The general rule is that one may not sue an attorney, unless that attorney was working for you. Privity is the concept that the attorney was hired by you, and worked for you. You may not sue the other party’s attorney, no matter how badly you were treated in court by that attorney.

As in all things, there are exceptions. Fraud, malicious behavior, and special circumstances might allow plaintiff to sue an attorney not his own. It did not work in this case, however. Fred W. Nelson, etc., respondent, v Stanley Kalathara, v. Claude Simpson, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2008 NY Slip Op 1313;

"A predecessor guardian had sold property belonging to the incapacitated person. The lawyer represented the purchasers and the purchasers’ lender in that transaction. The successor guardian alleged that the predecessor guardian misappropriated, inter alia, funds that were received from that closing that belonged to the incapacitated person. The appellate court held that the successor guardian’s allegations against the lawyer, that by virtue of his role in the real property sale, he knew or should have known that the incapacitated person would rely on his skills as an attorney to issue checks payable to the guardian, and not to the predecessor guardian individually, did not fall within the narrow exception of fraud, collusion, malicious acts, or other special circumstances under which a cause of action alleging legal malpractice may have been asserted absent a showing of actual or near-privity. "

For those who grew up in the shadow of WWII, the Nazis were a foreboding presence.  The war was over for the parents, and children learned of the war, the atrocities and the aftermath.  For the family in this case, Matter of Jacobsen ;2010 NY Slip Op 50816(U) ;Decided on May 10, 2010
Sur Ct, Monroe County , even in upstate NY, the war has never really ended.  Now, after a trip to the SDNY, the 2d Circuit and back, a legal malpractice portion ends.
 

"This case primarily comes before this Court to determine which of the parties is entitled to seek restitution for assets that were confiscated by the Nazi party in Germany in 1939. The Decedent, Gabriella Jacobsen, and her sister, Marianne Reitz Baer, were each entitled to half of the estate of Clara Kirstein, their mother, upon Clara’s death in Leipzig, Germany in 1939. However, upon Clara’s death, those assets ("the Kirstein Assets") were confiscated from the estate, and therefore did not pass to Gabriella and Marianne. Gabriella died on December 8, 1957 in Monroe County, New York survived by her husband, Erich Jacobsen, an infant son, Godfrey Jacobsen, and other family members, including the Petitioner, Thekla Stein Nordwind, and the remaining surviving distributees, Greta Hoerman, Peter Franke-Ruta and Michael Franke (collectively "the Nordwind Parties").[FN1] Gabriella’s will, which left her estate to her husband, Erich Jacobsen, was admitted to probate on January 21, 1958. Erich Jacobsen died on December 16, 1977. Pursuant to Erich’s will, his residuary estate passed to his son, Godfrey Jacobsen. Godfrey Jacobsen died on August 10, 1980, and left his residuary estate to Christel Gauger, who was not a blood relative of Godfrey or his parents, Gabriella and Erich Jacobsen. Christel Gauger died on September 23, 2008, a resident of Germany, and Dr. Michael Gauger ("Dr. Gauger" or "Respondent") was appointed as the German equivalent of her Executor and residuary beneficiary. Thekla Nordwind was appointed administrator of the Estate of Gabriella Jacobsen by this court on July 7, 2009 in order to pursue the Kirstein Assets.
 

No claim for restitution for the Kirstein Assets was filed by the June 30, 1993 deadline, so recovery was later sought through the Claims Conference, an organization that established a Goodwill Fund for those who did not file claims before the GPCA deadline. The Nordwind Parties retained an attorney, David J. Rowland, Esq., to file a claim with the Claims Conference on their behalf. Through circumstances that are not before this Court, in the end Mr. Rowland filed a claim on behalf of Ms. Gauger while arguably still representing the Nordwind parties, and obtained an Erbschein (a German certificate of inheritance) from the German Courts that established Ms. Gauger’s rights to pursue reparations for the Kiersten Assets due to her being Godfrey Jacobsen’s proper "legal successor" pursuant to the terms of the GPCA.

The issue sought to be determined by this Court, i.e., whether the Nordwind Parties are entitled to the right to pursue reparation under German Law, has been previously decided by the United States District Court for the Southern District of New York, in Nordwind v. Rowland, 2007 WL 2962350 (S.D.NY Oct. 10, 2007) (Pogue, J., sitting by designation) (the "Federal Court Action"). The Southern District’s decision was later affirmed by the United States Court of Appeals for the Second Circuit (Nordwind v. Rowland, 584 F.3d 420 (2d Cir. 2009), and the Nordwind Parties’ petition for panel rehearing before the United States Court of Appeals for the Second Circuit was denied (Order, Docket Number 07-4862-cv, (Dec. 10, 2009)). Despite the fact that the issue currently before this Court was raised in the context of the malpractice action against Mr. Rowland, the District Court fully addressed, under both German and New York law, whether the Nordwind [*3]Parties had an entitlement to the Kirstein Assets that originally would have gone to Gabriella Jacobsen.

The District Court completely determined the issue presented by the instant petition based both on German and New York law such that there is no ruling this Court could make on this matter that would not be barred by collateral estoppel."

We think there is no more difficult case in litigation than a legal malpractice action arising from a medical malpractice case.  The issues of proximity and "but for" multiply and boggle the mind.  One needs a medical expert as well as a legal expert, and while having to prove the causation in a medical malpractice case, hypothetically is difficult anyway, moving on to prove the causation in the legal malpractice portion squares rather than doubles the effort.

In Palumbo v Dell ; 2010 NY Slip Op 03889 ; Decided on May 4, 2010 ; Appellate Division, Second Department we see an example. In a simple situation in which the note of issue was not timely filed, plaintiff loses the whole case for lack of a medical expert.  Note that suing the attorney who did not file the note of issue is practically impossible, as proximate cause now must be proven to the 4th power.
 

"An action dismissed pursuant to CPLR 3216 may be restored only if the plaintiff can demonstrate both a reasonable excuse for the default in complying with the 90-day notice and a meritorious cause of action (see Picot v City of New York, 50 AD3d 757; Sapir v Krause, Inc., 8 AD3d 356, 356-357; Lopez v Imperial Delivery Serv., 282 AD2d 190, 197). Here the plaintiff failed to demonstrate the merits of his legal malpractice action, which alleged that the defendants were negligent in failing to pursue a strict products liability claim against the manufacturer of a phacoemulsification unit utilized during the plaintiff’s cataract surgery. Notably, the record is devoid of any expert medical evidence establishing the merits of the products liability claim, and there is no other showing that the plaintiff would have succeeded on such a claim (see N.A. Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730, 732; Matera v Catanzano, 161 AD2d 687, 688; see also Ideal Steel Supply Corp. v Beil, 55 AD3d 544; Payette v Rockefeller Univ., 220 AD2d 69, 74). Accordingly, the Supreme Court [*2]properly denied the plaintiff’s motion (see Mosberg v Elahi, 80 NY2d 941, 942; Serby v Long Is. Jewish Med, Ctr., 34 AD3d 441). "
 

Sometimes, the highest court in the State answers the questions, and sometimes its the lowly Civil Court.  In Kushner v Eliopulos ;2010 NY Slip Op 50798(U) ;Decided on May 3, 2010 ;Civil Court Of The City Of New York, Kings County ;Fisher, J. we see a comprehensive decision setting forth all aspects of attorney-client compensation.
 

"[Despite the fact that Defendants failed to sign the retainer agreement, there was an implied promise that Defendants would pay the costs for Plaintiff’s legal services. Plaintiff proffered an agreement which the Defendants rejected. The absence of a signed written retainer agreement does not preclude the recovery of legal fees. Minz v. Gold, LLP v. Hart, 48 AD3d 526 (2nd Dept. 2008). An attorney who fails to obtain a written retainer agreement may recover the reasonable value of services rendered on a quantum meruit basis. Seth Rubenstein, PC v. Ganea, 41 AD3d 54 (2nd Dept. 2007); Volosevich v. Nunziata, 2008 NY Slip Op 51697U (NY Sup. Ct. 2008).
 

It is well established that a client may terminate his relationship with an attorney at any time with or without cause. Friedman v. Park Cake, Inc., 2006 NY Slip Op 8171 (1st Dep’t 2006); Campagnola v. Mulholl, 76 NY2d 38 (1990). Defendants terminated Plaintiff on April 15, 2009. When an attorney is discharged for cause, the attorney has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. Id. When an attorney is discharged without cause, the attorney is limited to recovering in quantum meruit for the reasonable value of the services rendered. Id.

An attorney who is discharged without fault has an immediate right to recover the fair and reasonable value of the services rendered, determined at the time of discharge, and computed on the basis of quantum meruit, namely the value of the services. Cohen v. Grainger, Tesoriero & Bell, 81 NY2d 655 (1993); Lai Ling Cheng v. Modansky Leasing Co., 73 NY2d 454 (NY 1989); Reubenbaum v. B. & H. Express, Inc., 6 AD2d 47 (1st Dep’t 1958); In re Estate of Montgomery, 272 NY 323 (1936). If a client exercises the right to discharge an attorney after some services are performed, but prior to the completion of the services for which the fee was agreed upon, the discharged attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the completed services. Id. at 454; In re Cooperman, 83 NY2d 465 (1994). In general, factors to be considered include: (1) the time and labor required, the difficulty of the questions involved, and the skill required to handle the problems presented; (2) the lawyer’s experience, ability, and reputation; (3) the amount involved and benefit resulting to the client from the services; (4) the customary fee charged for similar services; (5) the contingency or certainty of compensation; (6) the results obtained; and (7) the responsibility involved. Diaz v. Audi of Am., Inc., 2008 NY Slip Op 10118, 2 (2d Dep’t 2008); Matter of Thompson, 2009 NY Slip Op 7855, 2 (2d Dep’t 2009).

An attorney’s alleged violation of a disciplinary rule does not, by itself, give rise to a private cause of action. Steinowitz v. Gambescia, 2009 NY Slip Op 51370U, 2 (NY App. Term 2009). However, in some cases conduct constituting a violation of a disciplinary rule may constitute evidence of malpractice. Steinowitz v. Gambescia, 2009 NY Slip Op 51370U, 2 (NY App. Term 2009). In legal malpractice actions the claimant must establish that "but for" the attorney’s negligence the result of the prior case would have been more favorable. Carmel v. Lunney 70 NY2d 169 (1987); Lemke v Zurich N. Am., 2009 NY Slip Op 29545 (NY Misc. 2009). "
 

It is said that problems, or bad things, come in threes.  In this example, the client lost a contract action, in which he had good counterclaims, because of his attorney’s failures.  Plaintiff then sues the attorney, and in Benson Park Assoc., LLC v Herman ;2010 NY Slip Op 03847 ;Decided on May 6, 2010 ;Appellate Division, First Department  the defendant attorney defaulted on an answer.  Then, the attorney for defendant apparently defaulted on the motion for partial summary judgment itself.
"In the underlying action, defendant failed timely to file an answer on behalf of plaintiff, and a default judgment was entered against it (Mega Constr. Corp. v Benson Park Assoc. LLC, 60 AD3d 826 [2d Dept 2009]).

A party seeking to vacate a judgment on the basis of excusable default must demonstrate both a reasonable excuse and a meritorious defense (Mutual Mar. Off., Inc. v Joy Const. Corp., 39 AD3d 417, 419 [2007]). The court properly denied defendant’s third request for an adjournment of plaintiff’s motion for
partial summary judgment (see Matter of Desmond K. v Kevin K., 59 AD3d 240 [2009], lv denied 12 NY3d 711 [2009]; Treppeda v Treppeda, 212 AD2d 592 [1995]). While in support of the motion to vacate the default, defendant claimed that he had had a "previously scheduled engagement," he offered nothing to substantiate this claim. Moreover, at no time after the motion for partial summary judgment was submitted did defendant seek leave to submit opposition. In addition, defendant failed to offer a meritorious defense to the malpractice claim, other than to question the amount of damages. "

Continue Reading Problem after Problem in Legal Malpractice Litigation

It is an anachronism in New York practice that there is no specific time in which to name an expert.  While the 3d and 4th departments have rules that derive from case law [and not specifically, the CPLR], the 1st and 2d Departments are much looser.  In general, a "reasonable time" period obtains.  There are some courts which will require that the expert be named 30 days or 15 days prior to trial,  there is no unanimity of what day that might be.  Is it the first day of jury selection?  is it the first day of testimony? 

On a finer level of analysis is the relationship of naming an expert pursuant to CPLR 3101 and motions for summary judgment.  In the 2d Department, especially Kings County, a body of law has arisen which holds that one must name an expert and serve a CPLR 3101 notice prior to the note of issue.  Here is an excerpt from Sierra v. D’Apuzzo, 6321/08;Decided: April 21, 2010;Judge Robert J. Miller;KINGS COUNTY;Supreme Court

"Before the Court considers whether the landlord caused or created the condition or had actual or constructive notice of the condition, the Court must first address the threshold issue of whether the plaintiff’s expert’s affidavit should be considered in opposition to the defendant’s motion. The defendant in reply to the plaintiff’s opposition asserts that the Court should reject the plaintiff’s expert’s report pursuant to Construction by Singletree, Inc. v. Lowe, 55 AD3d 861 [2d Dept 2008]. The Appellate Division, in Singletree rejected a plaintiff’s expert affidavit in opposition to the defendant’s motion for summary judgement because the plaintiff’s expert was not identified until after the note of issue and certificate of readiness were filed and the plaintiff offered no valid excuse for failure to give notice of the expert.

Here, plaintiff filed her note of issue and certificate of readiness attesting to the completion of discovery on July 29, 2009. The defendant moved for summary judgment on September 25, 2009. Plaintiff served her CPLR3101(d) response on October 12, 2009 and did not serve her expert affidavit until she served her opposition to the defendant’s summary judgment motion. Plaintiff offers no excuse for the delay.

However, at oral argument on the motion, the plaintiff raised the issue that the defendant did not serve his expert’s affidavit until the defendant submitted his summary judgment motion. The Court has not been provided with any discovery orders issued prior to the note of issue and certificate of readiness and therefore cannot opine on what demand or schedule of exchange may have been agreed upon by the parties. Any exchange of expert reports to be used in a summary judgement motion should have been exchanged prior to the note of issue and certificate of readiness following the ruling in Singletree.

The Court notes that the plaintiff’s expert Robert C. Schwartzberg’s report indicates he visited the scene of the accident on July 27, 2009 (two days prior to the note of issue and certificate of readiness were filed) and wrote a report dated August 20, 2009. The defendant’s expert, Mark I. Marpet, visited the scene on September 10, 2009 and wrote a report dated September 22, 2009.

Here, since both parties submit expert reports that are written after the note of issue and certificate of readiness were filed, the Court, in its discretion, declines the defendant’s request to reject the plaintiff’s expert report and considers both the defendant’s and the plaintiff’s expert reports. (Howard v. Kennedy, 60 AD3d 905 [2d Dept 2009].)"

 Here is a short decision with deep reaching consequences.  In Kurman v Schnapp ;2010 NY Slip Op 03786 ;Decided on May 4, 2010 ;Appellate Division, First Department we see the deceitful act of an attorney, and the Appellate Division substituting its finding for that of Supreme Court.  We have commented on the natural inclination of attorneys, applying rules of attorney behavior to other attorneys, to minimize and overlook.  How, one asks, could Supreme Court have come to such a different conclusion from the Appellate Division?
 

"Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendant deceived or attempted to deceive the court with a fictitious letter addressed to him from the former licensing director of the City’s Taxi and Limousine Commission (TLC) that stated, inter alia, that plaintiff was under a lifetime ban on owning any licenses with the TLC (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Plaintiff further sufficiently alleged specific damages that could not have occurred in the absence of defendant’s conduct (see id. at 15). The 2008 affidavit by the TLC’s former licensing director offered by defendant in support of his motion fails to demonstrate conclusively that plaintiff has no cause of action (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]).

Plaintiff’s breach of fiduciary duty cause of action is not duplicative of his legal malpractice cause of action, since it is premised on separate facts that support a different theory (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 58 AD3d 1, 9-10 [2008]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]. As alleged, plaintiff’s breach of fiduciary duty claim arose in December 2006, when defendant commenced his litigation activities against plaintiff in the Westchester County Supreme Court action, and continued through defendant’s 2007 disqualification from representing the Queens Medallion Leasing Inc. defendants, and thereafter. In contrast, plaintiff’s legal malpractice claim is based upon defendant’s alleged 2005 and 2006 "communications with the TLC that may have left the impression that [defendant] was still representing [plaintiff] at that time."

Lamont Dozier, author of "Baby I need your Loving" [the Four Tops], "Baby Love", "Back in my Arms Again", "Come See about Me" [The Supremes] and many many others, got snagged in the Pullman financing scheme. the Pullman Bonds.  Before him, David Bowie was the recipient of the financing arrangement.

In LAMONT DOZIER, Plaintiff, – against – WILLKIE FARR & GALLAGHER LLP, DEUTSCHE BANK TRUST COMPANY AMERICAS ;  09 Civ. 9865 (LMM); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 42321; April 26, 2010, Decided  we see a simple discussion of amendment of pleadings.

The motion for leave to amend is denied, first, because it contravenes the November 9, 2009 stipulation and, second, because amendment as to Willkie (against whom, alone, the new claim is asserted) would be futile as time-barred.

The proposed second amended complaint identifies and describes the transaction which is (as alleged in the new fourth claim against Willkie. (Proposed Second Am. Compl. P 37) "the subject matter of this litigation," as follows:
In or about June 2, 1998, Defendant Willkie represented Dozier in a securitized transaction (the "Transaction") entered into by Dozier with entities and individuals identified as David Pullman (hereinafter "Pullman") and Fahnestock & Company (hereinafter "Fahnestock") wherein the Transaction was to provide revenue to Dozier through the securitization of his future stream of music, entertainment and intellectual property royalties.
(Id. P 8.)

"An action to recover damages arising from an attorney’s malpractice must be commenced within three years from accrual." McCoy v. Feinman, 99 N.Y.2d 295, 301, 785 N.E.2d 714, 755 N.Y.S.2d 693 (2002) (citing N.Y.C.P.L.R. § 214(6) ) . "An action [*4] to recover damages for legal malpractice accrues when the malpractice is committed." Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 750 N.E.2d 67, 726 N.Y.S.2d 365 (2001) (citation omitted). More than three years has, plainly, passed since the 1998 malpractice alleged by plaintiff.