The rules for attorney billing are different from those of any other profession.  While the general principals are the same, attorneys are required to utilize retainer agreements, or a similar document, while this is not true for accountants, dentists, etc.  There are consequences for the failure to use a retainer agreement, but Courts, especially the Second Department have permitted vast exceptions.  How does one understand the various factors?

One way is to read Constantine Cannon LLP v. Parnes,  2010 Slip Op  31956  a recent decision by Justice Edmead.  In this decision, she carefully dissects the various strands of claims and defenses.

"Plaintiff alleges that its invoices to defendants were carefully itemized, with each entry containing the date, amount of time, and a detailed description of the work performed, as well as the attorney’s name and billing rate. Mr. Matz, as the billing partner on defendants’ matters, reviewed each invoice before it was sent out, and his administrative assistant addressed and mailed each invoice to Ms. Parnes via first class mail (see the "invoices"). From September 2008 through February 2009, plaintiff provided defendants with approximately $630,000 worth of legal services, and defendants paid the invoices for those services without protest. "

"defendants’ "first affirmative defense and counterclaim" allege that plaintiff failed to issue defendants a written letter of engagement, pursuant to 22 NYCRR §1215.1. Therefore, plaintiff is barred from collecting a fee, and defendants are entitled to judgment against plaintiff for the full amount of all fees paid: $627,845.31. Defendants’ "second affirmative defense and counterclaim," allege that plaintiff "vastly overcharged" for its services, for example, charging for the time of persons apparently not admitted to the New York bar at the same hourly rate as admitted lawyers. "

The Court: "The rule covering engagement letters provides in relevant part: "[A]n attorney who undertakes to represent a client and enters into an arrangement for, charges or collects any fee from a client shall provide to the client a written letter of engagement before commencing the representation, or within a reasonable time thereafter" (22 NYCRR §1215.1). ""However, a law firm’s "failure to comply with the rules on retainer agreements (22 NYCRR 1215.1) does not preclude it from suing to recover legal fees for the services it provided" (Miller v Nadler, 60 AD3d 499, 500 [Sup Ct New York County 2009], citing Egnotovich v Katten Muchin Zavis & Roseman LLP, 55 AD3d 462, 464 [1st Dept 2008]; Nicoll & Davis LLP v Ainetchi, 52 AD3d 412 [1st Dept 2008]; Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 63-64 [2d Dept 2007]). The First Department explains in Nabi v Sells (70 AD3d 252, 253-254 [1st Dept 2009]): "Against the client’s unqualified right to terminate the attorney-client relationship is balanced the notion that a client should not be unjustly enriched at the attorney’s expense or take undue advantage of the attorney, and therefore the attorney is entitled to recover the reasonable value of services rendered." Further, the caselaw does not distinguish between the recovery of fees under a theory of quantum meruit or an account stated. Instead, this Court has held that [22 NYCRR §1215.1] "contains no provision stating that failure to comply with its requirements bars a fee collection action. Indeed, the regulation is silent as to what penalty, if any, should be assessed against an attorney who fails to abide by the rule" (Morgan, Lewis & Bockius LLP v IBuyDigital.com, Inc., 2007 WL 258305, 1 [Sup Ct New York County 2007] [emphasis added]). Therefore, defendants’ first affirmative defense fails to defeat plaintiff’s account stated and quantum meruit claims."

"[Courts] have held that the client may [not] use the attorney’s noncompliance [with 22 NYCRR §1215.1]…as a sword to compel disgorgement of fees already paid. This is particularly relevant with respect to plaintiff’s claim against [the defendants] since it appears that she has paid only a portion of the fees billed… . The issue has yet to be addressed by the First Department… . The Second Department [in Seth Rubenstein, P.C. v Ganea, supra]…ruled that the attorney discharged without cause was not precluded from recovering in quantum meruit the fair and reasonable value of the legal services provided, but did not address the issue of whether fees already paid were disgorgeable. That issue was determined by the Appellate Term, 9th & 10th Judicial Districts, in [Jones] v. Wright… where the court held that "while an attorney’s failure to comply with the provision does not entitle a client to a return of legal fees where the services have already been rendered…a client may seek to recover a fee already paid if it appears that the attorney did not properly earn said fee." This appears to be consistent with the well established principles that an attorney who is discharged for cause does not have the right to recover legal fees, provided "the misconduct relates to the representation for which the fees are sought."

(Most citations omitted) (Emphasis added).

The Court in Jones v Wright (2007 WL 2247199, 1 [App Term 9th & 10th Jud Dists 2007]), which is cited by the Matos Court, stated:

Indeed, while an attorney’s failure to comply with the provision does not entitle a client to a return of legal fees where the services have already been rendered, a client may seek to recover a fee already paid if it appears that the attorney did not properly earn said fee [citing Beech v Gerald B. Lefcourt, P.C., 2006 NY Slip Op 51092U, 4 (Civ Ct New York County 2006) ("While a client cannot maintain a cause of action for return of a legal fee based on noncompliance with Rule 1215.1, a client may seek recovery of the already paid fee grounded in a breach of contract theory, if an attorney did not properly earn any part of such fee")]."

 

 

 

 

Patriot Exploration, LLC v Thompson & Knight LLP ;  2010 NY Slip Op 06217 ;  Decided on July 27, 2010 ; appellate Division, First Department presents a discussion of forum non conveniens
 as well as the question of why this is a NY case?  Defendants wanted the case to be moved to Texas, notwithstanding the 2 year statute of limitations.  Plaintiff is represented by a Massachusetts attorney admitted pro haec vice.

 "In this legal malpractice action, the motion court did not abuse its discretion in declining to dismiss this action on forum non conveniens grounds (see Shin-Etsu Chem. Co., Ltd. v ICICI Bank Ltd., 9 AD3d 171, 175-77 [2004]). Since the court may grant a forum non conveniens motion "on any conditions that may be just" (CPLR 327[a]), which includes the power to impose "reasonable conditions designed to protect plaintiffs’ interests" (Chawafaty v Chase Manhattan Bank, 288 AD2d 58, 58 [2001], lv denied 98 NY2d 607 [2002]), the court could properly condition an inconvenient-forum dismissal on a waiver of the foreign forum’s
two-year statute of limitation (see e.g. Healy v Renaissance Hotel Operating Co., 282 AD2d 363, 364 [2001]; Seung-Min Oh v Gelco Corp., 257 AD2d 385, 387 [1999]; Highgate Pictures v De Paul, 153 AD2d 126, 129 [1990]). "

 

Nelson v. Patterson, 2010 NY Slip Op 31799 [Justice Mdden in NY County Supreme Court] is a case about loans, employment contracts, fraud and, oh yes, legal malpractice.  After a discussion of breached employment contracts and the like, the court grants plaintiff’s request to add a cause of action for quantum meruit.  "In general the existence of an express agreement ordinarily precludes recoery in quantum meruit.  However, where as her, a bona fide dispute as to the application of a contract is demonstrated, a plaintiff will not be required to elect his or her remedies."

Quantum meruit, breach of fiduciary duty and legal malpractice, all tied together, continue in this case.

When does the statute of limitations start to run in legal malpractice?  Is it on the day that former attorneys are "substituted out" or perhaps on the day that successor counsel sign a retainer agreement?  One answer is found in Fur Online v. Rivkin Radler, LLP, Supreme Court, New York County, Index No. 113292/08. 

There, Justice Friedman determines that CPLR 214(6) applies, and that the rule in Matter of Kliment, 3 NY3d 535 (2004) is illustrative.  Where the "underlying complaint is one which essentially claims that there was a failure to utilize reasonable care or where acts of omission or negligence are alleged or claimed, the statute of limitations shall be three years if the case comes within the purview of CPLR Section 214(6) regardless of whether the theory is based in tort or in breach of contract."

Here, the decision illustrates the problems inherent.  In a US District Court case, Judge John G. Koeltl so ordered a letter application to be relieved as counsel on September 14, 2005.  The attorney-client relationship ended on that day.  Another attorney purportedly took over the case on October 14, 2005, but this "does not show that plaintiff was continuously represented by defendant up until that date."

Result?  Case dismissed.

Frederick v Meighan ; 2010 NY Slip Op 06076 ;Decided on July 13, 2010 ;Appellate Division, Second Department is a case in which Supreme Court dismissed, sua sponte on the basis of statute of limitations, the Appellate Division reversed. 

When does the statute of limitations start to run in legal malpractice?  The easy answer is as of the date of the mistake, or, with continuing representation, on the last day the attorneys represent plaintiff.  But, the more complex answer is on the day that a cause of action for malpractice comes into existence.  It may be years later than either of the first two dates.  Here, the cause of action did not come into existence until the Appellate Division ruled in the underlying case.

"Following this Court’s decision on the appeal in the underlying action and the subsequent award of damages to the buyers, the plaintiff commenced this action against the Meighan defendants and the DeCaro defendants to recover damages for legal malpractice. As against the Meighan defendants, the plaintiff principally alleged that the inclusion of the executed construction agreement in the package of documents sent back to the buyers’ attorney constituted legal malpractice, as it enabled the buyers to obtain specific performance of the contract of sale (see Suchin v Frederick, 30 AD3d 503). As against the DeCaro defendants, the plaintiff principally alleged that their failure to interpose a rescission defense based upon mistake in the underlying action constituted legal malpractice. In addition, the plaintiff alleged that the DeCaro defendants’ failure to advise him of a potential legal malpractice claim against the Meighan defendants and to interpose a legal malpractice cross claim against them in the underlying action constituted legal malpractice.

At the outset, we find that the Supreme Court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint insofar as asserted against the Meighan defendants pursuant to CPLR 3211(a)(4) in view of the continued pendency of the first legal malpractice action against those defendants, which relief was not requested by any party in this action (see Clair v Fitzgerald, 63 AD3d 979, 980; Frankel v Stavsky, 40 AD3d 918, 919).

We further find that the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the Meighan defendants. In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442).
 

Contrary to the Meighan defendants’ contention, inasmuch as the plaintiff did not sustain "actionable injury" until this Court awarded the buyers specific performance in the underlying action, the plaintiff’s legal malpractice cause of action against them was not time-barred (McCoy v Feinman, 99 NY2d 295, 301; see Kerbein v Hutchison, 30 AD3d 730, 732). "

The question of whether legal malpractice litigation is tied to [and affected by] downturns in the financial and economic worlds is often asked.  Our answer is that legal malpractice litigation is apt to come up in every situation where attorneys are present. 

The Drier episode, punctuated by fraud, crimes and large money numbers is a prime example.  In this NYLJ article by Nate Raymond we see that opinion letters assuring some aspect of a transaction, issued by attorneys, are now the subject of a legal malpractice case.  From the article:

"Fortress Investment Group LLC filed suit against Ruskin Moscou Faltischek on Tuesday for allegedly issuing "utterly false" legal opinion letters used by ex-lawyer Marc S. Dreier, who is now in prison for his role in a massive Ponzi scheme.

In a complaint filed in Manhattan Supreme Court, Fortress claims the Uniondale-based law firm issued three letters that Mr. Dreier used to defraud the investment firm out of $50 million. The suit against Ruskin Moscou follows one filed by Fortress in December against Dechert that made similar allegations.

The Ruskin opinion letters, issued in 2006 and 2007, stated that the firm was "special transaction counsel" to companies controlled by real estate developer Sheldon Solow. But Fortress said Ruskin Moscou never checked with anyone working for Mr. Solow’s companies to confirm the relationship between the firm and Solow. Loan documents that Ruskin Moscou in its letters claimed to have been "duly executed and delivered" by the real estate companies had been forged by Mr. Dreier, the complaint said.

"We believe the suit is baseless and look forward to complete vindication through the judicial process," Barbara Cerrone, a spokeswoman for Ruskin Moscou, said in a statement."

 

Yesterday, the Appellate Division, First Department, reversed Supreme Court and reinstated the negligence causes of action on behalf of Mary Anne Fletcher against Boies Schiller in Fletcher v Boies, Schiller & Flexner, LLP; 2010 NY Slip Op 06140 ;Decided on July 20, 2010 .
 

From the Decision:  "Plaintiff, a fashion model, pleaded that a prominent agency mismanaged her and lost or withheld her crucial portfolio; that she had evidence of a scheme involving bogus expenses charged by that agency against other models; that images of her were profitably used by a large retail chain, wrongfully and without her authorization, via a subsidiary; and that a second agency had interfered with bookings that would have earned her $275,000, and instead booked another model for those jobs.

Plaintiff further pleaded that, when she consulted the Boies Schiller law firm and met with defendant Hayes, she was persuaded to turn over a large body of self-gathered evidence and told that her claims were worth large, specified amounts, and that the firm, and defendant Hayes concealed a conflict of interest between her and existing classes in state and federal actions; excluded her from the federal class action; subordinated her interests to those of other class members; participated lackadaisically in settlement discussions; and failed to timely file a claim in a crucial bankruptcy proceeding while successfully prosecuting the claim of the federal class.

The complaint should not have been dismissed insofar as it pleaded two causes of action for malpractice. Plaintiff has pleaded that, but for defendants’ malpractice in failing to advise her properly, she "would have avoided some actual
ascertainable damage" (see IMO Indus. v Anderson Kill & Olick, 267 AD2d 10, 11 [1999]), [*2]including sufficient detail as to the "nature of" the underlying claim (see Reid v Druckman, 309 AD2d 669 [2003]). She need not, at this early stage, offer a detailed pleading to support her quantifying her alleged loss (see Proskauer Rose Goetz & Mendelsohn v Munao, 270 AD2d 150, 151 [2000]). "

 

One theme that we have considered over the years is whether attorneys get preferential treatment in legal malpractice litigation.  Are motions to dismiss granted on too little evidence?  Do the attorneys get the benefit of the doubt?  Is the fact that legal malpractice law is written mostly by attorneys, is decided upon by attorneys and affects attorneys sometimes dispositive of the outcome?

Well, all that aside, sometimes the client just can’t help themselves.  Here is an example from today’s NYLJ:  Uzamere v. Uzamere;  KINGS COUNTY;  Justice Schack;

"Pro se plaintiff CHERYL D. UZAMERE (UZAMERE) moves by order to show cause for: summary judgment, pursuant to CPLR Rule 3212; and, upon the failure of all defendants to answer, pursuant to CPLR §3215, for a default judgment of $100,000,000.00 plus interest against defendants SENATOR EHIGIE EDOBOR UZAMERE a/k/a "GODWIN E. UZAMERE" (SENATOR UZAMERE), ALLEN E. KAYE, P.C., ALLEN E. KAYE, ESQ., HARVEY SHAPIRO, ESQ. (SHAPIRO), BERNARD J. ROSTANSKI (ROSTANSKI), and JACK GLADSTEIN, ESQ. (GLADSTEIN), in an action arising from defendants’ alleged misdeeds and misconduct related to plaintiff UZAMERE’s 1979 marriage and subsequent abandonment by SENATOR UZAMERE. Defendants ALLEN E. KAYE, P.C. and ALLEN E. KAYE, ESQ. will be collectively referred to as "KAYE."

Plaintiff UZAMERE, in her verified complaint, asserts that: defendant SENATOR UZAMERE retained KAYE in 1977 to apply for lawful permanent residence in the United States; defendants KAYE and SHAPIRO, an associate of defendant KAYE, suborned defendant SENATOR UZAMERE’s perjury by having him swear to false personal information on an immigration form, notarized in December 1979 by defendant ROSTANSKI; and, in 2003, defendant GLADSTEIN, defendant SENATOR UZAMERE’s divorce attorney, sent correspondence to plaintiff UZAMERE, using the alleged fraudulent name of "GODWIN UZAMERE," duping plaintiff UZAMERE into commencing a divorce action against defendant SENATOR UZAMERE. Further, plaintiff UZAMERE alleges, among other things, that defendants’ actions resulted in her: inability to obtain the use of her husband’s proper name; becoming an unwitting participant in "an act of green card marriage fraud for permanent residence" [¶20 of verified complaint]; financial deprivation; and, a victim of defendants’ fraudulent acts.

In three separate cross-motions, the first by defendants KAYE and SHAPIRO, the second by defendant GLADSTEIN, and the third by defendant ROSTANSKI, they all move to dismiss plaintiff UZAMERE’s complaint, pursuant to various subsections of CPLR Rule 3211. Defendants claim that plaintiff UZAMERE’s claims are barred: by res judicata and/or collateral estoppel, pursuant to CPLR Rule 3211 (a) (5); by lack of personal jurisdiction because of improper service of the instant verified complaint, pursuant to CPLR Rule 3211 (a) (8); by failure to state a cause of action upon which relief can be granted, pursuant to CPLR Rule 3211 (a) (7); and, by the applicable statute of limitation, pursuant to CPLR Rule 3211 (a) (5).

This Court finds that plaintiff UZAMERE failed to properly serve defendants and obtain personal jurisdiction over defendants. More important, this is not the first time that she has brought an action against these defendants based upon the same series of transactions and occurrences. In 2008, plaintiff UZAMERE commenced a previous action in Kings County Supreme Court against defendants but failed to proceed. Moreover, plaintiff UZAMERE failed to prevail on the merits in 2008 and 2009 in two separate Untied States District Court actions against these and other defendants based upon the same transactions and occurrences. The 2009 federal court action was dismissed by the United States District Court for the Southern District of New York. This was unanimously affirmed by the Second Circuit Court of Appeals and the United States Supreme Court denied a writ of certiorari.

Therefore, plaintiff UZAMERE’s order to show cause for summary judgment and a default judgment against defendants is denied for plaintiff’s failure to obtain personal jurisdiction and res judicata. Defendants’ three cross-motions to dismiss the complaint are granted. Plaintiff’s verified complaint is dismissed with prejudice. Further, plaintiff UZAMERE is enjoined from commencing future litigation in the New York State Unified Court System against defendants SENATOR UZAMERE, KAYE, SHAPIRO, ROSTANSKI and GLADSTEIN without prior approval of the appropriate Administrative Justice or Judge.

Background
 

9/11 is almost 10 years behind us.  Its direct effects may have passed, but the indirect effects still resonate.  Here is a fraud, foreclosure scam and legal malpractice case which arises out of the post 9/11 world.

Cullen v. Steinberg, 2010 U.S. Dist. LEXIS 62138 is a case in which plaintiff was the surviving widow of a murdered victim of 9/11.  She invested her compensation in real estate, and then fell prey to a variant of a scheme.  "In 2004, plaintiff received $ 1.9 million in compensation for her husband’s murder in the 9/11 attacks on the World Trade Center. She invested some of the money in [*4] real estate, buying residential property at 653 Jacey Drive in Fort Lee, New Jersey in 2004, and at 1400 Outlook Avenue in the Bronx in 2006."
 

"At a party in December 2006, plaintiff met Maximo (Max) Almonte, who had gone to grammar school with her. Almonte initially told plaintiff he was a stock broker; plaintiff learned in May 2007 that he was actually a felon who had been convicted of real estate fraud. Almonte moved in with plaintiff at 653 Jacey Drive two days after meeting her at the party.In late December 2006 or early January 2007, Almonte introduced plaintiff to Robert (Bob) Kotch, who, plaintiff later learned, had been convicted of mortgage fraud and had met Almonte while they were both in prison. Almonte took plaintiff to Kotch’s office in Manhattan’s Wall Street area to discuss plaintiff’s involvement in a potential real estate [*5] business in which Kotch and plaintiff would buy foreclosed homes and resell them for a profit. Kotch represented to plaintiff that if she invested $ 100,000, she would be able to earn an additional $ 90,000 in a short amount of time. Plaintiff orally agreed to this transaction during their meeting. She told Kotch she did not have the cash but that she owned the 653 Jacey Drive property and that it was not subject to any mortgage. Kotch told plaintiff that he could arrange a $ 100,000 loan for her, secured by that property."

"On or around March 13, 2007, at the request of Jason Steinberg, plaintiff signed a letter on behalf of Wholistic Change, LLC, authorizing the disbursement of $ 104,000 from the loan proceeds to "Private Lenders" [*8] (DX 5), the company Kotch purportedly was going to use to buy and sell foreclosed homes in partnership with plaintiff. It is Jason Steinberg’s practice to get written authorization from the borrower before a loan closing if any of the loan proceeds will be disbursed directly to third parties. On or around March 13, 2007, plaintiff signed an agreement with Ellissa Liebowitz of Be Approved which stated that plaintiff agreed to pay Be Approved, the broker, three percent of the total loan amount (DX 6). Both Jason and Ronald Steinberg understood the loan was being made to a corporation rather than an individual."

"Plaintiff’s second claim alleges that Jason Steinberg violated New York Judiciary Law Section 487 by deceiving or colluding to deceive plaintiff. Section 487 provides: "[a]n attorney or counselor 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 . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action."

 Section 487 only applies to an attorney’s conduct in a pending judicial proceeding. Mahler v. Campagna, 60 A.D.3d 1009, 1012-13, 876 N.Y.S.2d 143, 147 (2d Dep’t 2009); Jacobs v. Kay, 50 A.D.3d 526, 527, 857 N.Y.S.2d 81, 83 (1st Dep’t 2008); Tawil v. Wasser, 21 A.D.3d 948, 949, 801 N.Y.S.2d 619, 620 (2d Dep’t 2005) (Judicary Law Section 487 did not apply to conduct by attorney in a real estate transaction); Henry v. Brenner, 271 A.D.2d 647, 648, 706 N.Y.S.2d 465, 466 (2d Dep’t 2000); Stanski v. Ezersky, 228 A.D.2d 311, 313, 644 N.Y.S.2d 220, 223 (1st Dep’t 1996).

None of the alleged conduct by Jason Steinberg took [*21] place in the context of a judicial proceeding. Further, I find no deceit or collusion on the part of Jason Steinberg with the intent to deceive plaintiff. Accordingly, Jason Steinberg did not violate Section 487 of the Judiciary Law of the State of New York in connection with the loan to Wholistic Change, LLC. Thus, plaintiff’s second claim fails."

 

At the outset, we find that the Supreme Court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint insofar as asserted against the Meighan defendants pursuant to CPLR 3211(a)(4) in view of the continued pendency of the first legal malpractice action against those defendants, which relief was not requested by any party in this action (see Clair v Fitzgerald, 63 AD3d 979, 980; Frankel v Stavsky, 40 AD3d 918, 919).

"We further find that the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the Meighan defendants. In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). Here, in opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law, the Meighan defendants failed to demonstrate the existence of any triable issues of fact with respect to their liability for legal malpractice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Northrop v Thorsen, 46 AD3d 780, 784; Jampolskaya v Victor Gomelsky, P.C., 36 AD3d 761, 762). Contrary to the Meighan defendants’ contention, inasmuch as the plaintiff did not sustain "actionable injury" until this Court awarded the buyers specific performance in the underlying action, the plaintiff’s legal malpractice cause of action against them was not time-barred (McCoy v Feinman, 99 NY2d 295, 301; see Kerbein v Hutchison, 30 AD3d 730, 732). Also contrary to the Meighan defendants’ contention, their malpractice was a proximate cause of the injury in this case. If the DeCaro defendants are found to have also committed malpractice, the Meighan defendants and the DeCaro defendants may both be liable as successive tortfeasors who each contributed to the same injury (see Schauer v Joyce, 54 NY2d 1, 6; Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 66 AD3d 993, 994-995; Khlevner v Tylo, 16 Misc 3d 1129[A]).

The Supreme Court should have denied those branches of the DeCaro defendants’ cross motion which were for summary judgment dismissing so much of the complaint as alleged that they committed legal malpractice by failing to interpose a claim in the underlying action for rescission of the construction agreement based on mistake, by failing to interpose an affirmative defense in the underlying action of rescission based on mistake, and by arguing on appeal in the underlying action that the plaintiff instructed the Meighan defendants to send the construction agreement to the attorneys for the other parties to that agreement, which argument was contrary to the plaintiff’s testimony at the underlying trial. While the DeCaro defendants contend that a rescission defense based on unilateral mistake would not have been successful in the underlying action for specific performance, specific performance may be denied based on unilateral mistake [*4]where the other party must have been aware of the mistake (see Da Silva v Musso, 53 NY2d 543, 548; Sheridan Drive-In v State of New York, 16 AD2d 400, 405; Harper, Inc. v City of Newburgh, 159 App Div 695, 696-697). However, the Supreme Court should have granted that branch of the DeCaro defendants’ cross motion which was for summary judgment dismissing so much of the complaint as alleged that they committed legal malpractice by failing to advise the plaintiff of a potential legal malpractice claim against the Meighan defendants. As discussed above, the plaintiff lacked a viable legal malpractice claim against the Meighan defendants until this Court awarded the buyers specific performance.

in Frederick v Meighan ;2010 NY Slip Op 06076 ;Decided on July 13, 2010 ;Appellate Division, Second Department  we see the effect of Attorney 2 failing to clean up Attorney 1’s mistakes.  In addition we see an instance of what we believe to be a systemic aversion to legal malpractice cases.  Here, for example, Supreme Court sua sponte grants dismissal to Attorney 1 in this legal malpractice case; the Appellate Division not only reinstates the case, it grants summary judgment to plaintiff.  But, on to the substance"