We think there is.  It’s hiding inAccess Point Med., LLC v Mandell ;2011 NY Slip Op 30866(U)
April 8, 2011 Supreme Court, New York County Docket Number: 102082/2010

Here is how it goes.  Generally in legal malpractice or in breach of fiduciary duty the statute of limitations begins to run on the date of the malpractice.  Forgetting about continuous representation, the date of the malpractice is often easily calculated.  Many battles are fought over what that date is, and there is no "discovery" statute of limitations.

However,  “[a] tort claim accrues as soon as ‘the claim becomes enforceable, Le., when all elements of the tort can be truthfully alleged in a complaint”’ (id, at 140 [internal citation omitted]). Similarly, in other torts in which damage is an essential element, the claim “is not enforceable until damages are sustained. To determine timeliness, we consider whether plaintiff’s complaint must, as a matter of law, be read to allege damages suffered so early as to render the claim time-barred” IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132,139 [2009]. 

As to legal malpractice, “A legal malpractice claim accrues ‘when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court”’ (McCoy v Feinman, 99 NY2d 295, 301 [2002]

Here is the argument to be made when the statute might reasonably be argued:  Sure, a mistake was made, but no claim could be made until the "but for" part of the case came into existence, and that did not come into existence until there were actual damages…

We think that plaintiffs should have been on notice when they were asked to do business with Bill Kidd, but even his name was not a tip-off.  Here’s what happened.  Kidd invested $5 million to start a low-cost durable medical equipment business that was dependent on getting cheep materials from China.  He hired Troutman and Mandell to represent him.  His company Access drafted a Private Placement Memorandum and got an initial investment of $ 15 million.  Then a year later it got a second investment of $ 30 million.  All’s good?  Not really.  The basic underlying necessity never existed, and cheep materials from China were not so cheep.  It all fell apart.  The problem was that the law firm represented Kidd to the detriment of his company Access.

Now, Kidd and his company Access were on two sides of the aisle, and Access sued the attorneys?  Result?  They waited 3 days too long, and the statute of limitations ran.  In Access Point Med., LLC v Mandell ; 2011 NY Slip Op 30866(U); April 8, 2011; Supreme Court, New York County; Docket Number: 102082/2010;  Judith J. Gische defines the statute of limitations for breach of fiduciary duty as 3 years when the basic relief sought is economic and 6 years when the basic relief sought is equitable. Time begins to run when the breach occurred,  Disgorgement of fees is generally incidental to economic relief.

How does one prove that the settlement was not good enough, given the circumstances? How does one prove that had this or that taken place, that Husband would have paid less, and more to the point, how does one prove that Husband was the victim rather than the beneficiary of the settlement?  It’s all in the minutia of the divorce dollars.

in Sevey v Friedlander ;   2011 NY Slip Op 02978 ;Decided on April 14, 2011 ;Appellate Division, Third Department we see that even the purchase of a car by husband is factored into the mix.  Question:  was he misled, was there malpractice, or did he know exactly what he was getting and giving, and now is simply carrying on war under a different caption?
 

"Defendants established that the settlement was, in many regards, financially favorable to plaintiff. For example, his temporary child support for his three children of $2,000 per month was reduced in the stipulation to $650 per month and he agreed to pay that amount for four years at which time his wife was required to pay child support to plaintiff for their son who resided with him. The duration of spousal maintenance for the long-term marriage was also capped at four years and, in fact, he paid for a shorter duration because his spouse remarried. Although he had received a $20,000 bonus on top of his $95,000 salary, his stipulated income included none of the bonus money. His spouse’s stipulated income from her small business was set at $28,000, which was an amount falling between her claimed earnings of $14,596 and the $46,703 contended by plaintiff’s expert. Moreover, at the time the divorce case was pending, plaintiff purchased a luxury car with monthly payments of nearly $800 for five years, an action that did not assist his position in the negotiations. Defendants submitted sufficient proof to shift the burden as to the element of whether plaintiff sustained actual damages.

Plaintiff contends that he would have received a more favorable result if he had gone to trial. On this record, his contention is entirely speculative (see Boone v Bender, 74 AD3d 1111, 1113 [2010]). "
 

Win Hay LLC v Chin ; 2011 NY Slip Op 02801 ; Decided on April 7, 2011 ; Appellate Division, First Department is an example of the most informal type of arrangement between an attorney and a client.  Client paid the attorney, who "forwarded" the fees to another attorney.  This informal type of relationship is unusual in New York.
 

"The documentary evidence refuted plaintiff’s allegations that plaintiff retained Choi to represent it in connection with its application for a tax exemption for certain real property (see CPLR 3211[a][1]). Although plaintiff purportedly paid a portion of a retainer fee to Choi, the record shows that the entire amount of the retainer was forwarded to defendant Chin, who admittedly represented plaintiff in connection with the application and who plaintiff had met with prior to issuing the subject payment (see Wei Cheng Chang v Pi, 288 AD2d 378 [2001], lv denied 99 NY2d 501 [2002]).

The record further demonstrates that, other than forwarding the retainer payment to defendant Chin, Choi was not involved in submitting the application, and had no knowledge as to whether Chin had filed the application and the necessary documents on plaintiff’s behalf. The record establishes that there was no attorney-client relationship between plaintiff and Choi and accordingly, the complaint is dismissed as against him (see Wei Cheng Chang, 288 AD2d at 381; D’Amico v First Union Natl. Bank, 285 AD2d 166, 172 [2001], lv denied 99 NY2d 501 [2002"
 

Guayara v Harry I. Katz, P.C. ; 2011 NY Slip Op 02845 ;Decided on April 5, 2011 ;Appellate Division, Second Department  is a relatively straightforward legal malpractice case involving multiple defendants.  Is a claim that defendants knew of a judgment won by plaintiff and failed to tell her of methods by which she could have recovered the judgment monies legal malpractice?
 

The AD1 thought that it could be. "The causes of action alleged, among other things, that the negligent failure to inform her of enforcement devices available to her to collect on a judgment entered in her favor in the principal sum of $279,079.47, caused her
to sell that judgment to a third party at the severely discounted rate of $100,000. After Meruelo answered the complaint, in which, among other things, he asserted cross claims against the Katz defendants for contribution and indemnification, the Katz defendants moved, in lieu of an answer, to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1) and (7) and to dismiss the cross claims asserted against them by Meruelo. Meruelo separately moved to dismiss the complaint pursuant to, inter alia, CPLR 3211(a)(7). The Supreme Court denied both motions. The Katz defendants and Meruelo separately appeal. We affirm the order insofar as appealed from.

To sustain a cause of action alleging legal malpractice, a plaintiff must show that the defendant attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" and that "the attorney’s breach of this professional duty caused the plaintiff’s actual damages" (McCoy v Feinman, 99 NY2d 295, 301-302 [internal [*2]quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Walker v Glotzer, 79 AD3d 737). To succeed on a motion to dismiss a complaint pursuant to CPLR 3211(a)(1), the documentary evidence relied upon by the defendant must "conclusively establish[] a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88). When determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), "the standard is whether the pleading states a cause of action," and "the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’" (Sokol v Leader, 74 AD3d 1180, 1180-1181, quoting Leon v Martinez, 84 NY2d at 87-88).

Here, the complaint alleged, inter alia, that but for the Katz defendants’ and Meruelo’s failure to inform her of the enforcement options available to her to collect on the judgment, the plaintiff would not have sold the judgment at such a discounted value and would have collected the full amount of the judgment. Accordingly, the complaint states legally cognizable causes of action against the Katz defendants and Meruelo sounding in legal malpractice. Thus, the Supreme Court properly denied those branches of the Katz defendants’ and Meruelo’s separate motions which were to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(7). Moreover, as the documents submitted by the Katz defendants do not conclusively dispose of the plaintiff’s claims against them, the Supreme Court properly denied that branch of the Katz defendants’ motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(1). "

How often do cases explode because of discovery abuses?  We do not have a firm answer, but much of the legal malpractice litigation world arises from discovery abuses.  Here, in Rock City Sound, Inc. v Bashian & Farber, LLP ;2011 NY Slip Op 02861 ;Decided on April 5, 2011 ;Appellate Division, Second Department we see a law firm being punished as a defendant in a legal malpractice case based upon its own refusal to provide records, in a discovery abuse scenario.

"In the order appealed from, the Supreme Court, inter alia, granted that branch of the plaintiff’s renewed motion pursuant to CPLR 3126 which was to strike the defendants’ answer. The defendants appeal, and we affirm the order insofar as appealed from.

The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court (see Raville v Elnomany, 76 AD3d 520, 521; Negro v St. Charles Hosp. & Rehabilitation Ctr., 44 AD3d 727, 728; 1523 Real Estate, Inc. v East Atl. Props., LLC, 41 AD3d 567, 568; Ordonez v Guerra, 295 AD2d 325, 326). However, the "drastic remedy" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 801) of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious (see Lomax v Rochdale Vil. Inc., 76 AD3d 999, 999; [*2]Moray v City of Yonkers, 76 AD3d 618, 619; Cobenas v Ginsburg Dev. Cos. LLC., 74 AD3d 1269, 1270; Xiao Yang Chen v Fischer, 73 AD3d 1167). " Willful and contumacious conduct may be inferred from a party’s repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply’" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800, quoting Savin v Brooklyn Mar. Park Dev. Corp., 61 AD3d 954, 954-955), " or a failure to comply with court-ordered discovery over an extended period of time’" (Friedman, Harfenist, Langer & Kraut v Rosenthal, 79 AD3d 798, 800, quoting Prappas v Papadatos, 38 AD3d 871, 872; see Russell v B & B Indus., 309 AD2d 914, 915; Penafiel v Puretz, 298 AD2d 446, 447).

It is clear from this record that the defendants willfully and contumaciously defied discovery orders of the Supreme Court by repeatedly failing to submit files requested by the plaintiff (see Russell v B & B Indus., 309 AD2d at 915; Nicoletti v Ozram Transp., 286 AD2d 719, 719-720; Penafiel v Puretz, 298 AD2d at 447). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s renewed motion which was to strike the defendants’ answer (see Nicoletti v Ozram Transp., 286 AD2d at 719-720; Penafiel v Puretz, 298 AD2d at 447). "

This case involves experts in medical malpractice, but it is equally applicable to legal malpractice cases.  May an expert witness (doctor or lawyer) be sued for malpractice based upon expert testimony at a malpractice case?  The answer in Cattani v Marfuggi  ;2009 NY Slip Op 29538 [26 Misc 3d 1053] ; November 25, 2009 ; Friedman, J. ; Supreme Court, New York County  is no.
 

"Plaintiff ignores an overwhelming body of case law, reiterated repeatedly by the appellate courts of this state, that "[s]tatements made by parties, attorneys, and witnesses in the course of a judicial or quasi-judicial proceeding are absolutely privileged, notwithstanding the motive with which they are made, so long as they are material and pertinent to the issue to be resolved in the proceeding." (Sinrod v Stone, 20 AD3d 560, 561 [2d Dept 2005]; Mosesson v Jacob D. Fuchsberg Law Firm, 257 AD2d 381 [1st Dept 1999], lv denied 93 NY2d 808 [1999]; accord Sexter & Warmflash, P.C. v Margrabe, 38 AD3d 163 [1st Dept 2007]; see generally Park Knoll Assoc. v Schmidt, 59 NY2d 205 [1983]; Toker v Pollak, 44 NY2d 211 [1978].) "
 

"This court afforded plaintiff’s counsel, Richard Stone, a reasonable opportunity to avoid this sanctions hearing. On March 19, 2009, at the oral argument of defendant’s motion to dismiss, the court met with counsel for the parties in chambers, expressed its concern that continued maintenance of the action could potentially subject plaintiff to sanctions, and adjourned the oral argument to enable plaintiff’s counsel to consult with other counsel about the legal issues and to confer with his client. On that date, at plaintiff’s counsel’s request, the court also provided him with citations to the immunity cases that are cited in the court’s April 16, 2009 [*4]decision, which was rendered on the adjourned date after plaintiff’s counsel apprised the court that he did not intend to withdraw this action.

Plaintiff has steadfastly insisted that his claims are maintainable. He has ignored the governing case law on witness immunity and has attempted to distinguish the absolute immunity cases on insupportable grounds. Thus, he argues that the immunity cases are all inapplicable because they are progeny of Marsh v Ellsworth (50 NY 309 [1872]), a case involving defamation rather than fraud. (Tr at 16, 19.) At times, plaintiff appears to advance the meritless suggestion that the immunity cases apply only to defamation claims and not to claims involving perjured testimony generally. (Tr at 33.) Focusing on Newin, plaintiff fails to acknowledge that the general rule is that an absolute privilege attaches to witnesses’ testimony in judicial{**26 Misc 3d at 1058} proceedings, and that Newin states an exception, which has been applied only in "rare cases," for perjured testimony that is part of a "larger fraudulent scheme." (Tolisano v Texon, 144 AD2d 267, 271 [1st Dept 1988, Smith, J., dissenting] [citing Newin], revd for reasons stated in dissent 75 NY2d 732 [1989].) As held above, plaintiff’s attempt to bring this case within the Newin exception is completely baseless, and rests on the bare assertion of a larger fraudulent scheme, unsupported by any factual allegations. "

Attorneys sometimes say, in essence, sorry, I was wrong.  This happens far less often then one might think, but, it does happen.  When does that admission become applicable and useful in summary judgment.  The obvious answer is "after joinder of issue", but the more real world answer is found in  Vlachos v Weil ;2011 NY Slip Op 50538(U) ;Decided on April 8, 2011 ;Supreme Court, Queens County ;Markey, J. .  An e-mail is said to contain an admission of wrongdoing.
 

"This e-mail standing alone does not establish all the elements of a cause of action for legal malpractice. This Court’s independent legal research has revealed that admissions contained in e-mails may be used in litigation, but only after a court has analyzed carefully several issues, including, but not limited to, the authority and the capacity that the person who made the statement had, in the factual circumstances of the case, for making the particular statement or admission (see, Sea-land Serv., Inc. v Lozen Intl., LLC, 285 F3d 808, 821-822 [9th Cir. 2002] [district court abused discretion in excluding e-mail admission]; Jackson v Sara Lee Bakery Group, 677 F. Supp. 2d 1268 [ND Ala. 2009] [excellent analysis of whether particular emails constituted admissions, depending on the status of the person’s position within the company and the circumstances under which the alleged admission was made within the email] ; Schaghticoke Tribal Nation v Kempthorne, 587 F. Supp 2d 389, 398 [D. Conn. 2008] [e-mails written by congressional staffers were not admissions, but emails by Governor’s staff were considered admissions]; In re Homestore.Com, Inc. Securities Litigation, 347 F. Supp 2d 769, 781 [CD Cal. 2004] [admitting emails as admissions as "highly relevant" to the financial dealings]; Riisna v American Broadcasting Companies, Inc., 219 F. Supp. 2d 568, 571-573 [SDNY 2002] [email from executive producer of television news show was considered an admission]). [*3]

In the present case, it would be improvident, at this pre-deposition phase, to start applying admissions in order to short circuit meaningful discovery. Several issues of fact exist warranting discovery, including the role each defendant and the plaintiffs played in determining how payments were to be made and whether any purported malpractice was the proximate "but for" cause of the injury.

Furthermore, no discovery, including any deposition has taken place. In light of the substantial outstanding discovery, including the depositions of the parties, the motions by the plaintiffs and the defendant Weil for summary judgment are denied as premature, without prejudice to renew (CPLR 3212[f]; see, Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636 [2nd Dept. 2006]; Rosa v Colonial Tr., 276 AD2d 781 [2nd Dept. 2000]). "