Is legal malpractice litigation held to a higher standard? Are there more motions to dismiss the complaint granted against legal malpractice complaints than against the rest of the law-o-sphere? We have no hard figures, but anecdotal evidence suggests that legal malpractice is held to a higher standard. As an example, how could Supreme Court and the Appellate Division see things so differently?

In Minsky v Haber ;2010 NY Slip Op 04754 ;Decided on June 1, 2010 ;Appellate Division, Second Department Supreme Court dismissed the action across the board. The Appellate Division held:

"Contrary to the determination of the Supreme Court, the motion of the defendants Eugene Haber, Edward Cobert, and Amy Cobert, individually and doing business as Cobert, Haber & Haber (hereinafter collectively the Haber defendants), to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 should have been denied. Affording the complaint a liberal construction, and according its factual allegations every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38), we find that the complaint sufficiently stated distinct causes of action to recover damages for legal malpractice, breach of contract, breach of fiduciary duty, and fraud. With regard to the privity requirement of the legal malpractice cause of action, the plaintiff satisfactorily alleged that she was assigned a claim of right by her father sounding in legal malpractice against the Haber defendants, that the Haber defendants also were retained to represent her personal interests in addition to her father’s interests, that she was also a third-party beneficiary of the representation of her father by the Haber defendants, and was injured by their alleged misconduct (see generally Nelson v Kalathara, 48 AD3d 528; Fredriksen v Fredriksen, 30 AD3d 370). The other causes of action are sufficiently different from the legal malpractice claim to survive that branch of the Haber defendants’ motion which was pursuant to CPLR 3211(a)(7). [*2]

Furthermore, dismissal of the complaint as time-barred pursuant to CPLR 3211(a)(5) was error, since the plaintiff alleged facts supporting the application of the continuous representation doctrine to toll the statute of limitations for legal malpractice (see CPLR 214[6]; Griffin v Brewington, 300 AD2d 283; Mancino v Levin, 268 AD2d 507; Kuritsky v Sirlin & Sirlin, 231 AD2d 607), and the remaining causes of action also were timely interposed under the circumstances.

The Haber defendants’ submission of documentary evidence did not conclusively establish a defense to the claims asserted by the plaintiff (see CPLR 3211[a][1]; see generally Held v Kaufman, 91 NY2d 425, 430-431; Leon v Martinez, 84 NY2d 83, 88; Peter F. Gaito Architecture, LLC v Simone Dev. Corp., 46 AD3d 530), but merely revealed the existence of factual questions with regard to the propriety of the Haber defendants’ conduct. "

"

Its a most unusual case, and one rarely sees a law firm in Bankruptcy.   IN RE: THE LAW FIRM OF FRANK R. BAYGER, P.C., Debtor.09-CV-735A;UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 51537;May 24, 2010, illustrates how tenacious a legal malpractice plaintiff may be.

"The events underlying the Bankruptcy Order trace back to a personal injury lawsuit that the debtor prosecuted in the late 1990s. In 1996, the debtor commenced a personal injury lawsuit in state court on behalf of Donald L. Dolson ("Dolson"). In the lawsuit, Dolson alleged that he suffered injuries when his head struck a screw sticking out of the side of a water slide at a local theme park. In August 2001, a jury awarded Dolson $ 15,000. The debtor timely took an appeal with the New York State Supreme Court, Appellate Division. That appeal never was perfected.

Bankruptcy proceedings against the law firm proceeded.  It would appear that there was no insurance for the legal malpractice case, which is now a claim.  As for now, plaintiff’s claim in bankruptcy remains alive.  To what end, or how this will turn out, keep tuned.

Reading the decision in a case like this requires both a score card and a play diagram.  In LZG Realty LLC v H.D.W. 2005 Forest LLC  ;2010 NY Slip Op 50958(U) ; Decided on May 28, 2010
Supreme Court, Richmond County ; McMahon, J.  a series of real estate transactions led to mortgages, foreclosure and charges of professional negligence and fraud.
 

"These actions have been joined for trial and are brought by the first and second mortgagees to foreclose mortgages held against real property owned by defendant H.D.W. 2005 Forest LLC, ("H.D.W.") and guaranteed by defendant Eli Weinstein ("Weinstein"). Defendants Benjamin Hager, Esq. and Mallow Konstam & Hager, P.C. (collectively, the "Hager defendants") allegedly represented the mortgagor and Weinstein at the title closing and at both mortgage closings. "

"In its first claim against the Hager defendants, H.D.W. alleges that "[as] a result of Hager’s negligence . . . H.D.W. is now defending itself in the foreclosure action brought by LZG and Tissa, and the premises has two invalid mortgages placed against them (sic)."

In seeking summary judgment dismissing this claim, the Hager defendants allege that Benjamin Hager never purported to represent either H.D.W. or Wolinetz, and argue that the claim sounds in legal malpractice and therefore must be dismissed as there is no privity between Hager and either H.D.W. or its alleged principal, Wolinetz.[FN6] "

"However denominated, it cannot be gainsaid that the pleadings herein give the Hager defendants notice of the transaction out of which H.D.W.’s claim purports to arise. CPLR 3017 allows the Court to grant "any type of relief… appropriate to the proof whether or not demanded." Here, the third-party complaint sets forth sufficient facts to state a claim upon which relief can be granted, and so long as that pleading can be read to embrace the elements of a provable claim, the fact that the pleading theorizes it as something else is immaterial (see e.g. McGinnis v. Bankers Life Co., 39 AD2d 393 [2nd Dept 1972]).

To that extent, so much of the Hager defendants’ motion for summary judgment addressed [*8]to the third-party claim of professional negligence and grounded on the argument that "H.D.W. cannot establish privity, a necessary element in order to prove legal malpractice" is denied. "

In Reiver v Burkhart Wexler & Hirschberg, LLP ; 2010 NY Slip Op 04565 ; Decided on May 25, 2010 ; Appellate Division, Second Department we see the Appellate Division reversing  dismissal of a legal malpractice action under CPLR 3211.
 

The rules of CPLR 3211 motions are as well known to the parties and the Court.   Nevertheless, cases [especially in legal malpractice, we think] are routinely dismissed under CPLR 3211 after the rules are simply scrapped.

"In lieu of answering, the defendants moved to dismiss the complaint pursuant to CPLR 3211(a). In support of their motion, the defendants submitted the complaint, the affidavit of an attorney from another firm who was alleged by the plaintiffs to have been engaged by the defendants as a legal consultant, and copies of the invoices the defendants had sent to the plaintiffs. The Supreme Court granted the motion, concluding that the plaintiffs’ allegations in support of the cause of action sounding in breach of fiduciary duty "are unsupported by any documentation, and without any affidavits from the plaintiffs that remed[y] such defect, the plaintiffs do not establish such a cause of action."

In considering a motion to dismiss pursuant to CPLR 3211, the court must afford the complaint a liberal construction and "determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19). Contrary to the defendants’ contentions on appeal, the allegations of the complaint are sufficient to state a viable cause of action sounding in breach of fiduciary duty. Furthermore, "CPLR 3211 allows plaintiff to submit affidavits, but it does not oblige him to do so on penalty of dismissal . . . [U]nless the motion to dismiss is converted by the court to a motion for summary judgment, he will not be penalized because he has not made an evidentiary showing in support of his complaint" (Rovello v Orofino Realty Co., 40 NY2d 633, [*2]635). Since the Supreme Court did not convert the defendants’ motion into one for summary judgment, "the plaintiff[s] [were] not put on notice of any obligation to come forward with evidentiary support for [their] claims" (Russo v Macchia-Schiavo, 72 AD3d 786; see Nonnan v City of New York, 9 NY3d 825, 827). Thus dismissal pursuant to CPLR 3211(a)(7) was not warranted.

Moreover, the materials submitted by the defendants in support of their motion did not constitute "documentary evidence" within the meaning of CPLR 3211(a)(1) (see Fontanetta v John Doe 1,AD3d, 2010 NY Slip Op 02743 [2d Dept 2010]) and, in any event, did not "utterly refute[] plaintiff[s’] factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d at 88; Russo v Macchia-Schiavo, 72 AD3d 786; Martin v New York Hosp. Med. Ctr. of Queens, 34 AD3d 650). Thus, dismissal pursuant to CPLR 3211(a)(1) was not warranted. "

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.