Rothman v Sandra Radna, P.C. 2023 NY Slip Op 33670(U) October 17, 2023
Supreme Court, New York County Docket Number: Index No. 152678/2023
Judge: Lynn R. Kotler is a to-the-point analysis of a legal malpractice claim and a CPLR 3211 motion to dismiss.

“

After, the amended complaint was filed in this action on May 11, 2023, an evidentiary hearing was held in the matrimonial action before Justice Joseph R. Conway regarding the Firm’s charging lien in the amount of $121,158.65. That hearing was resolved pursuant to a so ordered stipulation dated May 22, 2023, which provides as follows:
Whereas, by motion filed in January 2022, plaintiff sought to vacate a charging
lien of her prior counsel, Law Offices of Sandra M. Radna, P.C. (“LOSMRPC”} in
the amount of $121,158.65;
Whereas, by order dated 12/12/22 Justice Conway determined that an evidentiary hearing was required to adjudicate whether LOSMRPC was discharged ·
from the representation of plaintiff with cause, or unjustifiably abandoned plaintiff
or engaged in any misconduct during the representation of plaintiff;
Whereas, the evidentiary hearing commenced on 5/18/23 during which plaintiff
completed her direct examination of Sandra M. Radna, Esq. of LOSMRPC;
Whereas, a full opportunity was provided to plaintiff to continue the evidentiary
hearing on 5/22/23. On said date, plaintiff moved the court for an order to withdraw the subject motion to vacate the charging lien of LOSMRPC.
It is therefore stipulated and agreed that:

1. Plaintiff’s motion to vacate the charging lien of LOSMRPC is withdrawn
   prejudice; and,
2. Plaintiff voluntarily waives herright to a continuation of the subject
   hearing; and,
3. It is acknowledged that there is no further controversy at said hearing;
   and,
4. LOSMRPC is authorized by plaintiff to withdraw its fee at issue, in the
   amount of $121,158.65 from the monies held in its Divorce IOLA as of
   5/22/23; and,
5. LOSMRPC hereby releases plaintiff from any and an claims and/or
   actions arising from the captioned matter.
   On this motion, defendants contend that plaintiff’s complaint is barred under the doctrine of collateral estoppel and fails to state a viable cause of action for legal malpractice in any event. Plaintiff opposes the motion, arguing that collateral estoppel does not apply and that defendants failed to introduce expert testimony after note of issue was filed, thereby costing plaintiff “a minimum of $825,000.00
   in lost valuation of the stock in the corporate business.” Plaintiff further contends that the defendants failed to produce a physicians affidavits concerning plaintiff’s injuries, that defendants. “never requested” that the referee invoke Bhckstern (99 AD2d 287 [2 Dept 1984]), which held that “‘marital fault’ can be considered in determining equitable distribution in extraordinary cases … ” and that defendants failed to provide the Referee with proof of the value of the assets and inventory of the marital business. On reply, defendants dispute plaintiff’s substantive claims about what happened in the underlying matrimonial action.”

“The court disagrees with defendants that the 5/22/23 Stipulation collaterally estops plaintiff from suing defendants for legal malpractice. Said stipulation provided that plaintiff waived continuation of a hearing to determine if the Firm was discharged from the representation of plaintiff with cause, or unjustifiably abandoned plaintiff or engaged in any misconduct during the representation of plaintiff, and plaintiff represented that there was no further controversy on those issues. Contrary to defendants’ contention, the issues in the hearing are not identical to plaintiff’s claims herein, which have morphed from what is claimed in the amended complaint to the arguments asserted in plaintiff’s memorandum of law in opposition to the motion. Thus, defendants’ collateral estoppel argument is rejected.”

Herz v London Indusi LLP 2023 NY Slip Op 33683(U) September 15, 2023
Supreme Court, Kings County Docket Number: Index No. 510794/21 Judge: Ingrid Joseph is a complicated and interesting case of accidental/medical malpractice death in a nursing home where a claim was made against the nursing home and for an accidental death insurance policy as well. Eventually, one cancelled out the other, and the attorneys who represented the estate in both cases were sued. While there was a settlement of the insurance policy claim, the med mal case was lost. Were the various attorneys negligent in how they handled the multiple cases?

The facts are too long to reproduce here. The Court eventually dismisses on “scope of the retainer” grounds as well as finding that the loss of a medical malpractice claim was too speculative.

“To state a cause of action alleging legal malpractice, a plaintiff must allege that the 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 duty proximately caused the plaintiff to sustain actual and ascertainable damages (Rudolf v Shayne, Dachs, Stanisci, Corker, & Sauer, 8 N.Y.3d 438 [2007]; Philip S. Schwartzman, Inc. v Pliskin, Rubano, Baum, & Vitulli, 215 A.D.3d 699 [2d Dept. 2023]; Park/ex Associates v Flemming Zulack Williamson Zauderer, LLP, 118 A.D.3d 698 [2d Dept.2014 ]). A cause of action for legal malpractice cannot be stated in the absence of an attorney-client relationship ( Windsor Metal Fabrications, Ltd. v Scott & Schechtman, 286 A.D.2d 732 [2d Dept. 2001]). Generally, to plead causation, the plaintiff must allege that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney’s negligence (Rudolf at 442; PhilipS Schwartzman,
Inc. at 703; Park/ex Associates at 970). Furthermore, the claimed “actual and ascertainable damages” have to be clearly calculable (see Rudolph; Gallet. Dreyer & Berkey, LLP v Basile, 141 A.D.3d 405 [1st Dept.2016]). Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action (Philip S. Schwartzman, Inc. at 704; Katsoris v Bodnar & Milone, LLP, 186 A.D.3d
1504 [2d Dept. 2020}; Gall v Colon;.Sylvain, 151 A.D.3d 698 [2d Dept. 2017]).

In, Grace v. Law, 24 N.Y.3d 203 (2014]. the Court of Appeals held that prior to commencing a legal malpractice action, a party \vho.is likely to succeed on appeal of the underlying action is required to press their appeal beforehand. If the client is not likely to succeed, then they may bring a legal malpractice action without first pursuing an appeal (Id.). Consequently, a defendant in a legal malpractice action can assert that a plaintiff is now barred from bringing the action by establishing that the client failed to pursue an appeal in the underlying action, that would likely have been successful (Id.; see also Buczek v Dell & Little, LLP, 127 A.D.3d 1121 [2d Dept. 2015]).

Here, Plaintiffs have failed to plead a viable cause of action for legal malpractice. With respect to RusoKarl, Plaintiffs’ conclusory statements that the RussoKarl firm is a successor in interest to the Indusi firm is insufficient to establish an attorney-client relationship and state a claim for legal malpractice. Plaintiffs have failed to allege specific facts upon which the existence of an attorney-client relationship or
privity exists between themselves and the RussoKarl firm or establish that they would have prevailed in the underlying action but for RussoKarl’ s negligence.

Additionally, Plaii1tiffs have failed to plead actual and as.certainable damages. While Plaintiffs attach an expert affirmation and deposition testimony to support their claims that the acts of the individuals involved in the Medical Malpractice actions were negligent, Plaintiffs only state in a conclusory fashion that the Medical Malpractice action-would have resulted in monetary recovery but for Sine!, lndusi, or RusoKarl and Gerace’s negligence. Such allegations are insufficient to establish actual and ascertainable damages necessary to plead a cause of action for legal malpractice.”

The social policy enforced by courts in NY requiring privity of contract between the client and the attorney (contrast with commercial law, strict product liability and the difference between tort and contract law) comes up in some strange ways.

Suing the lawyer provided by a union is one specialized problem. The issue is illustrated in Dowlah v Professional Staff Congress (PSC- CUNY), 2023 NY Slip Op 33616(U)
October 17, 2023, Supreme Court, New York County, Docket Number: Index No. 151561/2022, Judge: Eric Schumacher.

“Plaintiff commenced this action on February 21, 2022, alleging legal malpractice against defendants as to their representation of plaintiff in arbitration proceedings that ultimately resulted in the termination of plaintiffs employment.
The amended complaint (hereinafter complaint) alleges that PSC is the collective
bargaining representative of faculty at the City University of New York (hereinafter CUNY) and Zwiebach is PSC’s Legal Director. CUNY employed plaintiff as an associate professor at Queensborough Community College (hereinafter QCC). The complaint further alleges that, in 2014, QCC denied plaintiff’s application for promotion to a full professorship.

The complaint further alleges thatPSC filed a grievance over the 2014 denial, and, in Julie 2016, negotiated a settlement on plaintiff’s behalf that provided for the referral of his application to a select committee of three CUNY professors.

The complaint further alleges the select committee ultimately.denied plaintiff’s
application for full professorship, and that, in May 2018, plaintiff sent an email to the select committee members stating that “bringing down a fellow colleague so unscrupulously and so unjustly may bring great joy to your miserable lives,” but that it made plaintiff “feel like a piece of dirt” (NYSCEF doc. no. 5 at 3). Plaintiff further stated: “I damn you all to hell-may your bodies and souls burn in eternal fires” (id.). The email resulted in QCC. bringing disciplinary charges against plaintiff for conduct unbecoming of a member of the staff and proposing terminating his employment due to professional misconduct (see NYSCEF doc. no. 6, exhibit B).”

“A cause of action for malpractice cannot be maintained as against an individual attorney hired by plaintiffs union to handle a disciplinary proceeding under the union’s CBA (see Cherry v Koehler & Isaacs LLP, 96 AD3d 507 [1st Dept 2012]). Under such circumstances plaintiff is limited to bringing an action against the union for breach of the duty of fair representation (see Palladino v CNY Centro, Inc., 23 NY3d 140, 152 [2014]) because, in that instance, plaintiffs · malpractice claims are preempted by federal labor law, as those claims arise out of defendant attorney’s representation of the union during plaintiffs disciplinary proceedings under the union’s CBA (see Frontier Pilots Litig. Steering Comm., Inc. v Cohen, Weiss & Simon, 227 AD2d 130, 131 [1st Dept 1996]; see also Klingsberg v Council of Sch. Supervisors & Adm’rs Local 1, 181 AD3d 949, 950-951 [2d Dept 2020]).

Here, plaintiff asserts that he is bringing an action for malpractice and not for breach of
the duty of fair representation, stating, “[t]his case .. .is not filed as a claim in fair
representation … [t]his is an action arising in legal malpractice” (NYSCEF doc. no. 26 at 26). Yet plaintiff does not dispute that Kolko was engaged as the attorney for PSC to handle the arbitration hearing under the CBA on behalf of plaintiff. As such, Kolko cannot be subjected to a malpractice cause of action by a union member.”

Emmanuel Assoc., LLC v Cullinan 2023 NY Slip Op 33478(U) October 5, 2023
Supreme Court, New York County Docket Number: Index No. 159627/2022
Judge: Lori S. Sattler is the story of a restaurant needing the outdoor and backyard space and then being squeezed by Local Law 11 scaffolding taking away the space. Were the attorneys to blame?

“

This case arises out of Cullinan’s efforts to operate a restaurant in a ground floor
commercial space with a backyard (collectively “Restaurant Space”) located at 937 Second Avenue in Manhattan (“Building”). As part of these efforts, Cullinan formed nonparty 937 Second Ave Corp. (“937 Second”), which leased the Restaurant Space from Plaintiff Emmanuel Associates, LLC (“Emmanuel”). According to Cullinan, he relied on statements made by Lee, whom Cullinan states is a manager of Emmanuel as well as a member of the Building’s Board (“the Board”), that, in addition to the indoor space and backyard which were the subject of the lease, the restaurant would be able to use the sidewalk outside the Building. Thereafter, the Board took steps to perform required Local Law 11 work on the Building, leading it to refuse to allow 937 Second to use both the backyard and sidewalk. A series of transactions and lawsuits followed, during which 937 Second Ave was represented by the Bailey Defendants.

On July 24, 2020, Emmanuel and 937 Second signed a lease for the Restaurant Space
(“Lease”) and Cullinan executed a guaranty for 937 Second’s obligations under the Lease
(“Guaranty”). According to Emmanuel, 937 Second defaulted on its obligations under the Lease on or about December 1, 2021 by failing to pay rent and other required fees and Cullinan likewise breached his obligations under the Guaranty.”

“In Motion Sequence 002, the Bailey Defendants contend that Cullinan fails to state a
cause of action for legal malpractice and breach of contract because they represented 937 Second, not Cullinan individually. They further argue that in any event Cullinan’s alleged damages are merely speculative because the Underlying Actions are still pending. They further argue that Cullinan’s claims for breach of fiduciary duty, breach of contract, and indemnification are duplicative of the malpractice claim. In the alternative, they request that this action be stayed pending the resolution of the Underlying Actions. Cullinan argues in opposition that his Answer has set forth facts to support all his causes of action.

To state a cause of action for legal malpractice, a party must allege that “(1) the attorney
was negligent; (2) the attorney’s negligence was a proximate cause of [the party’s] losses; and (3) [the party] suffered actual damages” (RTW Retailwinds, Inc. v Colucci & Umans, 231 AD3d 509, 510 [1st Dept 2023], citing Excelsior Capitol LLC v K & L Gates LLP, 138 AD3d 492 [1st Dept 2016]). As the Underlying Actions are ongoing, any assessment of damages arising from the Bailey Defendants’ representation would be purely speculative (see Kahan Jewelry Corp. v Rosenfeld, 295 AD2d 261 [1st Dept 2002] [malpractice action dismissed where underlying action remained pending]). Cullinan’s argument that the Bailey Defendants’ purported negligence delayed his pursuit of his “rights and remedies” against Emmanuel and Lee is similarly speculative. Therefore, the first counterclaim for malpractice is dismissed.”

Gopstein v Bellinson Law, LLC 2023 NY Slip Op 33476(U) October 4, 2023
Supreme Court, New York County Docket Number: Index No. 159060/2022
Judge: Mary V. Rosado is an example of what courts fear in the legal malpractice field: metastasizing suits, each based upon the earlier suit. The rule of privity surely exists to stop the otherwise inevitable suit against your opponent’s attorney right after the end of the underlying case. Here, a personal injury case is followed by a permissible case against the attorneys who litigated it, and then a case against the new attorneys who came in to settle the legal malpractice case.

” To state a cause of action for legal malpractice, in addition to an attorney-client
relationship, the complaint must set forth “the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Leder v Spiegel, 31 AD3d 266 [1st Dept 2006]). Further, the Appellate Division, First Department has held that “[a] claim for legal malpractice requires that a plaintiff allege facts that, if proven at trial, would demonstrate that the 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 duty proximately caused plaintiff to sustain actual and ascertainable damages”‘ (Kaplan v Conway & Conway, 173 AD3d 452 [1st Dept 2019] quoting Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2017]). Further, in order to survive a motion to dismiss under CPLR 321 l(a)(7), “the complaint must show that but for counsel’s alleged malpractice, the plaintiff
would not have sustained some actual ascertainable damages” (Pellegrino v File, 291 AD2d 60 [1st Dept 2002]). “Conclusory damages … or injuries predicated on speculation cannot suffice” for a legal malpractice claim (Pellegrino at 64). “[A] failure to establish proximate cause required dismissal. .. regardless [ofJ whether negligence is established (Id. at 63).

Accordingly, in order to plead successfully a cause of action for legal malpractice, Plaintiff must plead, in non-conclusory fashion, that but for Defendants’ alleged negligence Plaintiff would have succeeded in the prosecution of both the Underlying Malpractice Action and the Underlying Personal Injury Action. The Court finds that Plaintiff has failed to do so. Without providing any basis whatsoever for the $160,000.00 claimed in damages on each of his causes of action, Plaintiff’s Complaint inartfully alleges, in conclusory fashion, that Defendants’ negligence and malpractice was the proximate cause of the damages sustained by Plaintiff (NYSCEF Doc. 2 at if40). Such conclusory damages predicated on speculation are insufficient to satisfy the pleading standard for a legal malpractice claim (Pellegrino at 64). Accordingly, Defendants’ motion to dismiss Plaintiff’s legal malpractice claim is granted.”

It is unusual, and definitely an exception to the requirement of privity of contract between a client and the attorney in order to make a good legal malpractice claim, but such claims can be made in the absence of privity where fraud, collusion, malice or other special circumstances are alleged. Hager v Inner Circle Logistics, Inc.,
2023 NY Slip Op 33395(U), September 28, 2023, Supreme Court, Kings County
Docket Number: Index No. 525941/2022, Judge: Reginald A. Boddie gives the background.

” The initial complaint alleged six causes of action, breach of contract against ICL, money had and received against ICL, unjust enrichment against ICL, fraudulent inducement against ICL, permanent injunction against Riverside and declaratory judgment against all defendants. Plaintiff now seeks to amend the complaint to include a claim against Philips Nizer, a law firm involved in the transaction, and its attorneys Landis and Rosenberg. Plaintiff also sought to add additional claims against the SDC Defendants. However, subsequent to the filing of the motion, those claims were resolved and consequently withdrawn. Therefore, the court need only address the remaining relief sought, wherein plaintiff seeks to amend the complaint to add malpractice and tort claims against Philips Nizer, Landis and Rosenberg and make additional edits.”

“Here, defendants argue, “a threshold inquiry in a legal malpractice claim is whether an
attorney-client relationship exists. An attorney may be liable for malpractice to a third party only if there is “near privity” with the third-party. Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity or near-privity for harm caused by professional negligence. As defendants aptly acknowledges, citing Gifford v Harley, 62 AD2d 5 [3d Dept 1978], an attorney may be held liable to third parties if he or she has been “guilty of fraud or collusion or of a malicious or tortious act.”

Plaintiff also agrees and argues, “[ w ]hile privity of contract is generally necessary to state a cause of action for attorney malpractice, liability is extended to third parties, not in privity, for harm caused by professional negligence in the presence of fraud, collusion, malicious acts or other special circumstances,” citing Ginsburg Dev. Cos. v Carbone, 85 AD3d 1110, 1111 [2d Dept 2011]. Further, plaintiff asserts the subject firm and attorneys were aware of the terms of the money deposit and loan and intentionally evaded their obligations, causing plaintiff to suffer damages. Therefore, the court finds neither the malpractice nor prima facie tort claims palpably improper or devoid of merit at this juncture. Moreover, the additional edits in the proposed amended complaint do not appear to be improper. Accordingly, the motion is granted in its entirety.”

In Sage v Neil H. Greenberg & Assoc., P.C. 2023 NY Slip Op 04787 Decided on September 27, 2023 Appellate Division, Second Department there is not a lot of explanation, but the Judiciary Law 487 claim was dismissed for lack of sufficient allegations of deceit.

“Neil H. Greenberg and Associates, P.C., a law firm, and its managing attorney, Neil H. Greenberg, represented Jose Sanchez and Antonio Mejia Palacio in an action commenced in the United States District Court for the Eastern District of New York against, among others, Ethan Sage and Oceanside First Class Roofing, Inc., inter alia, to recover damages for unpaid overtime wages and for failure to provide wage statement notices as required by Labor Law § 195(3). In August 2018, the District Court dismissed the claims for unpaid overtime wages, but found in favor of Sanchez and Palacio on the causes of action alleging a violation of Labor Law § 195(3). Sanchez and Palacio were awarded statutory damages, as well as attorneys’ fees and costs in connection with the Labor Law § 195(3) claims.

In October 2020, Sage and Oceanside First Class Roofing, Inc., commenced this action to recover damages for malicious prosecution and violation of Judiciary Law § 487. The complaint alleged, among other things, that Greenberg and Neil H. Greenberg and Associates, P.C. (hereinafter together the defendants), prosecuted the federal action based on false testimony from Sanchez and Palacio. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. “

“The Supreme Court also properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Judiciary Law § 487. Pursuant to Judiciary Law § 487(1), an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages (see Cordell Marble Falls, LLC v Kelly, 191 AD3d 760, 762). “A violation of Judiciary Law § 487 requires an intent to deceive” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762). “[T]o establish liability under section 487, the plaintiff must show that the defendant acted with intent to deceive him or her or the court” (Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d 785, 787). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637, affd 35 NY3d 173; see Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d at 785). Here, the factual allegations in the complaint, even as amplified by the plaintiffs’ evidentiary submissions in opposition to the defendants’ motion, were insufficient to establish that the defendants acted with intent to deceive the plaintiffs or the court (see Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762; Michalic v Klat, 128 AD2d 505, 506; Shaffer v Gilberg, 125 AD3d 632, 636).”

Jarmuth v Wagner 2023 NY Slip Op 04820 Decided on September 28, 2023 Appellate Division, First Department is the story of a co-op shareholder bringing what was in essence a derivative action against the co-op’s attorneys concerning co-op litigation. The shareholder did not succeed in pleading legal malpractice.

“To properly plead a cause of action for legal malpractice, a plaintiff must allege negligence on the part of the attorney, that the attorney’s conduct was the proximate cause of the injury to plaintiff, and that plaintiff suffered actual and ascertainable damages (see RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]).

Here, the complaint’s allegations are too vague and lacking in specificity with respect to the purportedly negligent legal advice given to the co-op concerning the settlement of an underlying action and the status of its contractual right to recover legal fees incurred in that action to permit any assessment of whether the advice was incorrect, let alone negligent. This failure by plaintiff to adequately allege negligence on the part of defendant attorneys requires dismissal of this legal malpractice action (see Lloyd’s Syndicate 2987 v Furman Kornfeld & Brennan, LLP, 182 AD3d 487, 488 [1st Dept 2020]). In any event, plaintiff cannot point to settled law that refutes and renders negligent the alleged legal opinion in connection with this particular fee provision, which has facial ambiguities as to its scope and applicability.

Moreover, even if the advice and conduct detailed by plaintiff in her appellate brief had adequately been alleged and sufficient to satisfy the pleading element of attorney negligence, dismissal of the malpractice claim would still be required because plaintiff did not, and cannot, adequately plead that this advice and conduct was the proximate cause of damage suffered by the co-op. The complaint contains no nonconclusory allegations suggesting that the purported negligence by defendants was the “but for” cause of the co-op sustaining actual damages (see Drasche v Edelman & Edelman, 201 AD3d 434, 435 [1st Dept 2022], lv denied 38 NY3d 906 [2022]; Silverstein v Pillersdorf, 199 AD3d 539, 540 [1st Dept 2021]). Had the complaint included the allegations raised by plaintiff on appeal, they still would nothave pleaded proximate cause sufficient to support the legal malpractice claim (see e.g. Ozimek v DiJoseph, 204 AD3d 448 [1st Dept 2022], lv denied 38 NY3d 911 [2022]; Menkes v Solomon & Cramer LLP, 203 AD3d 514 [1st Dept 2022]).”