This holiday week, swept with snow and high winds, brings a case which re-emphasizes our meme that legal malpractice may show up anywhere attorneys are at work.  Here in Country Club Partners, LLC v Goldman ;  2010 NY Slip Op 09309 ;  Decided on December 16, 2010 ;  Appellate Division, Third Department   we see an allegation of legal malpractice (not addressed here) and of breach of fiduciary duty in the real estate transactions surrounding a country club transaction.
 

"Plaintiff’s breach of fiduciary duty claim relates, in part, to Goldman’s allegedly improper actions occurring after SGMS’s representation of plaintiff ceased, and plaintiff’s malpractice claim relates, in p art, to defendants’ allegedly improper actions occurring during SGMS’s representation of plaintiff,  he two claims are not duplicative (see Kurman v Schnapp, 73 AD3d 435, 435-436 [2010]; Ulico  Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9 [2008]; Weil, Gotshal &  Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]). "

"The attorney-client relationship "imposes on the attorney the duty to deal fairly, honestly and with undivided loyalty . . . including maintaining confidentiality, avoiding conflicts of interest,  operating competently, safeguarding client property and honoring the clients’ interests over the  lawyer’s" (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 9 [internal  quotation marks and citations omitted]; see Krouner v Koplovitz, 175 AD2d 531, 532 [1991]). To  recover on its claim, plaintiff is required to "prove both the breach of a duty owed to it and damages  sustained as a result" (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 10  internal citation omitted]). That is, a client must establish "actual and ascertainable  damaes" (Boone v Bender, 74 AD3d 1111, 1112 [2010] [internal quotation marks and citations ommitted]; see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]) that would not have occurred "but for" the attorney’s conduct (Boone v Bender, 74 AD3d at 1113; see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 10; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d at 271-272). "For defendants to succeed on their motion for summary judgment here, they were required to present evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements" (Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d at 926 [citations omitted]; see Boone v Bender, 74 AD3d at 1112-1113).

Here, summary judgment dismissing plaintiff’s cause of action alleging a breach of fiduciary duty was properly granted since defendants met their burden on their motion and, in opposition, plaintiff failed to raise a question of fact that defendants’ breach proximately caused it any ascertainable damages (see Boone v Bender, 74 AD3d at 1113; Brodeur v Hayes, 18 AD3d 979, 980-981 [2005], lv dismissed and denied 5 NY3d 871 [2005]). In support of their motion, defendants presented Kime’s affidavit, in which she stated that Michael Gordon, a member of [*3]plaintiff, contacted her about acquiring an option to purchase a portion of her property. Kime stated that she advised Gordon that she was not interested in selling an option to only a portion of her property, but instead desired to sell outright the entire parcel, including its residence. According to Kime, neither Gordon nor any other member of plaintiff made subsequent offers to purchase the entire parcel and negotiations with plaintiff ceased. Kime was thereafter approached by several people interested in purchasing the property and, in August 2006, she received two offers to purchase the entire parcel, one from Goldman and another from Todd Britton and Mary Britton, both for $435,000. Kime stated that she decided to accept Goldman’s offer over the Brittons’ offer because it included a higher down payment ($100,000 compared to $5,000) and was, in the opinion of her attorney, the stronger offer. In opposition to defendants’ motion, Gordon submitted an affidavit in which he stated that negotiations with Kime progressed to the point where an offer in the amount of $400,000 was made and an option agreement was drafted. "

Legal malpractice litigation is often viewed with a gimlet eye. This is a 50’s expression meaning a sharp or knowing look.  Courts often believe that legal malpractice counterclaims are merely a method of trying not to pay legal fees.  As has been observed elsewhere, attorney fees are dear to the heart of attorneys.

Butterman & Kahn, LLP v Yildiz;  2010 NY Slip Op 33440(U);  December 13, 2010;  Sup Ct, NY County;  Judge: Judith J. Gische seems to be an example of this phenomenon.  "An account stated represents an agreement between the parties reflecting mounts due on prior transactions. Jim-Mar Cwp. v. Aquatic Constr., 195 A.D.2d 868 (3d dept. 1993), Iv. denied 82 N.Y.2d 660 (1993). The receipt and retention of an account, without objection, within a reasonable period of time, gives rise to an account stated entitling the moving party to summary judgment in its favor. Morrison Cohen Siflger & Weinstein. LLP v. Ackerman, 280 A.D.2d 355 (Iat Dept. 2001). Where either no account
has been presented or there is any dispute regarding the correctness of the account, the cause of action fails. M & A Const, CQrD. v. McTaque, 21 A.D.3d 610 (3rd Dept. 2005). plaintiff, but has provided no proof other than her own affidavit.

Here, plaintiff has established a prima facie cause of action for account stated against the defendant. Plaintiff has established that it sent detailed billing statements to the defendant reflecting the legal serviced provided and the fees and disbursements incurred on the defendant‘s behalf. Plaintiff has also established that the defendant made partial payments on many of these billing statements, and otherwise retained same without objection. Here, the defendant’s retention of the bills and her forty-six partial payments give rise to an account stated (see Morrison Cohen v, Wate rs, 13 AD3d 51 [Ist Dept 20041; Morrison Cohen Sinqer 8 Weinge in, LI P v. Ackerman, 280 AD2d 355 [lst Dept 2001J;s ee also Moses & Sinqer LLP v. S&S Machinew Corp., 251 AD2d 271 [ lst Dept 1998]),

The defendant has failed to raise a triable issue of fact on the issue of timely objection. Her argument that Attorney Butterman’s statement on the record at a court Page6of 12
[* 7] proceeding that the defendant owed $40,000 is rejected because is not relevant to issue
of whether the defendant timely objected to the bills she indisputably received. It is undisputed that the defendant received each and every one of the bills that the plaintiff sent. Moreover, Attorney Butterman’s misrepresentation of the amount that the defendant owed to plaintiff has been explained by plaintiff as a reasonable error. Attorney Butterman supposedly confused the amount the defendant owed to his firm with the total child support arrears owed by Mr. Yildiz at that point. *
Indeed, the defendant made another partial payment to the plaintiff after the September 2009 court appearance where Attorney Butterman misspoke. Even this partial payment was a recognition of the defendant’s indebtedness to the plaintiff (Boulanqer, Hicks. $ tein & Churchill, P,C, v. Jac obs, 235 AD2d 353 [lst Dept 19971). The defendant’s claims that Attorney Butterman “lied” to the court or downplayed the amount the defendant owed to his firm is a red herring.  Any claims that the defendant made timely objections in writing are unsubstantiated."

Equitable Estoppel is a principal which comes into play most often when a case is not commenced within the statute of limitations. The theory is that plaintiff was lulled into not starting the case by a wrongful act of defendant. Considering that blown statutes of limitations are one well recognized basis for legal malpractice cases, the two concepts are suitably intertwined.

In a recent legal malpractice (arising from a medical malpractice case) we see Justice Shulman of Supreme Court, New York County writing:

"The doctrine of equitable estoppel may bar a defendant from asserting the statute of limitations when the plaintiff "was induced by fraud, misrepresentations or deception to refrain from filing a timely action" (Ross v Louise Wise Sews., Inc., 8 NY3d 478, 491 [2007], quoting Simcuski v Saeli, 44 NY2d 442, 448-449 [1978]; General Stencils, lnc. v Chiappa, 18 NY2d 125, 128 [ 19661). Equitable estoppel will "bar the assertion of the affirmative defense of the Statute of Limitations where it is the defendant’s affirmative wrongdoing . . . which produced the long delay between the accrual of the cause of action and the institution of the legal proceeding" (Zumpano v. Quinn, 6 NY3d 666, 673 [2006], quoting General Stencils, lnc. v Chiappa, 18 NY2d at 128). A defendant may be precluded from.invoking a statute of limitations defense under such circumstances (Putter v North Shore Univ. Hosp., 7 NY3d 548, 552 [ZOOS], quoting Zumpano v Quinn, 6 NY3d at 673).
Where a medical malpractice claim is asserted, the patient’s medical records are material to reaching a responsible decision on whether there are grounds for a lawsuit and equitable estoppel may arise where there is an unreasonable delay in delivering records to an attorney consulted in a suspected case of malpractice (Karnruddin v Desrnond, 293 AD2d 714 [2d Dept 20021). Concealment by a physician or failure to disclose his own malpractice may, in a proper case in conjunction with other factors, provide a foundation for seeking to invoke the doctrine of equitable estoppel to extend the applicable period of limitations (Simcuski v Saeli, 44 NY2d at 452).

Of critical importance, due diligence on the plaintiffs part in ascertaining the facts and commencing the action is an essential element when plaintiff seeks to invoke this doctrine. Although there are exceptions, "the question of whether a defendant should be equitably estopped is generally a question of fact” (Putter v North Shore Univ. Hosp., 7 NY3d at 553). On the other hand, where plaintiff is timely aware of the facts requiring him to make further inquiry before the statute of limitations expires, an equitable estoppel defense to the statute of limitations is inappropriate as a matter of law (Pahlad w Brustman, 8 NY3d 901 [2007])."In Lopresti v Bamundo, Zwal & Schermerhorn, LLP;  2010 NY Slip Op 33436(U);  December 14, 2010;  Sup Ct, NY County ;  Docket Number: 100206/09;  Judge: Martin Shulman determines that equitable estoppel does not apply."This record contains no evidence of any affirmative wrongdoing or purposeful concealment on Dr. Marino’s part caused Lopresti’s delay in commencing the underlying action (see Zumpano v Quinn, 6 NY3d at 673; Kamruddin v Desmond, 293 AD2d at 71 5). Lopresti’s allegedly incorrect statements to Bamundo ZwaI as to the last date Dr. Marino treated Vito Lopresti and the delay in having a personal representative appointed cannot be held against Dr. Marino. Rather, Lopresti’s and/or Bamundo Zwal’s own inaction caused the untimely commencement of the underlying case. See, e.g., Public Adm’r of State of New York v Beth Israel Med. Ctr., 2007 WL 176380 (Sup Ct, NY County, Carey, J)(granting summary judgment dismissing action as time barred and finding that hospital should not be equitably estopped from asserting statute of limitations as a defense where plaintiffs inaction and failure to avail itself of various procedural safeguards’ prevented timely commencement of action)."

It appears that one of two law firms is to blame for plaintiff’s medical malpractice fiasco.  Which is it?  InLopresti v Bamundo, Zwal & Schermerhorn, LLP, ;2010 NY Slip Op 33436(U); December 14, 2010; Judge: Martin Shulman we see a familiar problem.  A medical malpractice death case sets two different time clocks running.  In such cases, no only does the attorney have to set up a surrogate’s court proceedings and at least get letters of administration, the attorney has to commence both a wrongful death and a personal injury/medical malpractice case and has to do so within a two year time frame. 

Simple, one might say; that’s two years!  However, as this case demonstrates, much must be done to get things going, and the client rarely comes to the attorney in the days after the death.  Here, too much time went by. More interesting, this case demonstrates that plaintiff’s attorney may well become involved in the litigation as a third party defendant."The complaint in this action for legal malpractice alleges that in the underlying medical malpractice case, Bamundo ZwaI failed to timely commence the first cause of action seeking to recover damages for Vito Lopresti’s conscious pain and suffering.  Lopresti alleges she was forced to settle the underlying wrongful death second cause of action for an amount below what she would have recovered had it not been for
Bamundo Zwal’s actions.  Bamundo Zwal has impleaded the Reiter law firm alleging that Reiter failed to properly oppose Dr. Marino’s motion for summary judgment. The third-party complaint
pleads causes of action for contribution and common-law indemnification.  Reiter served this motion for summary judgment simultaneously with its third party answer and without any discovery being conducted. In this legal malpractice action, Reiter represents both plaintiff Lopresti and itself as third-party defendant."

"Under the circumstances presented here, this court concludes that there was no basis for Reiter to pursue an equitable estoppel defense in opposition to Dr. Marino’s motion in the underlying action for summary judgment dismissing the medical malpractice cause of action as time barred. As Zwal himself testified at his June 3, 2010 deposition, Dr. Marino refused to respond to  Bamundo Zwal’s first request for records in May 2004 because Vito Lopresti was deceased and no personal representative had been appointed (see Motion at Exh. IO, p. 32). After Lopresti was
appointed administratrix of her husband’s estate, Bamundo Zwal made a second  written request to Dr. Marino dated April 19, 2005, less than 30 days before the statute of limitations expired.
This record contains no evidence of any affirmative wrongdoing or purposeful concealment on Dr. Marino’s part caused Lopresti’s delay in commencing the underlying action (see Zumpano v  Quinn, 6 NY3d at 673; Kamruddin v Desmond, 293 AD2d at 71 5). Lopresti’s allegedly incorrect statements to Bamundo ZwaI as to the last date Dr. Marino treated Vito Lopresti and the delay in having a personal representative appointed cannot be held against Dr. Marino. Rather, Lopresti’s and/or Bamundo Zwal’s own inaction caused the untimely commencement of the underlying case. See, e.g., Public Adm’r of State of New York v Beth Israel Med. Ctr., 2007 WL 176380 (Sup Ct, NY County, Carey, J)(granting summary judgment dismissing action as time barred  and finding that hospital should not be equitably estopped from asserting statute of limitations as a defense where plaintiffs inaction and failure to avail itself of various procedural safeguards’ prevented timely  commencement of action)."

We’re sure that the Appellate Division did not plan this, but shortly after the first snow of the season, and in the middle of a span of days each with temperatures less than 25 degrees, we read the following case with interest.  In Walker v Glotzer ;  2010 NY Slip Op 09126  ;  Decided on December 7, 2010 ;  Appellate Division, Second Department we see a slip on snow and ice case which as admittedly lost on the first go-around on a blown statute of limitations. 
 

"She retained the defendant attorneys to bring a personal injury suit on her behalf. After the statute of limitations had expired, the defendants contacted the plaintiff and informed her that they had failed to timely commence an action on her behalf because of a clerical error. The plaintiff thereafter commenced the instant action to recover damages for legal malpractice. "

Typically, we see the case then blown out on a lack of notice to the land owner, an inability to prove that the landowner made the situation worse rather than simple nonfeasence, or a "storm in progress" defense.  Here, however, there must have been more.  Regrettably the AD said little about the actual facts.

"Here, the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, since they failed to come forward with admissible evidence supporting their contention that their alleged malpractice did not cause the plaintiff damage because she would not have been able to establish the notice element of a premises liability action. A property owner is subject to liability for a defective condition on its premises if a plaintiff demonstrates that the owner either created the alleged defect or had actual or constructive notice of it (see Betz v Daniel Conti, Inc., 69 AD3d 545, 545; Roy v City of New York, 65 AD3d 1030, 1031; see also Gordon v American Museum of Natural History, 67 NY2d 836, 837). Under the circumstances of this case, the defendants failed to establish, as a matter of law, that the plaintiff would not have been able to prove that the premises owner did not, by its own snow and ice removal efforts, create or exacerbate the allegedly dangerous condition which caused the plaintiff’s injuries (see Sut v City Cinemas Corp., 71 AD3d 759; Gil v Manufacturers Hanover Trust Co., 39 AD3d 703; see also Robles v City of New York, 56 AD3d 647; Bruzzo v County of Nassau, 50 AD3d 720)

Board of Mgrs. of the Bay Club v Borah, Goldstein, Altschuler, Schwartz & Nahins, P.C. ; 2010 NY Slip Op 52129(U) ; Decided on December 13, 2010 ; Supreme Court, Queens County ; Markey, J. is a legal malpractice case against one of the best known and best regarded landlord law firms in NY.  Borah, Goldstein represents landlords in all phases of L&T work, and can be seen every day in the commercial L&T parts, playing the elephant in the room.  Nevertheless, this complaint says that they made a simple mistake, which cost the client extra legal fees.  Is this allegation enough for a Legal Malpractice case?  Answer: Yes.
 

"Among the services that Borah Goldstein did on behalf of the Bay Club Board was the preparation and filing of notice of a lien for unpaid common charges pursuant to section 339 of the Condominium Act. The complaint in this action alleges that the Borah Goldstein firm was negligent in drafting and filing the notice of lien, which failed to include a verification of the information set forth therein. The complaint further alleges that as a result of this negligence the Bay Club board sustained damages by requiring it to incur more litigation expenses in defending the validity of the lien."

"The defendant argues that the plaintiff did not state a claim for malpractice as the plaintiff cannot establish the essential "but for" element in a legal malpractice action, arguing that there was no proof of damages as a result of the alleged malpractice. However, a plaintiff can recover in a legal malpractice action even if it is successful in the underlying action if it incurred increased expenses due to the attorney’s negligence in the handling of the action (see, DePinto v Rosenthal & Curry, 237 AD2d 482 [2nd Dept. 1997]). Here, the plaintiff sufficiently alleged that it has sustained ascertainable damages as a consequence of increased litigation expenses that it incurred attributable to the unverified lien. Plaintiff argues that it has stated a cause of action for legal malpractice. "

Proving the point that attorneys should not dabble in areas of the law unfamiliar them, we learned of the "7 month Rule" in estate and trust work.  The rule is that an executor is not liable for good faith distribution of estate proceeds if the distribution takes place at least 7 months after the death. In this case the executrix became personally liable to the DSS for monies distributed.

Central to Orosz v Eppig ;2010 NY Slip Op 33312(U); November 16, 2010 ;Supreme Court, Suffolk County ;Judge: Joseph C. Pastoressa is a discussion of the obligations of an attorney retained to investigate and handle a transactional or litigation matter.  Similar in our minds to a full-service elevator contract, it requires the attorney to do more than take the information from the client and make certain filings.  It requires the attorney to investigate, determine and act.

"An attorney may not shift to the client the legal responsibility the attorney was specifically hired to
undertake because of the attorney’s superior knowledge (see, Hart v Carro, Spanbock, Kaster &
Cuiffo, 21 1 AD2d 617, 619; Cicorelli v Capobianco, 90 AD2d 524, 525, affd 59 NY2d 626).
An attorney may be liable for ignorance of the rules of practice, for failure to comply with conditions
precedent to suit, for neglect to prosecute or defend an action, or for failure to conduct adequate legalresearch (see, Conklin v Owen, 72 AD3d 1006; McCoy v Tepper, 26 1 AD2d 592; Gardner v Jacon,148 AD2d 794, 796; Grago v Robertson, 49 AD2d 645,646). While an attorney has a responsibility toinvestigate and prepare every phase of a client’s case, an attorney should not be held liable for ignoranceof facts which the client neglected to tell him or her (see, Green v Conciatori, 26 AD3d 410, 41 1;Parksville Mobile Modular v Fabricant, 73 AD2d 595, 598)."

Bernardi v Spyratos ;  2010 NY Slip Op 09097 ;Decided on December 7, 2010 ;Appellate Division, Second Department  is the story of two neighbors who have locked horns over a waterfront property.  There are issues of encroachment, adverse possession, hidden water damage, legal malpractice and failures to take a survey at or before closing.  Important to this article is whether the attorneys for buyer failed to advise the client to get a new survey.  Interestingly there is no letter or writing on the issue.
 

"In order to recover damages against the Wilcox defendants for legal malpractice, the plaintiffs must show (1) that the Wilcox defendants failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and (2) that such negligence was a proximate cause of the actual damages sustained (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sayer, 8 NY3d 438, 442). Here, the plaintiffs submitted the deposition testimony of Wilcox, in which she repeatedly testified that she advised the plaintiffs of the possibility of obtaining an updated survey, which they refused to obtain. Accordingly, the plaintiffs failed to meet their initial burden of establishing an absence of triable issues of fact as to the alleged malpractice. Moreover, given that the underlying boundary dispute has not yet been resolved, the plaintiffs failed to establish causation or damages as a matter of law (id., see Northrop v Thorsen, 46 AD3d 780, 782). Accordingly, that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the Wilcox defendants was properly denied (see generally Zuckerman v City of New York, 49 NY2d at 562).

However, the Supreme Court should have granted the plaintiffs leave to amend the complaint in Action No. 2 to assert a claim against the Wilcox defendants based upon their alleged failure to explain or delete certain clauses in the contract of sale. In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (see CPLR 3025[b]; Lucido v Mancuso, 49 AD3d 220; Unger v Leviton, 25 AD3d 689). Here, there will be no prejudice or surprise to the Wilcox defendants by virtue of the amendment. They were aware of the plaintiffs’ allegations against Harrison concerning the condition of the premises, and Wilcox was extensively questioned during her deposition about her advice to the plaintiffs concerning the relevant clauses. Further, the allegation is not patently nonmeritorious. However, the plaintiffs’ proposed allegation against the Wilcox defendants in paragraph 106 of the proposed amended complaint, concerning the property condition disclosure statement, is patently without merit and was properly disallowed, as the Wilcox defendants were not the owners of the subject property (see Real Property Law § 465[1]). "