Over the years, the rules of service of process have changed.  Once, long ago, a case was commenced when defendants were served with a summons and complaint and an index number was purchased only when necessary.  Later, in 1992 a commencement by index number rule started, and questions of service then arose.  Under CPLR 306-b a requirement that process be served within a 120 day period was enacted.  Ever since, problems of service and dismissals have abounded.

Bumpus v New York City Tr. Auth. ;2009 NY Slip Op 05737 [66 AD3d 26] ;July 7, 2009 ;Dillon, J., J. is a well written encyclopedia of how to serve a summons when defendant is not easy to find, or, in this case, easy to identify,  Counsel has four choices to identify a "Jane Doe" and serve that party within the statutory period. "The 120-day service provision of CPLR 306-b can be extended by a court, upon motion, "upon good cause shown or in the interest of justice" (CPLR 306-b). "Good cause" and "interest of justice" are two separate and independent statutory standards (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 104). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see Leader v Maroney,{**66 AD3d at 32} Ponzini & Spencer, 97 NY2d at 105-106)" 
 

"If good cause for an extension is not established, courts must consider the "interest of justice" standard of CPLR 306-b (see e.g. Busler v Corbett, 259 AD2d at 17). The interest of justice standard does not require reasonably diligent efforts at service, but courts, in making their [*3]determinations, may consider the presence or absence of diligence, along with other factors (see Leader v Maroney, Ponzini & Spencer, 97 NY2d at 105). The interest of justice standard is broader than the good cause standard (see Mead v Singleman, 24 AD3d 1142, 1144 [2005]), "

What happens when Judges hire attorneys to litigate election law matters?  The same thing that happens when ordinary people litigate.  Some litigations end in legal malpractice cases.  That is true of Simpson v Alter ; 2010 NY Slip Op 08089 ; Decided on November 9, 2010 ;Appellate Division, Second Department.   

In this follow up to the election battle between the Hon. ShawnDya L. Simpson and the Hon. Diana Johnson Judge Simpson sues her election law attorney Bernard Simpson after he had represented Simpson and the Johnson.  Did he impart confidential client information from one to the other?

More in this case will follow, ad the Court affirmed the lower court’s denial of a dismissal motion based upon collateral estoppel.

"The Supreme Court properly denied that branch of the appellants’ motion which was to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211(a)(5) based upon the doctrine of collateral estoppel. The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues raised in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling (see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199; Buechel v Bain, 97 NY2d 295, 303-304, cert denied sub nom. Buechel v Bain, 535 US 1096; Mahler v Campagna, 60 AD3d 1009, 1011). Preclusive effect may only be given to issues that were "actually litigated, squarely addressed and specifically decided" (Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825; see Motors Ins. Corp. v Mautone, 41 AD3d 800, 801). Here, the appellants failed to establish that the issue of whether the appellant Bernard M. Alter (hereinafter Alter) breached his duty to the plaintiff by divulging confidential information which she allegedly imparted to him when he was her attorney in 2003 was actually litigated, squarely addressed, and specifically decided in a prior 2007 proceeding pursuant to Election Law article 16, in which Alter represented candidate Diana Johnson in her challenge to the plaintiff’s residency. "

This case cuts to the center of a legal malpractice case, nicely illustrating the difference between legal malpractice and all other disciplines.  Greene v Sager ; 2010 NY Slip Op 08068 ; Decided on November 9, 2010 ;Appellate Division, Second Department  is a twin story.  First the mistake by the attorney:  "The defendants were retained by the plaintiff to represent her and to recover damages for injuries she allegedly sustained when she stepped off a sidewalk and fell into a depressed area in a street in Queens, where the plaintiff alleges that she observed Consolidated Edison employees working on the day of her accident. The defendants failed to commence an action within the statute of limitations period, and the plaintiff commenced this action against them, alleging legal malpractice. "

Next, the additional step in proving legal malpractice and the aggressive defense offered by a competent legal malpractice firm.  Defense firms made motions for summary judgment on the slightest whim, and are often awarded for their audacity.  Here they were not.

"To succeed on their motion for summary judgment, the defendants were required to demonstrate that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action (see Conklin v Owen, 72 AD3d 1006, 1007; Shopsin v Siben & Siben, 268 AD2d 578). The defendants, as movants, failed to meet this burden (see Eisenberger v Septimus, 44 AD3d 994, 995; Shopsin v Siben & Siben, 268 AD2d at 578). The plaintiff similarly failed to meet her burden of establishing entitlement to judgment as a matter of law as to the defendants’ liability for malpractice since there were triable issues of fact whether she would have prevailed in the underlying action to recover damages for her injuries (see Theresa Striano Revocable Trust v Blancato, 71 AD3d at 1123; Eisenberger v Septimus, 44 AD3d at 995; Avery v Sirlin, 26 AD3d 451, 452). Accordingly, the Supreme Court properly denied the defendants’ motion and the plaintiff’s cross motion for summary judgment. "
 

Attorneys care about their clients.  Attorneys work hard and have reasons to perform good work.  Attorneys make mistakes, and have high case loads.  Attorneys have their own interests at heart. 

These are contradictory thoughts that cannot be reconciled.  Here, in the story of Richard F. Gluszak we see some of the contradictory story-lines.  "The Grievance Committee received a complaint from the Honorable Ira Warshawsky of the Supreme Court, Nassau County involving a default judgment taken against the respondent based upon his failure to answer a summons and complaint in the matter entitled Quarta v Gluszak, commenced in the Supreme Court, Nassau County, under Index No. 4427/08. The action alleged that the respondent diverted money from a client via a business credit link and that he failed to produce certain documents as mandated by a order of the Supreme Court, Nassau County, dated June 11, 2008. The complaint was based on a order of the Supreme Court, Nassau County, dated April 9, 2009, which found that the plaintiffs were entitled to judgment on their causes of action for professional malpractice and diversion of funds."

"The Grievance Committee received a complaint from Richard Ferris, dated May 27, 2009, alleging that the respondent claimed to be unable to return proceeds from a house sale he had deposited into his IOLA account. By letter dated June 19, 2009, sent to the address the respondent had listed with OCA, the Grievance Committee requested a copy of the respondent’s answer within 10 days and advised that an unexcused failure to reply constituted professional misconduct independent of the merits."

"The Grievance Committee received a complaint from Patricia Hodelin, dated December 18, 2009, alleging that the respondent misappropriated funds held in escrow for her and her late husband, and that he misappropriated funds entrusted to him by the Estate of Vernon Hodelin. "

"Although personally served with both the petition and the order to show cause on July 29, 2010, the respondent has failed to interpose any reply."

Practitioners are supposed to know not only how to gain a client, but how to settle a case without causing collateral damage.  One such trap, though well known, open and obvious, is the settlement of tort actions when plaintiff has been awarded Workers’ Compensation benefits.  In short, before settling a tort action where plaintiff has been awarded WC benefits, the permission of the WC compensation carrier must be obtained.  If it is not, then plaintiff will lose future WC benefits to an amount equal to the tort settlement. 

In Gowins v M. Weiss & Assoc., P.C.; 2010 NY Slip Op 33101(U); October 26, 2010;Supreme Court, New York County; Docket Number: 110928/08;;Judge: Judith J. Gische gives the controlling Appellate Division authority and permits amendment of the complaint to add Judiciary Law 487.

The controlling appellate authority on the facts presented is the case of Northrop
v. Thorsen, (46 AD3d 780 [2nd Dept. 20071). In Northrop, the attorney being sued for
malpractice, like the attorneys here, resolved an underlying tort action without first
obtaining the required approval of either the worker’s compensation carrier or the Court.
Unlike the case at bar, no effort was made to have the court approve the settlement
nunc pro tunc. The court held in Northrop, supra, that the lawyer’s failure to comply
with Worker’s Compensation Law §29(5) constituted professional negligence, without
the need for an expert witness. The court held further, however, that the duty to seek a
nunc pro tunc approval of the settlement rested with the attorney and the failure to do
so was “part of defendant’s malpractice.  This Court holds that plaintiff in this case is entitled to summary judgment on the issue of liability "

Plaintiff seeks to amend the complaint to assert a third cause of action based
upon violations of Judiciary Law 5 487. The gravamen of the complaint is that
defendants deliberately delayed and failed to provide him information about this and/or
the Worker’s Comp. Action for their own gain and/or advantageAt bar the a civil claim under Judiciary Law  487 may stand even when there is also a claim for legal malpractice. Moormann v. Perini & Hoerger, 65 AD3d 1106 (2nd Dept. 2009). Here, the proposed complaint states a cause of action. Defendants’ factual disputes about the viability of the claim can be fairly resolved at trial.".

Change in the law is sometimes revolutionary, and more often incremental.  A stunning example of incremental change is a trend in legal malpractice arising from matrimonial actions.  Often, if not universal, matrimonial actions are settled in open court stipulations, set on the record. For some historical reason, in matrimonial "allocutions" as well as in criminal plea allocutions, the Court asks the client whether client "is satisfied with the services of the attorney."  There is no apparent reasons or utility for this question.  It, however, serves to insulate the attorney from potential legal malpractice liability.

The Second Department has issued a ruling in this area, and now the First Department follows. In Weissman v Kessler , 2010 NY Slip Op 08009 ,Decided on November 9, 2010
Appellate Division, First Department the court decided that plaintiff could not successfully sue her matrimonial attorney.    "Moreover, as to all defendants, the evidence establishes that when entering into the settlement of the divorce action, plaintiff acknowledged in open court that she was satisfied with counsels’ representation, and that she entered into the settlement agreement with the knowledge that her husband’s real estate partnership investments had not yet been valued "(see Katebi v Fink, 51 AD3d 424 [2008])."
 

Matrimonial legal malpractice is typically all about the money – and the money is usually about equitable distribution. Money, or having to give it to someone else drives people insane. in this case it apparently drove the husband to solicit the murder of his wife. Luckily, the plan fizzled, and ended in divorce and equitable distribution instead. After settlement of the divorce case, husband sued his attorney. He lost in summary judgment, in an instructive decision.

In Pascarella v Goldberg, Cohn & Richter, LLP ; 2009 NY Slip Op 52193(U) ; ; Supreme Court, Kings County ; Hinds-Radix, J. we see how the court works its way through plaintiff’s claims. "On December 15, 2003, on the eve of trial on the ancillary issues in the matrimonial action, the parties entered into a stipulation of settlement (the settlement) which was placed on the record in open court before Justice Yancey. The settlement fixed Susan’s equitable distribution award at $400,000 and required that plaintiff pay it to her in lump sum by March 1, 2004.[FN15] In connection with the settlement, plaintiff testified under oath before Justice Yancey that (1) he heard and understood the terms of the settlement as it was placed on the record; (2) he discussed its terms with his lawyer (Mr. Goldberg), had enough time [*4]to speak with his lawyer about it, and required no additional time; (3) he was satisfied with the services of his lawyer; (4) he was not forced, threatened, or coerced to enter into the settlement; (5) the terms of the settlement were acceptable to him; and (6) he promised to live by its terms.
 

"Plaintiff’s first charge of malpractice is that Goldberg was negligent in failing to seek discovery from Susan concerning her non-marital property. The court notes that plaintiff and Susan were married from July 28, 1984 until September 1, 2001, when plaintiff abandoned the marital home, and thus were together for 17 years.[FN24] Yet, plaintiff has never claimed in any of his numerous affidavits filed in this action or in the matrimonial action that Susan had any non-marital property. Nor has plaintiff submitted to the court Susan’s Statement of Proposed Disposition, which was to indicate if she had any separate property. There is not one iota of evidence that suggests that Susan had any separate property. To the contrary, the gravamen of plaintiff’s legal malpractice claim is that plaintiff overpaid Susan because he used his own separate property, and not because Susan already had too much on account of her own separate property. Without some evidence of actual, ascertainable damages flowing from Goldberg’s alleged failure to conduct discovery, this branch of plaintiff’s legal malpractice claim fails (see Luniewski, 188 AD2d at 643).

"Plaintiff’s second charge that the settlement was coerced or fair has no merit. As stated, the matrimonial action was scheduled for trial on the equitable distribution issue when the parties entered into a settlement of $400,000, which was higher than plaintiff’s counter-offer of $300,000 and lower than Susan’s initial offer of $450,000. Plaintiff took the stand where he was allocuted on the settlement. He testified that he understood the settlement, wanted to accept it, and was satisfied with Goldberg’s services as his counsel. Plaintiff’s allegations in support of his claim that the settlement was a product of coercion or duress are inherently incredible and flatly contradicted by documentary evidence, including (1) the minutes of Justice Yancey’s careful and thorough allocution of plaintiff, during which he showed no sign that he was compelled to enter into the settlement, and (2) his "Affidavit of Appearance and Adoption of Oral Stipulation," in which he acknowledged that the terms of the settlement were fully explained to and understood by him, and that he consented to its terms voluntarily and with advice of counsel (see Kinberg v Kinberg, 50 AD3d 512, 513 [1st Dept 2008]).

"As a matter of policy, cases once settled should not be readily re-litigated as to their merits before another judge, where the original party has been released and the plaintiff’s original attorney has become the defendant. "Under those circumstances, the burden must be on the plaintiff seeking such a recovery to demonstrate by evidence rather than by conclusory allegations, that he indeed suffered substantial financial loss because of misdeeds by his attorneys and not by second guessing as to their judgment" (Becker v Julien, Blitz & Schlesinger, P.C., 95 Misc 2d 64, 68 [Sup Ct, New York County 1977], modified on other grounds 66 AD2d 674 [1st Dept 1978], appeal dismissed 47 NY2d 705 and 761 [1979], lv dismissed 47 NY2d 800 [1979]). "

Attorneys automatically obtain a charging lien by commencing an action.  There are several ways to lose that lien.  One is to be terminated "for cause" and another is to withdraw voluntarily.  This is different from being "consented out" or by withdrawing with mutual consent.  In Nassour v Lutheran Med. Ctr. ;2010 NY Slip Op 07906 ;Decided on November 3, 2010 ;Appellate Division, Second Department  we see the difference:
 

"Pursuant to Judiciary Law § 475, "[w]hen an action is commenced, the attorney appearing for a party obtains a lien upon his or her client’s causes of action . . . This lien attaches to any final order [*2]or settlement in the client’s favor" (Matter of Wingate, Russotti & Shapiro, LLP v Friedman, Khafif & Assoc., 41 AD3d 367, 370). "Where an attorney’s representation terminates upon mutual consent, and there has been no misconduct, no discharge for just cause, and no unjustified abandonment by the attorney, the attorney maintains his or her right to enforce the statutory lien" (Lansky v Easow, 304 AD2d 533, 534; see Klein v Eubank, 87 NY2d 459; cf. Matter of Winston, 214 AD2d 677). Where, however, an attorney withdraws without sufficient cause, his or her lien is automatically forfeited (see Hae Sook Moon v City of New York, 255 AD2d 292; Winters v Rise Steel Erection Corp., 231 AD2d 626). Here, Freedhand was not discharged by the plaintiff, but instead voluntarily withdrew. Since Freedhand failed to establish that there was just cause for his withdrawal, the Supreme Court should have vacated that portion of the judicial hearing officer’s determination that Freedhand was entitled to a fee (cf. Robinson v Friedman Mgt. Corp., 49 AD3d 436; Winters v Rise Steel Erection Corp., 231 AD2d 626). "