An auto accident.  Severe injuries.  A multi-million dollar settlement.  Is that the end of the story?   TOKYO MARINE AND NICHIDO FIRE INSURANCE CO., LTD., as subrogee for Mitsubishi Motors Credit of America, Inc., Plaintiff, -against- ROSALIE CALABRESE and LOUIS FACCIPONTI, Defendants. ROSALIE CALABRESE and LOUIS FACCIPONTI, Third-Party Plaintiffs, -against- RUSSO & APOZNANSKI, and MONTFORT, HEALY, MCGUIRE & SALLEY, LLP, Third-Party Defendants. RUSSO & APOZNANSKI, Cross-Claimant, -against- MONTFORT, HEALY, MCGUIRE & SALLEY, LLP, Cross-Claim Defendant, MONTFORT, HEALY, MCGUIRE & SALLEY, LLP, Cross-Claimant, -against- RUSSO & APOZNANSKI, Cross-Claim Defendant,

07-CV-2514 (JS) (AKT);  UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK; 2010 U.S. Dist. LEXIS 95079

Here, we see how the ever-shifting cast of attorneys and insurers have cast the trial of plaintiff’s injury claim as simply a first act.  After the plaintiff leaves the stage, the regular players start their own action to determine who pays the money.

How does the court decide who will pay the settlement in the end?  By applying the known and well settled rules of legal malpractice.  "In objecting to Magistrate Judge Tomlinson’s Order, the Third Party Defendants contend that London Fischer can face contribution liability even though it owed no duty to Ms. Calabrese, Mr. Facciponti, or the Third Party Defendants. In this regard, the Third Party Defendants rely principally on Shauer v. Joyce, 54 N.Y.2d 1 (N.Y. 1981) and Nassau Roofing & Sheet Metal Co. v. Facilities Development Corp., 71 N.Y.2d 599 (N.Y. 1988). But this reliance is misplaced.

In Shauer, the New York Court of Appeals held that an attorney sued for legal malpractice could bring a contribution claim against another attorney who represented the same client in the same [*5] matter, under a theory that it was the second attorney’s negligence that at least partially caused the client’s injuries. Shauer, 54 N.Y.2d at 5. Here, however, London Fischer never represented the Third Party Defendants’ clients, but rather a co-defendant and that defendant’s insurer. So, unlike in Shauer, the Third Party Defendants and London Fischer did not owe a duty to the same client, and London Fischer’s alleged negligence in representing its clients cannot reduce the Third Party Defendants’ potential liability to Ms. Calabrese and Mr. Facciponti.

Nassau Roofing Company is equally inapposite. There, the New York Court of Appeals held that, "[w]hile the culpable party from whom contribution is sought will ordinarily have breached a duty owed directly to the injured party, this is not invariably so," and noted that "[i]n the unusual case the right to apportionment may arise from the duty owed from the contributing party to the party seeking contribution." 71 N.Y.2d at 603 (internal citations and quotations omitted). Here, however, London Fischer did not owe a duty to either the allegedly injured parties (Ms. Calabrese and Mr. Facciponti) or the parties seeking contribution (the [*6] Third Party Defendants). Indeed, if anything, London Fischer’s obligations were potentially adverse to Ms. Calabrese, Mr. Facciponti, and the Third Party Defendants, because it represented a co-defendant who may have had divergent and conflicting interests. See generally DeAngelis v. American Airlines, Inc., 06-CV-1967, 2010 WL 1270005, at *3 (E.D.N.Y. Mar. 26, 2010) (noting that co-defendants can have "starkly divergent interests").

The Third Party Defendants also argue that, under Nassau County, "[t]he critical requirement for apportionment . . . is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought." 71 N.Y.2d at 603. But, contrary to the Third Party Defendants’ claims, this does not mean that the Third Party Defendants can seek relief predicated on London Fischer’s allegedly negligent representation of co-defendants with potentially divergent or conflicting interests. For, under New York law, a party can seek damages stemming from legal practice only if it enjoys "actual privity" with the allegedly negligent attorney, or a relationship "so close as to approach privity." 76 N.Y. Jur. [*7] 2d Malpractice § 39. And here, the Third Party Defendants lacked privity, or anything "approach[ing]" privity with London Fischer."
 

In a remarkably detailed and reasoned decision, Justice NeMoyer of Supreme Court, Erie County dissects the holding of Carvalho v New Rochelle Hosp. 53 AD2d 635 [2d Dept 1976].  Carvalho is a seminal case in trial practice, which permits questioning of one party [lawyers as well as doctors] as experts in their own case.

In Grisanti v Kurss ;2010 NY Slip Op 51579(U) ; Decided on September 10, 2010 ; Supreme Court, Erie County ;NeMoyer, J.  writes:
 

""In an action for malpractice brought against more than one physician, one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness . . .. Where, however, the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from [being deposed] as an expert" (Carvalho, 53 AD2d at 635).
Applying those rules, the Carvalho court held it proper for plaintiff’s counsel to ask the first, but proper for the defendant-witness’s counsel to advise the witness not to answer the second, of the following two questions:

1) "[I]s the presence of a fecalith in any way significant to the possibility of the development of an intra-abdominal abscess postoperatively?"; and
2) ""Would it have been good medical practice for a doctor having removed an appendix and receiving this pathology report subsequent to the removal of the appendix to have requested a culture and sensitivity on the purulent exudate material described in the pathology report?"

"This Court has serious misgivings about the provenance (let alone the sense) of the first rule set out in Carvalho, i.e., that the defendant-witness may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness. That rule is not to be found in, and does not seem in the least to be suggested by, either of the two decisions cited by the Second Department in Carvalho (see McDermott v Manhattan Eye, Ear & Throat Hosp., 15 NY2d 20, 27 [1964]; Johnson v New York City Health & Hosps. Corp., 49 AD2d 234 [2d Dept 1975]). McDermott unequivocally holds that "a plaintiff in a malpractice action is entitled to call the defendant doctor to the stand [i.e., at trial] and question him both as to his factual knowledge of the case (that is, as to his examination, diagnosis, treatment and the like) and, if he be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community" (McDermott, 15 NY2d at 29-30 [parenthetical material in original; bracketed material supplied]; see Gilly v City of New York, 69 NY2d 509, 511 [1987] [reading McDermott as holding that plaintiff could "examine his doctor-opponent as fully and freely as other qualified witnesses, and that such testimony could include expert opinion"]). In its subsequent decision in Johnson, the Second Department addressed nothing beyond the issue [*6]of whether the McDermott holding "should be extended to examinations before trial," holding that it should, for the common-sense reason "that the scope of the pretrial examination is even broader than that at the trial" (Johnson, 49 AD2d 234, 236-237). Neither McDermott nor Johnson involved a defendant-physician’s being asked to opine specifically on the conduct of a codefendant-physician in relation to the standard of care, and thus neither decision went so far as to say that such opinion would not be a proper area of inquiry of the defendant-witness in a medical malpractice case.

With regard to the internal logic of the Second Department’s holding in Carvalho, it is impossible for this Court to discern why the second Carvalho question ran afoul of the Carvalho rule while the first question did not. Neither of the Carvalho questions referred explicitly to the due care or dereliction of the co-defendant physician; and both questions arguably went to the witness’s knowledge of a particular medical standard within his expertise. With regard to the external logic of the Carvalho holding, both Carvalho questions fell well within the compass of the McDermott-Johnson rule permitting the defendant-witness to be questioned as an expert for the purposes of eliciting his "knowledge of" the facts of plaintiff’s case and "establishing the generally accepted medical practice in the community" (McDermott, 15 NY2d at 29-30; see also Harley v Catholic Med. Ctr. of Brooklyn, 57 AD2d 827, 828 [2d Dept1977] [holding it permissible at EBT to ask defendant-pediatrician about the effects on the infant of certain medicines given by codefendant-obstetrician during the mother’s labor, inasmuch as such questions did not "bear solely on the alleged negligence of the codefendant physician"]).

Apart from the foregoing, this Court has serious doubts that the decision in Carvalho would be rendered today, in the era of 22 NYCRR part 221."
 

Trusts and estates law and legal malpractice cases often intertwine.  A unique and singular thread runs through them.  Death is almost always a part of the equation, and often, there is a question of whether the attorney represented decedent or beneficiary.  Beyond the simple question of death, there is almost always a long gestation period between the act [creating a trust, writing a will, suggesting a certain estate vehicle] and the damage. 

Here, in  DROZ, v. KARL, III, ESQ.; PARAVATI, KARL, GREEN & DeBELLA; PATRICK J. HART, CPA; and MOORE & HART, CPA, 6:09-CV-920;UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK; 2010 U.S. Dist. LEXIS 93326;September 8, 2010, Decided plaintiff loses on each of the two horns.
 

"In order to sustain a legal malpractice claim, a plaintiff must show: (1) the existence of an attorney-client relationship, (2) negligence, (3) which is the proximate cause of a loss, and (4) actual damages. See Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (citing Prudential Ins. Co. v. Dewey, Ballantine, Bushby, Palmer & Wood, 170 A.D.2d 108, 114, 573 N.Y.S.2d 981 (N.Y. App. Div. 1st Dep’t 1991), aff’d, 80 N.Y.2d 377, 605 N.E.2d 318, 590 N.Y.S.2d 831 (1992)); see also Moran v. Hurst, 32 A.D.3d 909, 910, 822 N.Y.S.2d 564 (N.Y. App. Div. 2d Dep’t 2006) ("To recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship."). While the payment of a fee or existence of a formal retainer agreement may be indicators of an attorney-client relationship, such factors are not dispositive. See Moran, 32 A.D.3d at 911. An attorney-client relationship may instead arise by words and actions of the parties; however, one party’s unilateral belief, standing alone, does not confer upon him or her the status of a client. Id."
 

"While the correspondence Droz has presented might otherwise raise a triable issue of fact, these assertions are insufficient in light of his own prior sworn affidavit. "[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s previous deposition testimony." Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (citing Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). A party does not show a triable issue of fact merely by submitting an affidavit that disputes his own prior sworn testimony. See, e.g., Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991). However, a material issue of fact may be exposed by the party’s subsequent sworn testimony that adds to, or explains, but does not merely contradict, his prior testimony. See Villante v. Dep’t of Corr. of N.Y.C., 786 F.2d 516, 522 (2d Cir. 1986). [*10] Plaintiff has not presented any testimony which adds to, or explains his prior affidavit demonstrating his understanding that Karl represented Scheidelman."
 

"Under New York State law, the statute of limitations for a legal malpractice action is three years. N.Y. C.P.L.R. 214(6). Generally, the action 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 N.Y.2d 295, 301, 785 N.E.2d 714, 755 N.Y.S.2d 693 (2002) (citing Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 644 N.E.2d 1009, 620 N.Y.S.2d 318 (1994)). In most cases, the accrual date is the day an actionable injury occurs, even if the aggrieved party is ignorant of the wrong or injury at that time. [*14] McCoy, 99 N.Y.2d at 301. "What is important is when the malpractice was committed, not when the client discovered it." Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 750 N.E.2d 67, 726 N.Y.S.2d 365 (2001) (citing Glamm v. Allen, 57 N.Y.2d 87, 95, 439 N.E.2d 390, 453 N.Y.S.2d 674 (1982))."
 

"On these facts, the three-year statute of limitations began to run on the date of the alleged malpractice in 1994, and Droz would have had until 1997 to bring an action. The continuous representation doctrine does not apply to toll the statute of limitations because the sporadic communications between plaintiff and Karl relating to the Trust, over a thirteen year period, do not rise to the level required by the continuous representation doctrine. See Droz Aff. ¶ 33. Further, the "mutual understanding" requirement articulated in McCoy has not been met. Defendants contend after the Trust’s execution in 1994, there was no mutual understanding that further representation with respect to the Trust would be required, and that neither plaintiff nor Karl appreciated that there might be any issue with the manner in which the Trust was drafted until 2007, when the Foundation began investigating the basis for its Surrogate Court’s action.

The continuous representation doctrine is inapplicable, and thus the ordinary three-year statute of limitations applies. As there are no issues [*16] of material fact as to the accrual date of the action, the plaintiff’s legal malpractice claim is also barred by the statute of limitations."

There are two instances in New York law where an expert might be necessary in legal malpractice litigation.  One is at the trial of the matter, and the other at a motion for summary judgment.  In general, an expert is necessary in any litigation where the "issues in this case are not part of an ordinary person’s daily experience."

In Suppiah v Kalish , 2010 NY Slip Op 06540 , Decided on September 7, 2010 , Appellate Division, First Department  defendant moved for summary judgment and plaintiff opposed the motion with the affidavit of an expert and some other affidavits.  The case was about immigration law legal malpractice. 
 

"According to plaintiff, he informed WFI that he was interested in gaining employment elsewhere. He also maintains that WFI refused to provide him with his original H1-B visa approval notice and other documents, which were in WFI’s exclusive possession and were necessary for him to prove his immigration status to prospective employers. Then, plaintiff claims, WFI retaliated against him by "benching" him, i.e., refusing to assign him any more work. Plaintiff alleges that the benching caused him to violate his visa, which required him to work to maintain his legal immigration status. WFI denies that it benched plaintiff and claims that it terminated him for legitimate business reasons. In December 2000, plaintiff resumed working for WFI. Plaintiff claims that the benching ended because he made clear his desire to continue working for WFI. WFI asserts that it simply decided to rehire plaintiff.

In May 2002, with the expiration date of his H1-B visa approaching, plaintiff asked defendant to take steps to ensure his continued legal status. Instead of petitioning for an extension of plaintiff’s existing H1-B visa, which he had done previously, defendant filed a petition for a new H1-B visa."
 

"The IAS court granted defendant’s motion and dismissed the complaint. The court did not expressly address plaintiff’s position that defendant did not establish his prima facie entitlement to summary judgment. However, it did find that plaintiff failed to raise an issue of fact regarding his claim that defendant committed malpractice.

We reverse because defendant failed to satisfy his prima facie burden of establishing entitlement to judgment as a matter of law. The issues in this case are not part of an ordinary person’s daily experience, and to prevail at trial, plaintiff will be required to establish by expert testimony that defendant failed to perform in a professionally competent manner (see Gertler v [*3]Sol Masch & Co., 40 AD3d 282 [2007]; Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [2005]). As this is a motion for summary judgment, the burden rests on the moving party – here, defendant – to establish through expert opinion that he did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community (see R.A.B. Contrs. v Stillman, 299 AD2d 165 [2002]; Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 284 [1999]). Also, defendant was required, on this motion, to establish through an expert’s affidavit that even if he did commit malpractice, his actions were not the proximate cause of plaintiff’s loss (see Tran Han Ho v Brackley, 69 AD3d 533 [2010]). By failing to submit the affidavit of an expert, defendant never shifted the burden to plaintiff. "

Legal malpractice cases are unlike anything else…they all have a prior case background, and each must contain proofs of the "but for" variety.  Put another way, law of the case is almost always a consideration in legal malpractice cases.  Could plaintiff have won the underlying case?  Does dismissal of the underlying case fatally flaw a subsequent legal malpractice case?  How does the handling of the underlying case affect the subsequent legal malpractice case are all different formulations of the same question.

Justice York, of Supreme Court, New York County recently wrote on this issue in Metropolitan Plaza WP LLC v. Goetz Fitzpatrick, LLP., 2010 NY Slip OP 32389(U).  There, certain findings of the US Bankruptcy Court seem central to the legal malpractice case.  Defendants claim that the entire complaint should be dismissed pursuant to the doctrine of law of the case because "all of plaintiff’s causes of action are predicated on the erroneous assertion that the findings in the bankruptcy decision also constitute the law of the case in this action…" 

Plaintiffs responded that they "do not rely upon" the bankruptcy decision, "nor claim reliance upon it, nor is it argued that this is the law of the case." 

The Court finds "that the most reasonable interpretation to be accorded to this complaint is to conclude that plaintiffs rely heavily upon the persuasive effect of the bankruptcy decision, but not to the extent of asserting that it constitutes the law of the case in this action.  Simply put, the complaint does not say what defendants say It does.  Therefore, the court rejects defendant’s first dismissal argument."

In Ramirez v. 164  West 146 Street LLC, the question is raised whether a tenant, illegally evicted because the warrant of eviction named a former landlord and not the current landlord may successfully sue the landlords’ attorney.  The answer is, no.  Justice York of Supreme Court, New York County sets forth the reasoning.

Plaintiff here sued all parties with the same causes of action.  In doing so, she sued the attorneys for "procuring the eviction" and "illegal lockout".  These causes of action, which might well be successful against the landlord [and which permit treble damages] may not be raised against attorneys.  Her claims against the attorneys may sound only in legal malpractice.

Here, the question of privity is raised, and it is dispositive against plaintiff.  Absent fraud or collusion, or a malicious or tortious act, a non-client may not sue her opponent’s attorney for legal malpractice.

The City Marshall, in the same position, finds himself in the same boat regarding his cross-claim.  No privity, no case.

It’s not often that one sees an insurer v. defense attorney legal malpractice case, but this one seems to have very big damages.  Law firm Barry, McTiernan & Moore, a well known defense firm in New York defended a synagogue fire case that was valued in excess of $ 16 million.  The insurer alleges malpractice in AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY and LUMBERMENS MUTUAL CASUALTY COMPANY,  – against –BARRY, MCTIERNAN & MOORE, ;09 Civ. 8742;UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 89553;August 26, 2010, Decided
 

It’s still early going, but plaintiffs successfully added individual defendant attorneys to the caption.

we’ll follow this case as it proceeds.

The relationship between a motion to dismiss [CPLR 3211]. a request to amend the pleadings, and dismissal on the merits is wrought with both emotion yet is based upon logic.  No author of pleadings appreciates a motion to dismiss.  The motion generally brays that there is "no merit", the pleading is "frivolous", is badly written, etc.

Yet, the rule of logic generally prevails.  A pleading in legal malpractice  must adequately plead that the defendants "failed to exercise that degree of care, still, and diligence commonly possessed by a member of the legal community," and that their negligence was "a proximate cause of damages" (DeNatale v Santagelo, 65 AD3d 1006, 1007), and,is sufficient to state a cause of action to recover damages for legal malpractice.

"[M]otions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit" (Aurora Loan Servs., LLC v Thomas, 70 AD3d 986, 987; see CPLR 3025[b]; Tyson v Tower Ins. Co. of N.Y., 68 AD3d 977, 979; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978, 979-980).

And so it went in Feldman v Finkelstein & Partners, LLP ,2010 NY Slip Op 06517 ,Decided on August 31, 2010 , Appellate Division, Second Department , a legal malpractice case.  "Contrary to the defendants’ contention, there is no indication that the Supreme Court considered evidentiary submissions and, thus, the issue to be determined at this stage is not whether the plaintiffs have a cause of action, but only whether they have stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Sokol v Leader, 74 AD3d at 1181-1182). Accordingly, the Supreme Court improperly granted that branch of the defendants’ motion which was to dismiss the first cause of action. "