveen.

"[T]the Second Deparment holds: "(a) plaintiff is not obligated to show, on a motion to dismiss, that it actually sustained damages. It need only plead allegations from which damages attributable to the defendant’s malpractice might be reasonably inferred (see Kempfv Magida 37 AD3d 763 , 764 (2007); see also InKine Pharm. Co. v Coleman 305 AD2d 151 (2003); Fielding v Kupferman 65 AD3d 437 442 (2009); Rock City Sound, Inc. v. Bashian Farber, LLP 74 A.D.3d 1168, [2 Dept, 2010)). This Court viewed the complaint in the light most favorable to the
plaintiff, yet this plaintifffails to show the existence of an attorney-client relationship
between him and the defendant, and the alleged legal malpractice was not a proximate
cause of any damage to the plaintiff. The plaintiff here does not plead allegations from
which damages attributable to the defendant’s malpractice might be reasonably inferred."

How many ways might a simple house sale contract go wrong?  Aromino v Van Tassel ;  2011 NY Slip Op 51058(U) ; Decided on June 6, 2011 ; Civil Court Of The City Of New York, Richmond County ; Straniere, J. points out a plethora.
 

Plaintiffs contract to buy a house, and give a down payment of $ 35,000.  They discover structural problems.  They hire an inspector.  Sellers did not agree, and send a "Time of the Essence letter."  Buyers resist and do not come to the closing.  Seller relents and sends a "cure letter."  The cure letter set November 8, 2006 as the closing date.  On November 6, sellers attorney wrote a letter saying that he was going to release the down payment on November 7, 2006 and mailed it by regular mail.  Of course the letter did not arrive until after November 8.

What was done wrong?  "This cure letter, issued six days after the alleged "time of the essence" closing was scheduled, gave the purchasers thirty-four days to appear for the closing. It also asserts a position which negates the intention of the "time of the essence" letter because it states: "If your client fail [sic] to cure said default, my clients [sic] intend to deem the contract canceled and retain as and for liquidated damages, all sums paid by Purchaser and will pursue other rights under the contract and law." Seller is withdrawing its previous declaration of the purchaser being in default and the contract breached, by stating that the client has not yet "deemed" that the contract has been canceled and seller only "intends" to cancel the contract. [*10]

Further negating the "time of the essence" is the fact that O’Sullivan sent the letter on October 5, 2006 to Strazzullo offering purchasers the opportunity to cure their default especially after having received a letter from Strazzullo dated September 18, 2006 rejecting the "time of the essence" closing and demanding a return of the deposit. Although this letter does not specifically state that the purchasers are canceling the contract, it makes an unequivocal demand for the return of the deposit. Based on this letter, seller could have claimed an anticipatory breach as of the date of receipt of the Strazzullo letter and sought to assert and enforce seller’s contract rights at that point and in any case, after the "time of the essence" closing date. There was no need to grant the purchasers an opportunity to cure in view of the fact there does not appear to be any evidence that the purchasers were interested in performing the contract.

The final action negating the "time of the essence" demand, is the fact that O’Sullivan in the October 5, 2006 letter gave the purchasers until November 8, 2006 to cure, yet on November 7, 2006 O’Sullivan released the escrow deposit to the seller. This was one day prior to the cure date. Even if giving the purchasers a date by which to cure their default was not required by the contract, once seller unilaterally afforded the purchasers the opportunity to do so O’Sullivan was required to wait until after November 8, 2006 to release the money; assuming he had a right to do so. "

Based on the court’s findings set forth above, O’Sullivan was not permitted to release the down payment to his client. Assuming however, that he either did properly make "time of the essence" and that he believed he was acting lawfully and in good faith, could O’Sullivan release the escrow? The answer is an unequivocal "NO."

First, paragraph 27 setting forth how the deposit would be treated states: "At Closing, the down payment shall be paid to Seller upon consummation of the closing…." The closing never took place. The contract, which was drafted by seller’s attorney, could have provided for release of the deposit upon a default by either party to the non-defaulting party, yet it did not. Because the seller drafted the contract, it must be construed against the seller.

Second, for some totally incomprehensible reason, seller’s attorney drafted paragraph 27 as if this were a contract subject to General Business Law Article 23-A, the statute commonly referred to as the Martin Act. As noted in the footnote in reference to that paragraph, there is no evidence that the property in question is subject to that law. In fact, paragraph 7 of the contract referring to the existence of a "home owners [sic] association" has been deleted from the agreement. Referance to the non-exisiting offering plan was not deleted from paragraphs 12 & 33. The only explanation would seem to be that seller’s attorney either cut and pasted this contract from another one in his computer or he adopted a contract drafted by some other practitioner without fully comprehending the significance of the paragraph.

The above being said, seller’s counsel voluntarily subjected himself to the requirements promulgated by the New York State Department of Law. These regulations are found in New York Code, Rules and Regulations (13 NYCRR §22.3). Prior to releasing any monies held in escrow, O’Sullivan had to comply with the procedure set forth in that regulation. The rules provide (13 NYCRR §22.3(k)(2)(vii)): "

The more important basis for purchasers seeking the refund of their deposit is the alleged structural defects discovered by Coull Building Inspections. This report is dated July 20, 2006, apparently after the parties executed the undated contract of sale. It should be noted that the contract did not give the purchasers a right to have a structural inspection nor did it make the agreement subject to a structural inspection. In fact, the common practice in Richmond County is for a potential purchaser to have a structural report prior to signing a contract in regard to the resale of a home. Although not prohibited, to seek one in the case of new construction is highly unusual. Had the purchasers been concerned about the structural integrity of the house, their counsel could have either negotiated having the structural inspection done before the contract was signed, or as a clause permitting cancellation of the contract after signing based on items in the structural report. Counsel for the purchasers did neither.

Before getting into an analysis of the Coull report, the court must note that as of December 31, 2005, six months before the undated contract was signed, the legislature passed legislation requiring that all home inspectors be licensed (Real Property Law Article 12-B, Home Inspection Professional Licensing). The report from William Coull fails to indicate that either he or the business was in fact properly licensed. No license number is disclosed any where in the document. In fact, disclosure of this information is required by the statute "on every home inspection report and in all advertising" (RPL §444-g). "
 

Judiciary Law 487 is an attorney related statute that derives from one of the oldest English laws, carried over to New York statutes.  It is over 700 years old, in its earliest version.  inBaker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuworth, LLC v Comprehensive
 Mental Assessment & Medical Care, P.C.; 2011 NY Slip Op 31385(U) ;May 10, 2011
Sup Ct, Nassau County ;Docket Number: 016008/2007; Judge: Ira B. . Warshawsky defines the elements of JL 487 and then finds that a cause of action is stated.

Judiciary Law 487(1) permits injured third parties to recover treble damages when an attorney engages in ‘ any deceit or collusion or consents to any deceit or collusion, with intent to deceive the court or any par. ‘ " The plaintiffs must show evidence of either intent by the defendants to deceive or a chronic and extreme pattern of legal delinquency which proximately caused their damages. Connell v Kerson, 291 AD2d 386 (2 Dept. 2002). "Moreover, the alleged deceit when not directed at a court must occur during a pending judicial proceeding (citations omitted). Elmowitz v McCormick Dunne & Foley, 30 Misc 3d 1209 (A) (Supreme Court New York County 2010), citing Jacobs v Kay, 50 AD3d 526, 527 (1 Dept. 2008); Costalas v Amalfitano, 305 AD2d 202 203-204 (1 st Dept. 2003).

Contrary to Barshay s allegations, the defendants have adequately stated a claim against him to recover under Judiciary Law 487. The defendants have alleged that "(t)he partners failed to provide business records and accounting(s); the partners failed to hand over funds collected on settled cases; (plaintiffs) failed to make timely court and arbitration filings.Checks payable to defendants (were placed) in partner accounts; settlement checks issued by insurance carriers. . . were deposited into Partnership s accounts; plaintiffs compromised defendants ‘ causes of actions , particular in a bulk settlement with AIU Insurance Company, and a bulk settlement with GEICO Insurance Company;  (P)artners took possession of the settlement funds from both Bulk
Settlements;" and that " (P)artners failed to inform defendants of the receipt of funds resulting from both Bulk Settlements. . . (and) deposited settlement funds from Bulk Settlements into (plaintiffs) bank accounts." The defendants have alleged that Sanders & Grossman, P. , Baker Barshay, LLP and the Partnership as well as all of the additional defendants improperly represented to adversaries as well as the courts in the course of judicial proceedings related to their no-fault claims that they represented them and that they had the authority to settle their claims when they did not and that they settled those claims at a significant discounted rate causing them substantial damage. A claim pursuant to Judiciary Law 9 487 has clearly been stated."

In this case, Plaintiff made such a persuasive argument that Supreme Court granted summary judgment and the AD affirmed.  Failing to tell a client about title problems is legal malpractice, says the AD in Ehrenhalt v Kinder ; 2011 NY Slip Op 05194 ; Decided on June 16, 2011 ; Appellate Division, First Department . 
 

Put simply:  "Defendant’s failure to inform plaintiff of the defects in title to the apartment when he learned of them was a failure "to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession," and this failure resulted in actual damages to plaintiff (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]).

Defendant’s contention that plaintiff’s motion is premature because more discovery is required is unsupported by any evidence suggesting that additional discovery will lead to further relevant evidence (see CPLR 3212[f]; Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001 [2007]; Duane Morris LLP v Astor Holdings Inc., 61 AD3d 418 [2009]). "

T&V Constr., Inc. v Margolin; 2011 NY Slip Op 31598(U); June 3, 2011; Sup Ct, Nassau County
Docket Number: 0834/08 ;Judge: Anthony L. Parga demonstrates that no good deed goes unpunished.  In short, after getting divorced, plaintiff is told that his ex can’t pay the mortgage on the old marital home.  He has his own company purchase the mortgage and trades the mortgage payments for maintenance.  Later, ex wants to sell the house, so he buys it from her.  His attorney is tasked with the transaction, and especially with filing the deed.

The deed is not filed, and several years later ex sells the house to a third-party.  Now litigation begins, and the legal malpractice case commences.  "Plaintiffs argue in their opposition that "
but for" the defendants deed in lieu ‘  or take other steps to protect plaintiffs ‘ rights , Garcia could not have committed fraud in transferring the property to another. Plaintiffs also contend that Garcia fraud in reselling the premises was a foreseeable possibility and that Garcia s intentional break the causal nexus where the act could have been foreseen. (.f)ee s actions do not
of City of New York Bell v. Board of Educations 90 N.Y.2d 944 (1997))

Plaintiff argues, contrary to the defendants, that this is not a circumstance where subsequent counsel had a sufficient opportunity to protect plaintiffs ‘ rights or correct the prior counsel’ s errors, as the harm was already done at the time new counsel was retained and the new counsel could not prevent the injury itself. Lastly, plaintiffs submit that any judgment collected against Garcia would be uncollectible as she has  viable assets that are free from liens and/or judgments.

Defendants’ motion for summary judgment against T & V is denied as there are several questions of fact regarding whether the defendants’ negligence was a proximate cause of plaintiff T & V’s alleged damages.

Scott v Fields ; 2011 NY Slip Op 05043 ; Decided on June 7, 2011 ; Appellate Division, Second Department  is not the first mortgage-legal malpractice case, but it appears to be the most extensively written 2d department opinion in one.  Here, as in most mortgage fraud cases, there is a straw buyer, the belief that owner is getting their house saved for them, and disaster.  Plaintiff brought the case a few months too late, and legal malpractice is dismissed on the statute of limitations.
"The plaintiff alleges that the defendants conspired to defraud her of her real property by causing her to believe that she was refinancing the mortgage on her home when, in actuality, she was conveying her property to the defendant Sherran Fields. In the complaint filed on March 25, 2009, the plaintiff asserted causes of action sounding in conversion, conspiracy, fraud, implied contract, breach of fiduciary duty, and malpractice. The Supreme Court granted those branches of the separate motions of the defendants Kecia J. Weaver and Kecia J. Weaver, P.C. (hereinafter together Weaver), and the defendants Stella Azie and Stella Azie, P.C. (hereinafter together Azie), which were to dismiss the complaint insofar as asserted against each of them pursuant to CPLR 3211. The Supreme Court also denied that branch of the plaintiff’s motion which was pursuant to CPLR 3025(b) for leave to amend the complaint. We affirm the order insofar as appealed from."

The remaining two causes of action asserted against Weaver, alleging breach of fiduciary duty and professional malpractice, are time-barred. The statute of limitations for a breach of fiduciary duty cause of action depends on the substantive remedy which the plaintiff seeks (see Loengard v Santa Fe Indus., 70 NY2d 262). Where the relief sought is equitable in nature, the statute of limitations is six years, and where the relief sought is purely monetary, the statute of limitations is three years (see Monaghan v Ford Motor Co., 71 AD3d 848). Here, the cause of action against Weaver alleging breach of fiduciary duty seeks purely monetary damages, and, under the circumstances, a three-year statute of limitations applies. The claimed breach occurred during the closing on November 25, 2005. As such, the cause of action to recover damages for breach of fiduciary duty is time-barred insofar as asserted against Weaver (see CPLR 3211[a][5]). Similarly, the cause of action to recover damages for professional malpractice were also properly dismissed insofar as asserted against Weaver. The statute of limitations for a legal malpractice claim is three years (see CPLR 214[6]; Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749). The alleged legal malpractice occurred on November 25, 2005, and, as such, the claim of professional negligence, i.e., legal malpractice, is time-barred (see CPLR 3211[a][5]). Contrary to the plaintiff’s contention, the continuous representation doctrine is inapplicable. The complaint did not allege there was a mutual understanding that Weaver’s legal representation of the plaintiff would continue after the closing (cf. Lytell v Lorusso, 74 AD3d 905). "