An oft repeated mistake in NY litigation, especially in NYC litigation is that of the leave to file a late notice of claim index number trap.  Put in short, plaintiff successfully seeks leave to file a late notice of claim, and then, using the same index number, files a summons and complaint against the governmental entity. This is a mistake, and will lead to dismissal.  Unless, Wait!  CPLR 2001 may apply and allow the Court equitably to fix the problem.  So we see a similar issue in MacLeod v County of Nassau ;2010 NY Slip Op 04344 ;Decided on May 18, 2010 ;Appellate Division, Second Department .
 

"In 2007, CPLR 2001 was amended to provide a measure of judicial forgiveness for certain mistakes that a plaintiff or petitioner might make with respect to the commencement of an action or special proceeding. On this appeal, the question presented is whether the plaintiffs, who filed a summons and complaint in a personal injury action with the appropriate clerk and within the applicable limitations period, but mistakenly filed those papers under the index number assigned to a related proceeding for leave to conduct pre-action disclosure that had been previously terminated, should, pursuant to the 2007 amendment to CPLR 2001, be deemed to have commenced the personal injury action on the date of that filing, where they later paid an additional index number fee. We answer that question in the affirmative.
 

On August 14, 2007, the MacLeods, intending to commence the personal injury action against the County and certain other defendants, filed a summons and complaint with the Nassau County Clerk. However, the MacLeods did not pay the filing fee, and failed to obtain a new index number. Rather, they mistakenly filed the summons and complaint under the index number assigned to the disclosure proceeding.

On August 17, 2007, the MacLeods served the County with the summons and complaint. Approximately three weeks later, the County interposed an answer, and made certain discovery demands. In its answer, the County did not raise any affirmative defense based on the MacLeods’ mistake with respect to the commencement of a personal injury action.

Subsequently, one of the parties attempted to file a request for judicial intervention, in order to schedule a preliminary conference. At that point, it was discovered that the summons and complaint bore the index number assigned to the disclosure proceeding, which had been terminated upon the issuance of the judgment (see CPLR 5011; Towley v King Arthur Rings, 40 NY2d 129, 132). The MacLeods were then informed that the index number was "invalid" (cf. Mandel v Waltco Truck Equip. Co., 243 AD2d 542, 543).

Thus, on June 2, 2008, the MacLeods paid an additional index number filing fee, obtained a new index number, and filed a new summons and complaint under that index number. The complaint was identical to the complaint filed by the MacLeods under the index number assigned to the disclosure proceeding. "

Plaintiff is a Czech national, married to a US citizen.  Matrimonial litigation takes place here in NY, and an allegation is made that the husband fraudulently denied the existence of a child, avoided child support issues, and in general, lied.  Plaintiff, wife, had several attorneys, and alleges that she was shuttled between attorneys, one hiring the next for her.  How do the motions to dismiss play out?

Koch v Sheresky, Aronson & Mayefsky LLP , decided by Justice Goodman in Supreme Court, New York County, sets forth the rules and decides the case based upon those rules.  She determines the difference in litigation between suing your attorney [in legal malpractice terms] and suing your husband’s attorney [in fraud terms.]

The Court also discusses redundancy of Judiciary law section 487 and the more general malpractice and fraud claims.  Does dismissal of one defendant’s case require dismissal of other defendants’ cases under "the law of the case"?  In this situation, no.

Justice Goodman quotes Peo. v. Evans 94 NY2d 499 (2000) for the holding that law of the case "does not contemplate that every trial ruling is binding on retrial: and that "distinctions must be made."

Reported in today’s NYLJ, we see the tragic story of an arrest, an attorney who does little or nothing, a conviction and a world turned upside down.  Plaintiff  obtains reversal and acquittal, thus demonstrating "actual innocence."  Glassman v. Blau is Referee Doyle’s decision on damages. 

"Defendant, an attorney, represented plaintiff in a criminal proceeding in New York Supreme Court, Criminal Term, based upon criminal charges for assault and battery and rape, as the result of claims made by defendant’s ex-wife.

Defendant did no preparation for the trial; he failed to interview witnesses; he failed to keep in contact with the plaintiff, never returning telephone calls and e-mails; he failed to cross-examine the People’s witnesses; he failed to put on any case for plaintiff and while originally informing the jury that plaintiff would testify, he failed to call plaintiff as a witness even though plaintiff wanted to testify.

Plaintiff was convicted of the felony of rape in the third degree and two misdemeanors of prohibited contact, on October 16, 2007." 

Nate Raymond  reports today: "Mr. Blau did not appear in the malpractice case, and the referee ordered judgment on default. Mr. Glassman will now seek to collect the sum, said his lawyer, Kenneth F. McCallion at McCallion & Associates in Manhattan. The decision in Glassman v. Blau, 111703/2008, by the referee, Nicholas Doyle, has given Mr. Glassman "some vindication with regard to his claims of being wrongfully and improperly and negligently represented by Mr. Blau," Mr. McCallion added.

The Special Referee’s decision will appear on page 25 of the print edition of tomorrow’s Law Journal.

"He hasn’t quite been able to get his life back, and probably never will," Mr. McCallion said. However, the written decision and a judgment against Mr. Blau gives Mr. Glassman "some minimal satisfaction," Mr. McCallion said.

A call to the last known number for Mr. Blau found it had been disconnected. He did not respond to an e-mail seeking comment.

The judgment would be the latest in a string of problems facing Mr. Blau. The Appellate Division, First Department, suspended him in February 2008 after he allegedly misappropriated nearly $764,000 from three clients’ funds. When Mr. Blau continued to practice law despite the suspension, the First Department disbarred him in October 2009. Other default judgments in suits by ex-clients have accumulated since the suspension."

Lurking in the back of the mind is the belief that all the work that has been put into this case may be for naught. 

Sometimes one reads a decision not knowing whether the court will dismiss or not dismiss.  Sometimes, the question is whether the attorney’s acts amount to legal malpractice or breach of fiduciary duty.  Here, the Court points out exactly how it perceives the case.  In B&R Consol LLC v. Powell we see the story of an attorney who is accused of handling a loan, receiving the pay-off, holding the money and making believe that the loan was still in existence.

Is taking money from the client by withholding the pay-off sum legal malpractice or breach of fiduciary duty.  The Court finds that "However, this failure, the failure to keep the plaintiff apprised of the status of the loan, and the bad advice given were clearly not stand-alone errors by Powell.  All were committed in the service of hiding the loss caused by the misappropriation, or at best, constituted an excuse for the loss – an excuse that would not relieve Powell of liability in any event."

The Court found the "facts" asserted in opposition to be patently incredible, "even under the generous standards to be applied to such opposing proof under the authority regarding summary judgment…."  Summary judgment was granted to Plaintiff.

 Dupree v. Vorhees,  68 AD3d 807, remains an interesting case.  Traditionally this type of case has been out of bounds. For policy reasons, courts do not like suits against your adversary’s attorney…they might come after every case if allowed. Here, however, after the Judiciary Law 487 claims were initially dismissed,, continued to remain dismissed on renewal, and then reversed on appeal.
 It is alleged that the husband’s attorneys deceived the court on an Order to Show Cause application, which permitted a receivership to be established while the wife’s attorney was kept from knowing about the application.

"Based upon events which occurred in an underlying divorce action, the plaintiff commenced this action against her former attorney, Oliver Raymond Voorhees III, her former husband’s attorney, Karyn A. Villar, and Villar’s law partner, Dorothy A. Courten. As is relevant [*2]to this appeal, the third cause of action sought damages for abuse of process against Villar and Courten, alleging that Villar made certain misrepresentations in applying for a receivership order in the underlying action. In the fourth cause of action, the plaintiff seeks treble damages against Villar and Courten under Judiciary Law § 487, alleging that Villar intended to deceive the court in connection with a receivership application. The complaint further alleged that because Courten and Villar were partners in the same law firm, Courten was vicariously liable for the damages the plaintiff sustained as a result of Villar’s alleged wrongdoing. "

"The court determined that a subsequent decision of the Court of Appeals in Amalfitano v Rosenberg (12 NY3d 8) provided a reason for granting renewal, and, upon renewal, to deny that branch of the motion which was to dismiss the complaint as against Villar with respect to the Judiciary Law § 487 cause of action. The court, however, denied the plaintiff relief with respect to the Judiciary Law § 487 cause of action against Courten, noting that Judiciary Law § 487 is rooted in the criminal law and that it would be inconsistent with this history and the statute itself to hold a second attorney responsible for the deceit of another unless the attorney participated in or ratified the wrongdoer’s actions. We disagree.

Partnership Law § 24 provides that "[w]here, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act" (Partnership Law § 24 [emphasis added]). Partnership Law § 26(a)(1) provides that "all partners are liable . . . [j]ointly and severally for everything chargeable to the partnership under section[ ] twenty-four." The pivotal test for liability in this regard is whether the wrong was committed on behalf of and within the reasonable scope of the partnership business, not whether the wrongful act was criminal in nature, or whether the other partners condoned the offending partner’s actions (see Rudow v City of New York, 642 F Supp 1456, affd 822 F2d 324; Muka v Wiliamson, 53 AD2d 950; see also Clients’ Sec. Fund v Grandeau, 72 NY2d 62). Therefore, the Supreme Court erred in adhering to the determination in the order dated May 1, 2008, dismissing the Judiciary Law § 487 cause of action against Courten. "

Depositions usually are scheduled and taken without undue turmoil.  Recent changes to the rules concerning the behavior of counsel at depositions have further regulated the proceedings.  Counsel may no longer make talking objections, may not direct their client not to answer, except in rare circumstances, and must be polite.  We’ve not heard of any more "barking dog" depositions in which one attorney baits the other.

Where the deposition takes place is rarely a question of anything other than "your office or mine?" but in this case defendants demanded an in-person deposition of the plaintiff who could not travel to the US anymore.  Here, in Koch v. Sheresky, Aronson & Mayefsky LLP, 112337/07
Decided: May 13, 2010 we see how Justice Goodman solved the problem:
 

"Presumably based upon the document from the American Embassy, plaintiff contends that under the Immigration and Naturalization Act (8 USC §1182 [a] [9]), a new application for admission to the country can only be entertained toward the end of 2010. Defendants offer no proof to contest this statement.

Thus, all of the cases relied on by defendants in support of their motion to require plaintiff to submit to an examination in New York, are inapposite and in those cases travel to New York was within the power and control of the party whose deposition was sought.

Courts have often directed the deposition of a party by video-conference, where the party had difficulty obtaining, or had been denied, a visa, or because of stringent U.S. travel restrictions with respect to the country of residence of the party to be deposed. See Doherty v. City of New York, 24 AD3d 275 (1st Dept 2005) (affirming an order to take deposition in Ireland, where plaintiff was denied necessary visa, and directing plaintiff to pay costs of defendant’s travel-related expenses); Semenov v. Semenov, 24 Misc 3d 1241(A), 2009 NY Slip Op 51836(U) (Sup Ct, Richmond County 2009)(granting application for live video-conference deposition of plaintiff and permission to use videotape at trial, where there were restrictive travel policies and stringent visa requirements for Latvian residents); Matter of Singh, 22 Misc 3d 288 (Sur Ct, Bronx County 2008)(permitting deposition of petitioner and other witnesses residing in India by video-conference, where affidavit submitted by attorney indicating that visa applications were denied by U.S. Embassy); Kirama v. New York Hospital, 13 Misc 3d 1246(A), 831 NYS2d 360, 2006 NY Slip Op 52356(U) (Sup Ct, NY County 2006) (ordering deposition by video conference in Morocco, where plaintiff could not obtain a visa and, thus, could not legally travel to the United States, despite her efforts and those of her counsel, her relatives and even the court). As in Kirama v. New York Hospital, plaintiff did not absent herself from New York in order to evade being deposed in New York, rather, she was required to leave the state because of the change in her immigration status (here, her conditional permanent resident status had expired).

Even assuming that, at some time in the future, plaintiff can obtain a visa to enter the United States her appearance will be completely dependent on the administrative process of the American Embassy and/or the Attorney General, who may grant exceptions to the normal requirements of the immigration law. 8 USC §1182 (d). Moreover, should the United States government again deny plaintiff’s request for a visa, thereby precluding her appearance in New York for deposition and/or trial, her ability to proceed with this litigation could be severely hampered, despite the fact that her complaint survived defendants’ motion to dismiss. Thus, it is preferable, for all parties, and for the court as well, that a reasonable process be provided to enable the oral examination of plaintiff by defendants to proceed, without the uncertainty involved in the visa application process.

In recent correspondence, counsel for plaintiff has offered to assume the costs of setting up a video-conference deposition, and to accommodate defendants’ schedules, in light of the time difference between New York and Prague. Counsel for plaintiff has also offered to pay travel costs of counsel for defendants, should they agree to depose plaintiff in person in the Czech Republic. The court will offer defendants a number of alternatives, which would avoid any undue prejudice. See Wygocki v. Milford Plaza Hotel, 38 AD3d 237 (1st Dept 2007) (because a deposition in New York would impose an undue hardship on an elderly resident of Ireland, the alternatives of a deposition on written questions, a deposition in Ireland, a deposition by telephone or video deposition, or deposition in New York 30 days before trial avoided any undue prejudice to defendant)."

 What is a question of judgment, what is neglect of a case and what is ignorance of the rules in legal malpractice? Sometimes this is an easy question, other times, slightly more complex. in MCCORD -v.- O’NEILL,; No. 08-3096-cv ; Summary Order; UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2010 U.S. App. LEXIS 5139 we see the 2d Circuit’s general definitions;
 

"Construing all the facts in McCord’s favor, an independent review of the record shows that the district court properly granted O’Neill’s motion for summary judgment. "To state a claim for legal malpractice under New York law, a plaintiff must allege: (1) attorney negligence; (2) which is the proximate cause of a loss; and (3) actual damages." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006). Under this standard, "[a] complaint that essentially alleges either an ‘error of judgment’ or a ‘selection of one among several reasonable courses of action’ fails to state a claim for malpractice." Id. (quoting Rosner v. Paley, 65 N.Y.2d 736, 481 N.E. 2d 553, 554, 492 N.Y.S.2d 13 (N.Y. 1985)). And, in general, "an attorney may only be held liable for ‘ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action.’" Id. (quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 554 N.Y.S.2d 487, 489-90 (N.Y. App. Div. 1st Dep’t 1990)).

Here, McCord’s malpractice claim rested on the allegation that O’Neill’s failure to contact Ron Lawrence, another employee of McCord’s former employer, as a possible witness constituted [*4] negligence, and that, had Lawrence been a witness in his case, the district court would not have granted Airborne’s motion for judgment of a matter of law and dismissed McCord’s discrimination claims. O’Neill met his initial burden of demonstrating that his decision was a reasonable strategic choice by showing that the only information regarding Lawrence in McCord’s possession at the time was Lawrence’s "Summary of Disciplinary/Attendance History." This document showed that Lawrence, a Caucasian, had received much the same disciplinary treatment as McCord, undermining McCord’s contention that calling Lawrence would have enabled him to demonstrate that his employer treated him less favorably than a similarly situated employee outside of his protected group. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). As the district court correctly observed, McCord adduced no evidence in response suggesting that O’Neill’s failure to contact Lawrence was negligent, or that this decision could have proximately resulted in the court’s unfavorable decision in Hill."

One aspect of legal malpractice litigation is the failure to follow developments in the law.  Rules change and not keeping up with the changes leads to mistakes, criticism and, later, litigation.  The rules for non-party discovery have undergone some changes over the years, and today’s decision is worth reading.

In Kooper v Kooper ; 2010 NY Slip Op 04147 ;Decided on May 11, 2010 ;Appellate Division, Second Department ;Angiolillo, J., J. the Court lays out an arc of procedure for non-party discovery.  Prior to 1984 a motion was required.  The rule was amended and then in 2002 the rule was amended again to allow for subpoenas instead of motions when seeking documents from a  non-party.  Now the rule again changes:
 

"Subsequent to Dioguardi, many of our cases involving nonparty discovery continued to hold that "special circumstances" must be shown (see e.g. Katz v Katz, 55 AD3d 680, 683; Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d 725, 726; Attinello v DeFilippis, 22 AD3d 514, 515; Tannenbaum v Tenenbaum, 8 AD3d 360; Lanzello v Lakritz, 287 AD2d 601; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d 482, 483; Tsachalis v City of Mount Vernon, 262 AD2d 399, 401; Mikinberg v Bronsther, 256 AD2d 501, 502; Matter of Validation Review Assoc. [Berkun- Schimel], 237 AD2d at 615; Wurtzel v Wurtzel, 227 AD2d 548, 549), while many of our most recent cases have avoided the "special circumstances" rubric (see e.g. Cespedes v Kraja, 70 AD3d 622; Step-Murphy, LLC v B & B Bros. Real Estate Corp., 60 AD3d 841, 843-844; Tenore v Tenore, 45 AD3d 571, 571-572; Smith v Moore, 31 AD3d 628, 629; Matter of Lutz v Goldstone, 31 AD3d 449, 450-451; Thorson v New York City Tr. Auth., 305 AD2d 666). In light of its elimination from CPLR 3101(a)(4), we disapprove further application of the "special circumstances" standard in our cases, except with respect to the limited area in which it remains in the statutory language, i.e., with regard to certain discovery from expert witnesses (see CPLR 3101[d][1][iii]). On a motion to quash a subpoena duces tecum or for a protective order, in assessing whether the circumstances or reasons for a particular demand warrant discovery from a nonparty, those circumstances and reasons need not be shown to be "special circumstances."

Whether or not our cases have applied the "special circumstances" standard, however, they contain underlying considerations which the courts may appropriately weigh in determining whether discovery from a nonparty is warranted. We look, then, to the reasoning in our cases to find guidance with respect to the circumstances and reasons which we have considered relevant to the inquiry with respect to discovery from a nonparty. Since Dioguardi, this Court has deemed a party’s inability to obtain the requested disclosure from his or her adversary or from independent sources to be a significant factor in determining the propriety of discovery from a nonparty. A motion to quash is, thus, properly granted where the party issuing the subpoena has failed to show that the disclosure sought cannot be obtained from sources other than the nonparty (see Moran v McCarthy, Safrath & Carbone, P.C., 31 AD3d at 726; Tannenbaum v Tenenbaum, 8 AD3d at 360; Lanzello v Lakritz, 287 AD2d at 601; Tsachalis v City of Mount Vernon, 262 AD2d at 401; Matter of Validation Review Assoc. [Berkun-Schimel], 237 AD2d at 615), and properly denied when the party has shown that the evidence cannot be obtained from other sources (see Cespedes v Kraja, 70 AD3d at 722; Tenore v Tenore, 45 AD3d at 571-572; Thorson v New York City Tr. Auth., 305 AD2d at 666; Bostrom v William Penn Life Ins. Co. of N.Y., 285 AD2d at 483). Our cases have not exclusively relied on this consideration, however, and have weighed other circumstances which may be relevant in the context of the particular case in determining [*6]whether discovery from a nonparty is warranted (see Abbadessa v Sprint, 291 AD2d 363 [conflict in statements between the plaintiff and nonparty witness]; Mikinberg v Bronsther, 256 AD2d at 502 [unexplained discontinuance of the action against the witness, formerly a party]; Patterson v St. Francis Ctr. at Knolls, 249 AD2d 457 [previous inconsistencies in the nonparty’s statements]).

We decline, here, to set forth a comprehensive list of circumstances or reasons which would be deemed sufficient to warrant discovery from a nonparty in every case. Circumstances necessarily vary from case to case.