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]). "

Capogrosso v Landsman ;2011 NY Slip Op 02826 ;Decided on April 5, 2011 ;Appellate Division, Second Department  is an example of the problem of successor attorneys.  Aside from the fact that this particular plaintiff is herself an attorney, and has herself sued many attorneys (and lost), the more salient point to take from this case is that there is always a problem of the successor attorney and how liability might be attributed. 
 

Here, plaintiff herself was the successor attorney, but that is not important for the more general lesson that when a successor attorney takes over and the case (or appeal) is still alive, it will be the work of that successor attorney to win or lose, and the predecessor attorney is more or less off the hook.

"The defendant represented the plaintiff, an attorney, in a prior action. Following a trial in the prior action, judgment was entered against the plaintiff. The defendant filed a notice of appeal on the plaintiff’s behalf and then withdrew as her counsel in the action. The plaintiff proceeded pro se, perfected the appeal, and the Appellate Division, First Department, affirmed the judgment against the plaintiff (see Capogrosso v Reade Broadways Assoc., 63 AD3d 414).

Subsequently, the plaintiff commenced this legal malpractice action against the defendant, alleging, inter alia, that the defendant failed to turn over the case file from the prior action, and that this failure prevented the plaintiff from perfecting her appeal. The defendant moved, among other things, to dismiss the complaint pursuant to CPLR 3211(a)(1), asserting that the plaintiff had, in fact, perfected her appeal and lost. In addition, the defendant contended that he had a retaining lien on the case file in the prior action because the plaintiff owed him substantial fees for his services. In response, the plaintiff argued that she was forced to bring an appeal limited to a single issue because she was unable to construct a complete record for the appeal in the absence of the defendant’s file. The Supreme Court, inter alia, granted that branch of the defendant’s motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1), and the plaintiff appeals. We affirm the order insofar as appealed from. "

In the Third Department certain types of cases seem to predominate.  One such type is tax matters.  This case,Dealey-Doe-Eyes Maddux v Schur ;2011 NY Slip Op 02763 ;Decided on April 7, 2011 ;Appellate Division, Third Department falls into that category.  A failed tax action against Fulton County, followed by a failed legal malpractice action, followed by two later attempts to get it started once again.  The question is, why and how do plaintiffs pro-se- persist?
 

"Defendant, an attorney, represented plaintiff in a tax assessment proceeding that she initiated against the Town of Oppenheim, Fulton County, during which she contends the Town was held in contempt. In 2003, plaintiff commenced this legal malpractice action against defendant alleging that he never filed an order with Supreme Court memorializing the contempt finding it issued against the Town and, as a result, was negligent in the legal representation that he provided her in that proceeding [FN1]. After plaintiff completed the presentation of her proof at trial, Supreme Court granted defendant’s motion to dismiss.

Subsequently, plaintiff filed a motion to renew (see CPLR 2221 [e]) seeking to reopen her action against defendant on the ground that she had recently received a letter from the Chief Clerk of the Supreme and County Courts in Fulton County that constituted new evidence confirming that the Town had been held in contempt in the tax assessment proceeding. Initially, [*2]Supreme Court determined that plaintiff was, in fact, not filing a motion to renew but, instead, was filing a motion to be relieved from the effects of a prior judgment (see CPLR 5015). After making that determination, Supreme Court denied plaintiff’s motion because she had failed to demonstrate that she had acted with due diligence in the discovery of this evidence and, even if it had been available at trial, plaintiff did not establish that there would have been a different result.[FN2]

One year later, plaintiff filed another motion to renew (see CPLR 2221 [e]), once again claiming that she had discovered new evidence which, if admitted at trial, would have resulted in a finding that defendant was negligent. This evidence included papers filed by defendant in support of the application seeking a contempt citation against the Town, as well as letters that plaintiff received from the Supreme and County Court Clerk’s office documenting her efforts to establish that a contempt finding had been issued against the Town. Supreme Court again converted plaintiff’s application into a motion to be relieved from a prior judgment (see CPLR 5015) and denied it because the evidence submitted by plaintiff was not new, nor would it have made a difference if introduced into evidence at trial. Plaintiff now appeals. "

The Fourth Department, in what we see as strong terms, reiterated that it is always the attorney’s job to prepare the case, and that responsibility may not be shifted to the client.  Even when the client participates in the preparation it remains a responsibility of the attorney. 

In Rupert v Gates & Adams, P.C. ;2011 NY Slip Op 02554 ; Decided on April 1, 2011 ; Appellate Division, Fourth Department  the AD not only says that it was the obligation of the attorneys to trace and investigate matrimonial assets, but that they themselves had to do the work.
 

"We further conclude, however, that the foregoing waiver analysis does not apply with respect to plaintiff’s aforementioned claims that defendants were negligent with respect to the investigation and valuation of plaintiff’s separate property, their investigation of the payment of the sum of $315,000 relative to a note held by plaintiff, and their investigation of the deposit by plaintiff of approximately $60,000 in pension monies into a joint account. Defendants failed to meet their initial burden on those parts of the motion concerning those claims (see Pignataro, 38 AD3d 1320; see generally Zuckerman, 49 NY2d at 562). The waiver analysis based on plaintiff’s global settlement does not apply to those purported deficiencies in defendants’ representation of plaintiff in the matrimonial action because the appeal from the final judgment in the matrimonial action would not have permitted defendants or substitute counsel for plaintiff to address questions regarding the failure to trace plaintiff’s separate property into the marriage and to locate evidence both proving plaintiff’s payment of $315,000 on an outstanding note and demonstrating that $60,000 of plaintiff’s pension monies had been transferred to a joint account to be shared with plaintiff’s former wife. Finally, defendants will not be heard to contend that plaintiff’s involvement with the preparation of the matrimonial action for trial bars him from raising those deficiencies. An attorney generally is not permitted to shift to the client the legal responsibility that the attorney was hired to undertake because of his or her superior knowledge (see Northrop v Thorsen, 46 AD3d 780, 783). Indeed, it is well settled that "[a]n attorney has the responsibility to investigate and prepare every phase of his [or her] client’s case" (Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 453 [internal quotation marks omitted]). "

We had not thought about the time relations hp between legal malpractice and breach of fiduciary duty and how the first could become impossible while the second  could start, but the Fourth Department set it all out in Neuman v Frank ;2011 NY Slip Op 02215  ;Decided on March 25, 2011
Appellate Division, Fourth Department.  

Answering the question of whether they are duplicitive, it found that they were not, as the claims of legal malpractice applied to the time when the attorneys represented plaintiff, and a breach of fiduciary duty analysis applied to later dealings after the representation ended.
 

"Addressing defendants’ cross motion for partial summary judgment, we conclude that Supreme Court properly denied the cross motion with respect to defendant, the sole appellant. "A cause of action for legal malpractice must be based on the existence of an attorney-client relationship at the time of the alleged malpractice’ " (TVGA Eng’g, Surveying, P.C. v Gallick [appeal No. 2], 45 AD3d 1252, 1256; see Compis Servs., Inc. v Greenman, 15 AD3d 855, lv denied 4 NY3d 709). The fiduciary duty of an attorney, however, "extends both to current clients and former clients and thus is broader in scope than a cause of action for legal malpractice" (TVGA Eng’g, Surveying, P.C., 45 [*2]AD3d at 1256; see Greene v Greene, 47 NY2d 447, 453). Thus, a cause of action for legal malpractice based upon alleged misconduct occurring during the attorney’s representation of the plaintiff is not duplicative of a cause of action for breach of fiduciary duty based upon alleged misconduct occurring after the termination of the representation (see Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391; Kurman v Schnapp, 73 AD3d 435, 435-436). Although plaintiff alleged in the amended complaint that defendant’s misconduct occurred during the period from October 2004 to May 2005, when defendant represented plaintiff in transactions related to the development of a shopping center, defendant testified at his deposition that he withdrew from representing plaintiff at some point prior to April 11, 2005. Therefore, based on defendant’s own deposition testimony, defendants failed to meet their initial burden of establishing that the breach of fiduciary duty cause of action is duplicative of the legal malpractice cause of action for the period between May 2005 and the as yet unspecified date prior to April 11, 2005 when defendant ceased to represent plaintiff (see Country Club Partners, LLC, 79 AD3d at 1391; Kurman, 73 AD3d at 435-436). "

Client is a sophisticated real estate investor, and has hired attorney to do two deals already.  Both went smoothly.  Third time, client expects to lend $ 500,000 to a real estate development, and finds himself not only out the $ 500,000 but owing $ 650,000 to another lender. 

Defendant attorney says, look at the documents.  Sophisticated client investor knew exactly what he was doing.  There is no legal malpractice.  Who is right?  We see the following in Marom v Anselmo ;2011 NY Slip Op 30756(U); March 31, 2011; Supreme Court, Richmond County
Docket Number: 101440/09; Judge: Joseph J. Maltese

"Defendant correctly notes that a party who signs a document without reading it is generally bounds by its terms notwithstanding any avowed lack of knowledge of its contents (see Matter of ugustine v. BankUnited, FSB, 75 AD3d 596, 597; Martino v. Kaschak, 308 AD2d 698). Dfendant is further correct in noting that (1) the terms of these documents are clear; (2) a quick rading thereof would have apprised plaintiff that he had not been granted a first mortgage on the sbject property; (3) plaintiff was no novice to real estate investing; (4) there has been no claim that plaintiff was suffering from any disability at the time of execution or was prevented from reading the documents, and (5) plaintiff does not claim that he was forced or coerced into signing the documents, or was subjected to either fraud or misrepresentation (see Matter of Augustine v.BankUnited, FSB, 75 AD3d at 597; Pistilli v. Gandin, 10 AD3d 353, 354; Pimpinello v. Swift & Co., 253 NY 159, 162-163). However, plaintiff at bar has not challenged the binding nature of the documents which he signed or tried to avoid the terms of his agreements with the Zeers. Under similar circumstances, the Court of Appeals has held that “the binding nature of [the] agreement[s] between plaintiff and a third party is not a complete defense to the professional malpractice of [a lawyer or] law firm that [is alleged to have secured] an agreement [which operated to its client’s detriment]” (see Arnav Indus., Inc. Retirement Trust v. Brown Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 304-305)
The culpable conduct of the plaintiff-client in a legal malpractice action may, nevertheless, be pleaded as a mitigating factor by way of an affirmative defense (see Cicorelli v Capobianco, 90 AD2d 524, affd 59 NY2d 626)."