Infant Plaintiff is injured in a paper shredder, and goes to attorney 1.  Attorney 1, who wisely understands that he lacks the special expertise to handle the case correctly in US District Court hands case off to Attorney 2.  After a while attorney 2 speaks to a law firm even more experienced, and they together bring the case to an almost  $1 million settlement.  At the infant’s compromise, all the attorneys agree on a split between them.  Balance is to go to a structured settlement for the infant.  Done, ok?  Not so ok. 

The Magistrate decides that Attorney 1 is in violation of the then Dr-102 and has not done enough work to warrant a fee.  So, what does the Magistrate do?  The money which was to go to Attorney 1 is given to the plaintiffs, so that they get roughly 75% of the settlement. 

In   WAGNER & WAGNER, LLP, DANIEL J. BAURKOT, ESQ., Non-Party-Appellants, DAYANARA RODRIGUEZ, an infant by her , Plaintiffs, v. ATKINSON, HASKINS, NELLIS, BRITTINGHAM, GLADD & CARWILE, P.C., Non-Party-Appellee, INTERNATIONAL SALES, INC., INTERNATIONAL GROUP OF COMPANIES, Docket No. 08-4966-cv; UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2010 U.S. App. LEXIS 3170;August 25, 2009, Argued ; February 18, 2010, Decided  we see:

"After an infant compromise hearing, Judge Mann awarded $ 107,654.56 in attorneys’ fees and $ 49,866.84 in expenses to Atkinson, Haskins, Nellis, Brittingham, Gladd, & Carwile , P.C. (the "Atkinson firm" or "appellees"), and $ 133,286.60 in attorneys’ fees and $ 2,378.86 in expenses to Wagner & Wagner, LLP. She denied an award of fees to Baurkot because Wagner & Wagner’s sharing of the fees with Baurkot was not properly disclosed to plaintiffs and Baurkot had performed no services of value in the litigation. Therefore, she concluded, the fee sharing agreement was in violation of New York Disciplinary Rule 2-107 ("DR 2-107"). 1 The magistrate judge awarded Baurkot’s portion of the fee to the plaintiffs. Appellants then took this appeal. The Atkinson firm has filed a brief responding to Wagner & Wagner’s argument that if we affirm the award to the plaintiffs, the fee splitting agreement between Wagner & Wagner and the Atkinson firm requires a redistribution of fees between the two firms."
 

"The magistrate judge then denied any portion of the attorneys’ fees to Baurkot because DR 2-107 prohibited it. First, she found that DR 2-107 was violated because plaintiffs never received the required disclosure of the fee-sharing agreement. The judge rejected Wagner & Wagner’s and Baurkot’s contentions that they [*9] had orally sought and received the required consent. Instead, the magistrate judge relied on the plaintiffs’ testimony indicating they were unaware that Baurkot would be working on the case.

Second, the magistrate judge concluded that DR 2-107 was violated because the requirement that either the work done be in proportion to the fee received or that the attorneys agree in a writing to undertake joint responsibility was not met. In so finding, she relied on several pieces of evidence, including: (i) Wagner & Wagner’s initial failure to disclose Baurkot’s share of the fee to plaintiffs; (ii) Wagner & Wagner’s and Baurkot’s failure to show specific work he performed on the case; and (iii) the lack of any documents in Wagner & Wagner’s file to corroborate the claim that Baurkot performed services on the case.

The magistrate judge determined that the portion of the fee claimed by Baurkot should be awarded to the plaintiffs, rather than going to Wagner & Wagner. She expressed a concern that the fee would still find its way to Baurkot if Wagner & Wagner received it, and, moreover, noted that Wagner & Wagner had acknowledged that it considered $ 133,286.60 fair and adequate compensation for [*10] its efforts.

Wagner & Wagner and Baurkot filed timely objections to the Report and Recommendation. They objected to those parts of the order that determined that Baurkot’s portion of the fee should go to plaintiffs. These objections included an objection to the awarded fees because they resulted in a 55.3%/44.7% split between Wagner & Wagner and the Atkinson firm, rather than the agreed upon 65%/35% split. However, Wagner & Wagner and Baurkot specifically stated that "[t]he Wagner Firm, [sic] is not suggesting that the fee to the Atkinson Firm be reduced. . . . What we are stating is that since the fee to the Atkinson Firm is 35% of the full one-third contingency fee, the fee to the Wagner Firm should be 65% of the full one-third contingency fee." Judge Gleeson adopted the magistrate judge’s Report and Recommendation in full. This appeal followed."
 

Some states have mandatory legal malpractice insurance, but New York does not.  Result?  Plaintiffs who have suffered real damages at the hands of uninsured attorneys pursue them, and cannot collect their actual damages from the attorneys.  Here is one sad example. Matter of Jobi
2010 NY Slip Op 01704 ;Decided on March 2, 2010 ;Appellate Division, First Department .
 

Not only did this attorney convert monies, which the Clients’ Fund reimbursed, but the attorney avoided several legal malpractice judgments.  It is a violation of attorney ethics to avoid satisfying a judgment which arises from professional acts, but, in this case, the attorney could [apparently] care less.

"Respondent’s affidavit of resignation, sworn to on December 21, 2009, complies with 22 NYCRR 603.11[a][1-3] in that she states: (1) her resignation is rendered freely, voluntarily, without coercion or duress and that she is fully aware of the implications of submitting her resignation; (2) she is aware of a pending investigation based upon allegations of deceit involving the conversion of funds held in escrow, giving false testimony with respect thereto and the failure to satisfy judgments entered against her by two former clients and a third party; and (3) she acknowledges that if charges were predicated upon the misconduct under investigation by the Committee, she could not successfully defend herself.

With respect to one of the charges of conversion, it is alleged that respondent converted the sum of $21,250 which she deposited into her escrow account after she received the same from a real estate contract vendee named Jean John. A default judgment John subsequently obtained against respondent as a result of the conversion remains unsatisfied. Two other judgments entered against respondent in legal malpractice actions brought by former clients also remain unsatisfied. The Committee has reviewed respondent’s affidavit, found it in compliance with Rule 603.11 and recommends its acceptance by this Court.

Pursuant to Judiciary Law § 90(6-a)(a), restitution may be ordered in a disciplinary proceeding where that attorney has wilfully misappropriated or misapplied money or property in the practice of law. An order directing such restitution may be entered as a civil judgment (Judiciary Law § 90[6-a][d]). Here, an order directing restitution would be futile in light of the fact that John has entered judgment against respondent as set forth above. In any event, respondent should reimburse the Lawyers’ Fund for Client Protection of the State of New York as provided for by the statute.

Accordingly, the Committee’s motion should be granted to the extent that respondent’s resignation be accepted,
 

Legal malpractice seems to exist across the board everywhere an attorney interacts with a client.  Like the New Yorker cartoon showing a 5 year old who has dropped an ice cream cone, with an adult standing above and asking "Do you need an attorney?"  we see legal malpractice cases stitched in all settings.

Here in AMUSEMENT INDUSTRY, INC. dba WESTLAND INDUSTRIES; and PRACTICAL FINANCE CO., INC., Plaintiffs, -v.- MOSES STERN, aka MARK STERN; JOSHUA SAFRIN; FIRST REPUBLIC GROUP REALTY LLC; EPHRAIM FRENKEL; and LAND TITLE ASSOCIATES ESCROW, Defendants.;07 Civ. 11586 (LAK) (GWG);UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 11817 the attorney is Buchanan Ingersol.
This case is about a failed real estate partnership.  From the case: "On June 29, 2007, third-party defendants Steven Alevy and Friedman — who "was acting, at all times mentioned herein, in his capacity as an attorney and shareholder of [Buchanan]," 3d-Party Compl. P 5 — "presented an investment opportunity to Amusement, purportedly on behalf of Safrin and others," although Safrin had not authorized either party to do so, id. PP 26-27. Indeed, while Friedman held himself out as Safrin’s representative, "Safrin never retained or otherwise authorized Friedman to speak or act on his behalf in connection with the transactions described in the [underlying] Complaint." Id. P 29.

On that same date, Steven Alevy drafted [*10] a "letter of intent," which was "signed by [defendant Moses] Stern on behalf of First Republic Corp.," and which "identifies as its parties First Republic Corp. and Westland Industries, the name under which Amusement does business." Id. P 30. Safrin was not a party to the letter of intent. Id. P 31. That day, Amusement wired $ 13 million into an escrow account. Id. P 33.

Amusement and First Republic agreed to "work in good faith ‘to finalize [their agreements]’" during the seven-day period following June 29, 2007. Id. P 37. During this period, Amusement "drafted and forwarded three partnership agreements to Friedman for Safrin, among others, to sign in order ‘to complete a transaction.’" Id. (emphasis omitted). Nonetheless, "[n]one of these draft agreements called for Safrin’s signature." Id. P 38.
 

Buchanan argues that Safrin’s claim for implied indemnification against it must be dismissed because "Safrin’s denial of any contractual relationship between he [sic] and BIR makes it impossible for him to allege an implied contractual right to indemnification because there is nothing from which to create any implied obligation running from BIR to Safrin." Buchanan Mem. at 6 (citing 3d-Party Compl. PP 28, 63, 65, 66, 72, 73).

Buchanan’s argument must be rejected because Fed. R. Civ. P. 8(d) expressly permits "hypothetical" pleading and the assertion of "inconsistent claims or defenses." See Fed. R. Civ. P. 8(d)(2)-(3). Safrin’s assertion that there was no relationship between him and Buchanan, see, e.g., 3d-Party Compl. P 3, does not, therefore, bar him from asserting that, should such a relationship be found, Buchanan is obligated to indemnify him, id. PP 85-86. See, e.g., Henry v. Daytop Vill., Inc., 42 F.3d 89, 95 (2d Cir. 1994) ("Under [Rule 8(d)] of the Federal Rules of Civil Procedure, a plaintiff may plead two or more statements of a claim, even within the same count, regardless of consistency. [*17] . . . [T]herefore, we may not construe [the] first claim as an admission against another alternative or inconsistent claim.") (citations omitted); Padre Shipping, Inc. v. Yong He Shipping, 553 F. Supp. 2d 328, 333 (S.D.N.Y. 2008) ("plaintiffs are allowed to assert inconsistent facts in support of alternative claims, and courts may not construe allegations regarding one claim to be an admission against another") (citation omitted); Ascher v. Target Corp., 522 F. Supp. 2d 452, 458 (E.D.N.Y. 2007) ("the Court cannot construe one claim as an admission against another alternative or inconsistent claim") (citation omitted)."
 

We are reminded yet again that the statute of limitations starts to run in legal malpractice on the day that the mistake is made.  It’s not the day that you realize that a mistake was made.  This issue arises mostly in transactional representations, such as the lease in this case.  When there is litigation, then a continuous representation question comes into play, and plaintiffs usually know when the case ends.  Case endings, although not always a milestone, often provide a comfortable point of reference.

Here,  in Lincoln Place, LLC, Plaintiff, v. RVP Consulting, Inc., et al., Defendants. Robert Peters, et al., Third-Party Plaintiffs-Appellants, Michael E. Pekofsky, Esq., . 
plaintiff hired attorney to write up and administer a lease.  Things went wrong from the beginning, when there was an assignment rather than designating a lessee.  What is the difference?  In one, the plaintiff remained responsible for unpaid rents when the lessee stopped paying.  In the other, plaintiff would not have been responsible.

When and how was the mistake made?  When and how did plaintiff become aware?  When did the statute of limitations start to run?  To save the statue, plaintiff argues that a decision had to be made on the underlying case before he had the ability to sue.  This argument loses. Justice Kornreich of Supreme Court, New York County writes:

"The third-party complaint alleging legal malpractice is time-barred, the action having been commenced more than three years after the malpractice was committed (CPLR 214[6]; Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]). Third-party defendant Pekofsky negotiated a lease on behalf of third-party plaintiffs RVP Consulting and Robert Peters (collectively, Peters), as tenants, in 1997. He then assigned the lease, rather than designating a lessee, thereby causing Peters, pursuant to the terms of the lease, to remain liable for the full performance of all the tenant’s obligations thereunder. In 1998, the assignee defaulted in its rent obligations, triggering Peters’s liability for the outstanding rent. This action was not commenced until 2002.

Contrary to Peters’s contention, an adjudication of the meaning of Pekofsky’s 1997 letter was not a prerequisite to the existence of an actionable injury. Indeed, while Peters may not have been aware until 2001 or 2002 that Pekofsky’s actions could result in liability, it is not the date on which Peters learned that malpractice had occurred, but the date on which the malpractice was committed, that is relevant (West Vil. Assoc. Ltd. Partnership v Balber Pickard Battistoni [*2]Maldonado & Ver Dan Tuin, PC, 49 AD3d 270, 270 [2008]). Peters’s subjective belief that Pekofsky had designated a lessee rather than assigning the lease is of no consequence. "

In Seaview Mezzanine Fund, LP v. LoPresti, 2010 NY Slip Op 30350(U), decided by Justice York on February 18, 2010, in New York County, we see a well written explanation of several basic principals.  In this case a review of releases, of contract interpretation and the difference between a CPLR 3211(a)(7) and a CPLR 3211(a)(1) motion.

CPLR 3211(a)(7)  v.  CPLR 3211(a)(1) motion:   "When evaluating  a defendant’s motion to dismiss, pursuant to CPLR 3211(a) the test is `not whether the plaintiff has artfully drafted the complaint,  but whether, deeming the complaint to allege whatever can be reasonably implied from its statements, a cause of action can be sustained." That’s true for all CPLR 3211 motions except under (a)(1), where "A CPLR 3211(a)(1) motion to dismiss on the ground that the action is barred by documentary evidence…may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.’"

Contract interpretation:  "On a motion to dismiss, the interpretation of this contractual language is a question of law for the court to determine. `The fundamental rule of contract interpretation is that agreements are to be construed in accord with the parties intent…and the best evidence of what parties to a written agreement intend is what they say in their writing."

Releases:  Need there be actual consideration in a release?  No.  General Obligations Law 15-303 states:  A written instrument which purports to be a total or partial release of all claims, debts, demands or obligations, or a total or partial release of any particular claim…shall not be invalid because of the absence of consideration or of a seal.

This week brings a decision in SHEEHY,v. NEW CENTURY MORTGAGE CORP., ET AL., No. 08-CV-377 (JFB) (MLO);UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 15201,  We have noted a trend in legal malpractice cases involving allegaions of breach of fiduciary duty.  Here is another one.
 From the decision:

"Breach of Fiduciary Duty

Under New York law, the elements of a breach of fiduciary duty claim are (1) that a fiduciary duty existed between plaintiff and defendant, (2) that defendant breached that duty, and (3) damages as a result of the breach. Meisel v. Grunberg, 651 F. Supp. 2d 98, 114 (S.D.N.Y. 2009) (citing Whitney v. Citibank, N.A., 782 F.2d 1106, 1115 (2d Cir. 1986) and Regions Bank v. Wieder & Mastroianni, P.C., 423 F. Supp. 2d 265, 270 (S.D.N.Y. 2006), remanded on other grounds by 253 Fed. Appx. 52 (2d Cir. 2007)).

Halpern does not–and cannot–dispute that, by serving as plaintiff’s attorney, she had a fiduciary relationship with plaintiff. (See Halpern Mem. of Law at 17); see also Graubard Mollen Dannett & Horowitz v. Moskovitz, 86 N.Y.2d 112, 653 N.E.2d 1179, 1182, 629 N.Y.S.2d 1009 (N.Y. 1995) ("[A]n attorney stands in a fiduciary relation to the client.").

Instead, Halpern argues that plaintiff cannot establish a breach of fiduciary duty occurred because plaintiff has not submitted any expert testimony. (See id. at 17-18.) In support of this argument, Halpern cites the fact that New York courts generally require expert testimony to establish the standard of care in legal malpractice [*24] cases. See, e.g., D’Jamoos v. Griffith, No. 00 CV 1361, 2001 U.S. Dist. LEXIS 17595, 2001 WL 1328592, at *6 (E.D.N.Y. Aug. 1, 2001). Typically, in these cases, expert testimony is used to establish the reasonableness of discretionary decisions made by an attorney, such as a decision to question a witness, raise a particular argument, or make a particular motion. See, e.g., Kranis v. Scott, 178 F. Supp. 2d 330, 335 (E.D.N.Y. 2002) (requiring expert testimony where malpractice claim involved, inter alia, questions of the reasonableness of failure to raise a particular defense); Hatfield v. Herz, 109 F. Supp. 2d 174, 179-80 (S.D.N.Y. 2000) (granting summary judgment to defendant where plaintiff failed to provided expert testimony on malpractice claim that concerned, inter alia, defendant’s failure to request a jury trial, failure to prepare adequately for trial, failure to call certain witnesses, and failure to file and litigate certain pre-trial motions); Greene v. Payne, Wood and Littlejohn, 197 A.D.2d 664, 602 N.Y.S.2d 883, 885 (App. Div. 1993) (requiring expert testimony to address "the question of whether the defendants were negligent in failing to separately plead the pendent State claim at the time they instituted the Federal [*25] suit"). However, there are exceptions to the rule requiring expert testimony. Expert testimony is not required in legal malpractice cases if "’the ordinary experience of the fact-finder provides sufficient basis for judging the adequacy of the professional service . . . , or the attorney’s conduct falls below any standard of due care . . . ." Greene, 602 N.Y.S.2d at 885; see also Stonewell Corp. v. Conestoga Title Ins. Co., No. 04 CV 9867 (KMW) (GWG), F. Supp. 2d , 2010 U.S. Dist. LEXIS 1107, 2010 WL 46015, at *5 (S.D.N.Y. Jan. 7, 2010) ("[E]xpert testimony may be deemed unnecessary [in legal malpractice cases] where the ordinary experience of the fact finder provides sufficient basis for judging the adequacy of the professional service." (internal quotations and citations omitted)).

Here, plaintiff asserts a breach of fiduciary duty claim against Halpern, not a legal malpractice claim. However, the Court will assume, arguendo, that the rule regarding expert testimony applies to breach of fiduciary duty claims against an attorney as well as legal malpractice claims because these causes of action are closely related under New York law. For example, the Appellate Division, First Department, has described breach [*26] of fiduciary duty and legal malpractice claims as "co-extensive," 11 and, when a plaintiff asserts both a legal malpractice claim and a breach of fiduciary duty claim against an attorney, New York courts typically dismiss the breach of fiduciary duty claim as duplicative of the malpractice claim. See, e.g., Joyce v. Thompson Wigdor & Gilly, LLP, No. 06 Civ. 15315 (RLC) (GWG), 2008 U.S. Dist. LEXIS 43210, 2008 WL 2329227 (S.D.N.Y. June 3, 2008) ("Under New York law, where claims of negligence, breach of contract, breach of fiduciary duty, negligent misrepresentation, or fraudulent misrepresentation are premised on the same facts and seek identical relief as a claim for legal malpractice, those claims are duplicative and must be dismissed."); Amadasu v. Ngati, No. 05 CV 2585 (JFB) (LB), 2006 U.S. Dist. LEXIS 19654, 2006 WL 842456, at *9 (E.D.N.Y. Mar. 27, 2006) (collecting cases); Fashion Boutique of Short Hills, 780 N.Y.S.2d at 596; Schweizer v. Mulvehill, 93 F. Supp. 2d 376, 400 & n.29 (S.D.N.Y. 2000) ("New York law clearly provides . . . that where breach-of-fiduciary duty claims mirror allegations of malpractice, they must be dismissed.").

FOOTNOTES

11 Weil, Gotshal, & Manges v. Fashion Boutique of Short Hills, 10 A.D.3d 267, 780 N.Y.S.2d 593, 596 (App. Div. 2004); [*27] see also Kirk v. Heppt, 532 F. Supp. 2d 586, 591 (S.D.N.Y. 2008) (construing pro se plaintiff’s claim for breach of fiduciary duty as a claim for legal malpractice).

In any event, plaintiff need not provide expert testimony to survive summary judgment because both above-referenced exceptions to the rule apply here. Typically, the exceptions apply in cases where the attorney’s alleged conduct is so egregious that the reasonableness of the conduct is not at issue. See, e.g., Northrop v. Thorsen, 46 A.D.3d 780, 848 N.Y.S.2d 304, 308 (App. Div. 2007) (stating that expert testimony not required because attorney’s disregard of "clearly defined and firmly established" rule set forth in New York Worker’s Compensation law "fell below any permissible standard of due care"); Shapiro v. Butler, 273 A.D.2d 657, 709 N.Y.S.2d 687, 689 (App. Div. 2000) (expert testimony not required to establish that lawyer who failed to file an answer, which led to a default judgment against client, acted negligently); S & D Petroleum Co. v. Tamsett, 144 A.D.2d 849, 534 N.Y.S.2d 800, 802 (App. Div. 1988) (expert testimony not required to establish that lawyer retained to secure a debt rendered inadequate professional service by failing to file a security agreement [*28] necessary to secure the debt). The allegations in this case clearly fall within the exceptions to the requirement of expert testimony. The gravamen of plaintiff’s breach of fiduciary duty claim is that Halpern lied to her and had conflicting loyalties. Specifically, plaintiff claims that Halpern provided false assurances and made material omissions during the October 10, 2006 meeting–which included, among other things, allegedly lying to plaintiff by telling her that Adlerstein was also going to be on the mortgage–and thereby convinced plaintiff to close on 111 Berkley Street and that, by doing so, Halpern furthered Adlerstein’s interests at plaintiff’s expense. (See Pl. Mem. of Law (Halpern) at 10; see also, e.g., Pl. Dep. 112:6-22; 114:10-115:20.) Additionally, plaintiff has submitted evidence that Halpern knew about the $ 21,567.52 payment to Adlerstein (see DeRossi Dec. Ex. N) and that she failed to disclose this payment to plaintiff.

False statements or material omissions by an attorney to a client clearly breach the attorney’s fiduciary duties, particularly where those false statements and omissions further conflicting interests. See, e.g., Summit Rovins & Feldesman v. Fonar Corp., 213 A.D.2d 201, 623 N.Y.S.2d 245, 246 (App. Div. 1995) [*29] (noting that attorney has fiduciary duty "to bring to the client’s attention all relevant considerations" and denying defendant-attorney summary judgment because triable issues of fact existed regarding adequacy of attorney’s disclosures about conflicts of interest). See generally Mermelstein v. Spector, 485 F.2d 474, 479 (2d Cir. 1973) (classifying, as a "recognized basic principle," the rule than an attorney who "negligently or willfully withholds from his client information material to the client’s decision to pursue a given course of action, or to abstain therefrom, . . . is liable for the client’s losses suffered as a result of action taken without benefit of the undisclosed material facts"); Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 865 N.Y.S.2d 14, 21 (App. Div. 2008) ("[A]ny act of disloyalty by counsel will also comprise a breach of the fiduciary duty owed to the client.") Assuming the jury credited plaintiff’s version of events, it would not need expert testimony to find that a lawyer who allegedly violated basic requirements of the attorney-client relationship–candor and loyalty — by engaging in, among other things, outright fraud (as is alleged here) [*30] failed to provide "adequa[te] professional service" and "fell [] below any standard of due care." Therefore, where, as here, the issue is whether an attorney breached her fiduciary duty by engaging in outright fraud in connection with a real estate transaction, plaintiff need not provide expert testimony to survive summary judgment on this claim."

It’s a rare phenominom, but in this case the Second Department took another look at a case, and significantly changed its decision regarding legal malpractice.  in Uzzle v Nunzie Ct. Homeowners Assn., Inc. ;2010 NY Slip Op 01476 ;Decided on February 16, 2010 ;Appellate Division, Second Department   under 2008 NY Slip Op 7905, the AD wrote:"Given the limited scope of the plaintiff’s notice of appeal, the issue of whether the Supreme Court erred in dismissing the causes of action aserted against the defendant John C. DiGiovanna is not peroperly before this Court."
 

Today, that decision was recalled and this is the final outcome: "The Supreme Court properly granted that branch of DiGiovanna’s motion which was to dismiss the cause of action to recover damages for breach of contract insofar as asserted against him, as that cause of action was duplicative of the legal malpractice cause of action (see Maiolini v McAdams & Fallon, P.C., 61 AD3d 644, 645; Gelfand v Oliver, 29 AD3d 736; Shivers v Siegel, 11 AD3d 447). However, affording the legal malpractice cause of action a liberal construction and according the plaintiff every favorable inference, the complaint does state a cause of action to recover damages for legal malpractice (see generally Hamoudeh v Mandel, 62 AD3d 948, 949; Maiolini v McAdams & Fallon, P.C., 61 AD3d 644, 645; Malik v Beal, 54 AD3d 910, 911). "
 

What was it that turned the case around?

In Yakubov v Borukhov we see a common fact pattern.  It consists of an early event followed by litigation, bad outcome, and a look back, in legal malpractice, at the original attorney from years before.

Here the sequence is:  Real estate contract which was to allow plaintiff to subdivide property.  Seller balks, and Plaintiff-buyer litigates, eventually winning what turns out to be a damaged property.  Presumably, no subdivision is permitted.  Client, now years later, looks back at contract attorney seeking legal malpractice damages, some 5 years later.  How does this come out?

Attorney wins dismissal.  Plaintiff offers the following arguments:  I thought he was still my attorney.  This is patently insufficient, and the court so finds, in rather summary fashion.  Well then, says plaintiff, how about continuous representation ?  That’s no good either, says the Court.  There is no indication, either in affidavit form or in evidence that there was a continuing, ongoing relationship.

Case dismissed.