Here is how a borrowing statute affects litigation and why a Pennsylvania statute of limitations applies to New York litigation.  CPLR 202 requires that when a nonresident sues on a cause of action accruing outside New York, CPLR 202 requires the cause of action to be timely under the limitations periods of both New York and the jurisdiction where the cause of action accrued.   "This prevents nonresidents from shopping in New York for a favorable Statute of Limitations." Global Financial Corp v. Triarc, 93 NY2d 525 (1999).

In Merritt v. Blumenthal, Supreme Court, New York County, Fried, J. we find:

" New York’s borrowing statute, CPLR §202, applies to determine the statute of limitations that governs the malpractice and Judiciary Code claims at issue here. The parties’ dispute regards the outcome of the application of CPLR §202. Specifically, Defendants contend that proper application CPLR §202 requires that the claims in this case be subject to the Pennsylvania statute of limitations, whereas Plaintiff argues that analysis under CPLR §202 leads to the conclusion that either the Delaware of New York statute of limitations applies. Under the shorter Pennsylvania statute of limitations, Plaintiff’s claims would be time-barred. They would still be viable under the New York or Delaware statutes.
 

"This action arises out of Plaintiff’s failed business relationship with a former client of Defendant Michael V. Blumenthal, Esq., involving investments in real estate and race horses. Plaintiffs’ allegations can be characterized as (1) claiming that Mr. Blumenthal committed malpractice against Plaintiff in the course of his involvement in the business transactions and subsequent litigation between Plaintiff and Mr. Blumenthal’s then-client, Ira Russack, and (2) claiming that Defendant violated New York Judiciary Code §487 by offering false testimony when called as a fact witness in the litigation between Plaintiff and Mr. Russack. Defendants Mr. Blumenthal and his former law firms, Brown Raysman Millstein Felder & Steiner LLP and Thelen LLP (collectively, Defendants) move to dismiss on the grounds that Plaintiff’s claims are time-barred and, additionally, that the Complaint does not state a cause of action under New York Judiciary Code §487. For the reasons stated below, Defendants’ motion is granted."
 

Landlord hires big-time Landlord-Tenant attorneys in New York City, and expect that the attorneys are in fact bringing a series of eviction proceedings.  This case alleges that they did not, yet charged fees, and misled the client.  What is a client to do?  In this instance they sued for legal malpractice, breach of fiduciary duty, fraud, breach of contract, etc.  Justice Joan Madden of Supreme Court, New York County decided a CPLR 3211 motion to dismiss in Cayuga Capital Mgt. LLC v, Borah Goldstein.

The fraudulent inducement, fraudulent misrepresentation and negligence claims were all trimmed as duplicitive of a potential legal malpractice case. Justice Madden reasoned that they were based upon the same facts, and sought the same damages, and thus were duplicates of the potential legal malpractice.

More interesting was plaintiff’s invocation of Ulico v. Wilson Elser, 56 AD1 (1st Dept, 2008),  That case has been the center of a growing number of "breach of fiduciary duty" cases, and supports a claim for such a breach.  Here, in a footnote, Justice Madden disposes of reliance upon Ulico.

The legal malpractice action was dismissed without prejudice, allowing plaintiff to amend and demonstrate the "but for" aspects of the eviction cases.  Presumably, if the evictions are now in process, claims for damage will be limited to the delays, and not for a permanent loss of the ability to evict.

Were one to read each of the 150+ legal malpractice cases decisions filed each year, one would see a wide range of attorney-client problems.  Some are frivolous and some very serious.  This case, DAVID GOLDSTEIN, Plaintiffs, – against – ALLEN S. GOLD and LAW OFFICES OF ALLEN S. GOLD, Defendants;No. 06 CV 6707 (ERK)(VVP); UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK;2009 U.S. Dist. LEXIS 78822; September 1, 2009 is remarkable for the "brazen" behavior by the attorney.  Judge Korman disposes of a motion for summary judgment in this decision.

"Plaintiff further alleges that, in early 2001, defendant informed him that he filed a complaint against Mass Mutual ("2001 action"), "seeking the relief [plaintiff] had requested." (Id. P 8). This was not true – defendant never filed the 2001 action. (Id. P 9.) Nevertheless, from 2001 to 2005, in response to plaintiff’s repeated inquires as to the status of the 2001 action (id. PP 10-12), defendant led plaintiff to believe that he was vigorously litigating the 2001 action against Mass Mutual (id. PP 8, 13-22).

Although defendant denies telling plaintiff that he filed a lawsuit in 2001 (Niehaus Aff., Ex. B, Answer P 22), the record does not support this assertion. Indeed, between November 2, 2001, and August 6, 2006, plaintiff sent defendant at least twenty-three emails and letters that referenced the 2001 action. (See Pl.’s Aff. Exs. B-U, W, Z, AA.) It is clear from this correspondence that plaintiff believed defendant had not simply filed the 2001 action but was aggressively litigating it on his behalf. (See, e.g., id., Ex. E, letter, dated February 24, 2002 ("What is [*5] your legal opinion on how [Mass Mutual’s] response to your serving them with the order to show cause will impact my ‘3 part lawsuit’ commenced against them?"); id., Ex. F, letter, dated March 27, 2002 ("is there any additional information on the status (date) for the ‘Preliminary Conference’ for the 3-part lawsuit that you commenced on my behalf?"); id., Ex. N, letter, dated December 27, 2003 ("thank god the court has ordered a January 20, 2004 status conference; with the intent being; as I understand it; to get this case on a tight schedule in order to bring it to completion.").) Plaintiff alleges that "at no point did Mr. Gold ever state that no lawsuit had been filed" (Pl.’s Aff. P 26), nor did he "ever question what lawsuit [plaintiff] was referring to in any of the above correspondence" (Pl.’s Aff. P 27). On the contrary, plaintiff "specifically recall[s defendant] informing [him] that he had engaged in extensive discovery with MassMutual" (id. P 16), "that MassMutual was engaged in delaying tactics to slow the case down" (id. P 17), "that he had responded to numerous sets of interrogatories propounded by MassMutual" (id. P 18), "that a ‘Preliminary Conference’ had been scheduled [*6] . . . for July 23, 2002" (id. P 20), and "that a ‘Status Conference’ had been scheduled . . . for January 20, 2004" (id. P 21).
 

The dismissal of the 2005 action "shocked" plaintiff, particularly the Supreme Court’s findings "regarding my not ‘interposing’ claims three through six b[y] the end of 2001", because he believed that defendant had "interposed" these claims in the 2001 action. (Id., Ex. T.) Indeed, plaintiff was so convinced that the Supreme [*11] Court had erred in finding his tort claims time-barred that he decided to appeal the decision. (See id., Ex. HH.) In an email to defendant on December 7, 2005, shortly before defendant filed the appeal, plaintiff wrote: "I am sure the appellate guy you met with on Monday had the opportunity to realize that [the Supreme Court Justice’]s finding that I had not "’interpos[ed]’ claims three through six b[y] the end of 2001 w[as] outright [i]ncorrect." (Id., Ex. T (emphasis in original).) Plaintiff believed that all the documents defendant told him he had filed in the 2001 action were "sit[ting] within the ‘sealed 100545/01’ part" of the file for the 2005 action. (Id.)

Defendant never disabused plaintiff of these views. On the contrary, in response to plaintiff’s numerous requests for a "copy of the originally filed, ‘interposed’ . . . claims that [the Supreme Court Justice] has apparently not had an opportunity to read" (id., Ex. T; see also id., Exs. U, W, X, Z), defendant fabricated documents and provided them to plaintiff as evidence that he had filed the 2001 action. (Pl.’s Aff. PP 28a-d.) Indeed, defendant produced a summons and verified complaint, dated February 12, 2001, which bore [*12] no index number (id., Ex. CC); a check, dated February 1, 2001, made out to the Queens County Clerk (id., Ex. DD); and an unsigned Notice of Deposition and Verified Answer, both dated April 27, 2001 and bearing the Index No. 10054/01, which defendant represented had been filed and served by Mass Mutual’s counsel, Michael Yoeli of the law firm Assail & Yoeli, LLP (id., Ex. EE)."
 

"Each of plaintiff’s claims — for fraud, attorney malpractice, breach of contract, attorney misconduct under New York Judiciary Law § 487 and intentional infliction of emotional distress — is based on defendant’s alleged failure to file the 2001 action and his continued misrepresentation that he had not only filed the action but was vigorously litigating it. Moreover, defendant concedes that "[t]here is no doubt that the counterclaim [for attorney’s fees] arises under the same circumstances and facts that form the basis for the Plaintiff’s claims." (Niehaus Aff., Ex. F, at 5.) Defendant does not contest plaintiff’s allegations that he failed to file the 2001 action or that he "deceived [plaintiff] about commencing an action in 2001. . . ." (Def.’s Reply Mem. at 5.) Instead, he argues that plaintiff’s claims fail, because "plaintiff simply cannot establish damages" (Def. Mem. 2), and that he entitled to summary [*15] judgment on his counterclaim, because "plaintiff’s account was in arrears at the time of his termination" (Def.’s Reply Mem. at 2).

As to the fraud, breach of contract, attorney misconduct and intentional infliction of emotional distress claims, defendant argues merely that it is "indisputable" that plaintiff cannot establish damages. (Def.’s Mem. at 2.) Defendant, however, does not offer any evidence nor point to a single material fact that supports this "indisputable" conclusion. The facts material to plaintiff’s alleged damages are (1) whether he "paid [defendant] tens of thousands of dollars based on [defendant]’s false representation that the money was paying for an ongoing litigation [the 2001 action]" (Pl.’s Opp’n Mem. 8); (2) whether the 2005 action was dismissed as untimely due to defendant’s failure to interpose the tort claims by the end of 2001 (Pl.’s Aff., Ex. GG); and (3) whether plaintiff "suffer[ed] severe-mental trauma as a result of [defendant]’s deliberate and knowing actions in . . . fraudulently leading [him] to believe that the MassMutual situation was being addressed" (Pl.’s Opp’n Mem. at 9)."
 

When one files a petition in bankruptcy, ownership of assets is upended.  Some if not all assets of the debtor become part of the estate, and will be used to pay creditors.  A current cause of action in legal malpractice, even if not reduced to a law suit is one such asset.  What happens if the negligence is unearthed in the bankruptcy proceedings?  Is it the property of the estate or that of the debtors; is is pre-petition or post-petition.

in IN RE: ANNE DE HERTOGH and PETER DE HERTOGH, DEBTOR;  CASE NO. 04-22006 (ASD), CHAPTER 7; UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF CONNECTICUT;2009 Bankr. LEXIS 2466;August 28, 2009 we see the following:

"The major point of contention in the present proceeding concerns whether the Malpractice Action is property of the estate or of the Debtors. Courts have taken several approaches to this question. Some, relying on Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 L. Ed. 2d 136 (1979), and the language of Section 541, have looked to whether, as of the petition date, a cause of action had accrued under applicable state law. See, e.g. Swift v. Seidler (In re Swift), 198 B.R. 927 (Bankr. W.D.Tex. 1996) (under Texas law, cause of action for legal malpractice causing loss of an exemption could only accrue post-petition and was therefore not property of the estate); Holstein v. Knopfler (In re Holstein), 321 B.R. 229 (Bankr. N.D. III. 2005) (cause of action for legal malpractice allegedly causing denial of discharge accrued post-petition; was property of debtor, not property of estate); But see Helbling v. Josselson (In re Almasri), 378 B.R. 550 (Bankr. N.D. Ohio 2007) (concluding that, under Ohio law, a malpractice claim that accrued at the time petition was filed rather than post-petition when discharge was revoked; held property of estate). Other courts, relying on Segal v. Rochelle, 382 U.S. 375, 380, 86 S.Ct. 511, 515, 15 L. Ed. 2d 428 (1966) [*8] considered whether a cause of action that accrued post-petition was nevertheless "sufficiently rooted in the pre-bankruptcy past and so little entangled with the bankrupt’s ability to make an unencumbered fresh start that it should be regarded as ‘property’ under § 70(a)(5) [of the former Bankruptcy Act]." See, e.g. Casey v. Grasso (In re Riccitelli), 320 B.R. 483, 491-92 (Bankr. D.Mass. 2005) (malpractice claim alleging loss of homestead exemption that accrued post-petition was not "sufficiently rooted in the pre-bankruptcy past" to become property of the estate); But see Wheeler v. Magdovitz (In re Wheeler), 137 F.3d 299 (5th Cir. 1998) (malpractice claim for allegedly causing debtor’s conviction for bankruptcy fraud held property of estate even though cause of action did not accrue under Mississippi law until post-petition); Rich v. Strada Design Associates, Inc. (In re Strada Design Associates, Inc.), 326 B.R. 229, 236 (Bankr. S.D.N.Y. 2005) (concluding that claim that attorney filed petition under wrong chapter was property of estate; held that "a cause of action will be ‘property of the estate’ if it has sufficient roots in the debtor’s pre-bankruptcy activities and is not entangled [*9] with the debtor’s ‘fresh start,’ regardless of when the claim accrues under state law.").

The Court finds the matter best resolved by direct reference to Bankruptcy Code Sections 541(a)(1) and § 541(a)(7), and the property interests created by state law. Such an approach, the same as is used to determine whether any other interest in property becomes property of the estate, is most consistent with the language, precedents and policy of the Bankruptcy Code. See, e.g. Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1093 (2d Cir. 1995) ("Whether the rights belong to the debtor . . . is a question of state law. Thus, the trustee stands in the shoes of the debtors, and can only maintain those actions that the debtors could have brought prior to the bankruptcy proceedings.") (citations and internal quotation marks omitted). Accordingly, the Court’s analysis focuses on when (pre- or post-petition) and to whom (the estate or the post-petition debtor) a legally cognizable interest in the cause of action arose under the applicable state law.

HN2The filing of a Chapter 7 petition creates a bankruptcy estate encompassing "all legal or equitable interests of the debtor in property as of the commencement [*10] of the case," 11 U.S.C. § 541(a)(1), including any causes of action possessed by the debtor. Seward v. Devine, 888 F.2d 957, 963 (2d Cir. 1989). "Property interests are created and defined by state law. Unless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding." Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 918, 59 L. Ed. 2d 136 (1979).
HN3The federal bankruptcy code broadly defines property of a debtor’s estate as including "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § 541(a)(1) (1988). Within this definition of a debtor’s property fall the debtor’s rights of action. . . .

HN4Although federal bankruptcy law determines the outer boundary of what may constitute property of the estate, state law determines the "nature of a debtor’s interest" in a given item. Therefore, whereas federal law instructs us that [an action] may constitute property of [the Debtors’] estate, state law determines whether [the Debtors’] interest in the cause of action is sufficient to confer on the estate a property right in [*11] the action."
 

Since the Court of Appeals decided Amalfitano v. Rosenberg  we have seen an upswing in reported successful Judiciary Law 487 cases.  Here in Moormann v Hoerger ;2009 NY Slip Op 06518 ;Decided on September 15, 2009 ;Appellate Division, Second Department plaintiff loses legal malpractice, but avoids summary judgment on the Judiciary Law cause of action. 

Plaintiff was convicted of DWI (he blew a .30) and the DA moved to forfeit his car.  Attorneys were retained to defend criminal action and to defend the forfeiture.  Here is the shocking testimony which supported the Judicary Law case and the court’s analysis.  Note that there seems to have been a single instance of deceit.

"In this regard, the defendant sent an affidavit to the plaintiff to sign in August 2004, allegedly related to the forfeiture action. The associate who sent the affidavit and the cover letter admitted, at his deposition, that he knew at the time that the default judgment had been entered and there was no possibility that the plaintiff could retrieve his vehicle, but he did not so inform the plaintiff. Eventually, the plaintiff learned through other means that the default judgment had been entered and his vehicle had been auctioned. [*2]

The Supreme Court properly granted that branch of the defendant’s motion which was for summary judgment dismissing the causes of action alleging legal malpractice. The defendant established that the plaintiff would be unable to prove that he would have been successful in the forfeiture action but for the alleged negligence (see Simmons v Edelstein, 32 AD3d 464, 465; Lichtenstein v Barenbaum, 23 AD3d 440; Edwards v Haas, Greenstein, Samson, Cohen & Gerstein, P.C., 17 AD3d 517, 519). In opposition, the plaintiff failed to raise a triable issue of fact.

In addition, the defendant established, prima facie, its entitlement to judgment as a matter of law dismissing the cause of action alleging fraud, as that cause of action was not pleaded with the specificity required under CPLR 3016(b) (see Dumas v Fiorito, 13 AD3d 332, 333).

The court erred, however, in dismissing, as duplicative of the causes of action alleging legal malpractice, the cause of action alleging violation of Judiciary Law § 487. A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct (see Simmons v Edelstein, 32 AD3d at 465; Edwards v Haas, Greenstein, Samson, Cohen & Gerstein, P.C., 17 AD3d at 519). Furthermore, in opposition to the defendant’s establishment, prima facie, of its entitlement to judgment as a matter of law as to this cause of action, the plaintiff raised a triable issue of fact as to whether the defendant intentionally deceived him (cf. Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534, 537; Knecht v Tusa, 15 AD3d 626, 627). "

In Tatum v. Oberg; UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT;2009 U.S. Dist. LEXIS 82208;September 3, 2009 we see a spirited discussion of the overlap between fraud claims and negligence, as well as a discussion of the overlap between breach of contact claims and negligence.  It is a 2d Circuit case decided on Connecticut law, but the basic premises are similar.

"Oberg and FOMH first move to dismiss Tatum’s fraud claim. Under Connecticut law, a fraud claim is established if "(1) a false representation was made as a statement of fact; (2) the statement was untrue and known to be so by its maker; (3) the statement was made with the intent of inducing reliance thereon; and (4) the other party relied on the statement to his detriment." Weinstein v. Weinstein, 275 Conn. 671, 685, 882 A.2d 53 (Conn. 2005). In this case, Tatum alleges that Oberg and FOMH committed fraud because Oberg made numerous false statements of fact related to Tatum’s dissolution action (see, supra section II); Oberg knew such statements to be untrue; Oberg intended to induce Tatum to rely [*9] on her statements; and Tatum relied on Oberg’s statements to his detriment. ""It is also worth noting that Tatum does not specify facts in support of his assertion that Oberg knew her allegedly fraudulent statements to be false and made them for the purpose of inducing Tatum to rely on them. While Rule 9(b) states that the scienter element of fraud "may be alleged generally," pleadings with respect to scienter must still comply with the requirements of Rule 8(a)(2). See Ashcroft v. Iqbal, 129 S.Ct. 1937, 1954, 173 L. Ed. 2d 868 (2009). As the Supreme Court has held, a pleading offering [*11] merely "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" is insufficient to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. In this case, Tatum’s Amended Complaint contains merely a bare-bones assertion of scienter. It alleges no "facts that give rise to a strong inference of fraudulent intent," as is required by the law of this Circuit. Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).
 

"Under Connecticut law, the elements of a breach of contract are "the formation of an agreement, performance by one party, breach of the agreement by the other party and damages." Rosato v. Mascardo, 82 Conn. App. 396, 411, 844 A.2d 893 (Conn. App. Ct. 2004) (quoting Bouchard v. Sundberg, 80 Conn. App. 180, 189, 834 A.2d 744 (Conn. App. Ct. 2003)). In general, a client may sue his or her attorney for either breach of contract, negligence or both. Conn. Educ. Ass’n, Inc. v. Milliman USA, Inc., 105 Conn. App. 446, 458, 938 A.2d 1249 (Conn. App. Ct. 2008). See also Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 529-30, 559 A.2d 712 (Conn. App. Ct. 1989). The court must dismiss a claim for breach of contract, however, if the claim is in fact "a claim that one has breached a standard of care in the language of contract." Caffery v. Stillman, 79 Conn. App. 192, 197, 829 A.2d 881 (Conn. Ct. App. 2003). See also Gazo v. City of Stamford, 255 Conn. 245, 263, 765 A.2d 505 (Conn. 2001) [*13] ("[W]e look beyond the language used in the complaint to determine what the plaintiff really seeks. . . . [P]utting a contract tag on a tort claim will not change its essential character.").

Tatum’s breach of contract and malpractice claims are based largely on the same underlying facts. The only difference in this respect is that the malpractice claim, but not the breach of contract claim, rests in part on allegations that Oberg and FOMH "[c]onceal[ed] discovery and/or fail[ed] to obtain discovery that would have alerted Plaintiff to their failure to comply with the standard of care," and "[f]ail[ed] to respond to Plaintiff’s request regarding the manner in which the case proceeded." Am. Comp. P 19(f)-19(g). 3 Despite similar factual underpinnings, Tatum asserts that his breach of contract claim derives from Oberg and FOMH’s "contractual duty to provide timely and correct legal advice to Plaintiff," and that his malpractice claim derives from the defendants’ "duty to provide Plaintiff with professional services equal to the degree of skill and learning commonly applied under the circumstances then and there existing by a prudent member of the legal profession." Am. Comp. PP 18, 18.

"

In Felt v. Van Alstyne we see an interesting real estate-legal malpractice case, one which is, unfortunately, no so uncommon.  Plaintiff owns 51 acres of property in Greene County and wants to sell a portion, 6.1 acres.  The balance of 45 acres or so, which is unimproved, is to be sub-divided and kept.  Defendant attorney is hired to do the closing.

What is a closing?  It is the sale transaction, and the attorney for a party is supposed to make sure that the transaction actually follows the intent of the parties.  Here everything went wrong.  Now, plaintiff, who has sued the buyers in a separate action, must sue the attorney and the title closing company over this mistake:  the deed did not have a description of the premises to be sold attached to it.  Imagine that, the deed simply recited all 51 acres, when in fact only 6 acres were to be sold.

The defense?  That’s how it’s done here!    The lesson to be taken from this case, is that when plaintiff moves for summary judgment, and includes the affidavit of an expert, defendant better have one too.  The affidavit of co-defendant was simply not enough.  Result?  Plaintiff is granted partial summary judgment with the damages to await the outcome of another trial, presumably against the buyer.

In law, sometimes a single case decision opens the flood gates.   This is an oft-heard argument, with a rarely seen result, yet in legal malpractice the Ulico v. Wilson Elser, 56 AD3d 1 (1st Dept, 2008) case seems to have accomplished the re-awakening of "breach of fiduciary duty."

As an example, see Colucci v. Arisohn, 2009 NY Slip Op 32053(U).  There the claim was that plaintiff had been involved in a medical billing scheme which went into the 70+ million range, and involved Beth Israel Hospital.  He hired attorneys who at the same time were representing another plaintiff in a qui tam whistle blower action.  The plaintiff [relator] in such a case may reap a significant reward, and here, a Mr. Perez did.

Colucci ended up pleading guilty to Grand Larceny and settling a civil suit as a defendant.  He felt that his own qui tam information was taken from him by the attorneys and used in the Perez case, all to the attorney’s benefit.

The interesting aspect of this case is that the legal malpractice case was dismissed on the basis that a criminal defendant who cannot demonstrate actual innocence may not sue for legal malpractice.  Plaintiff’s Judiciary Law section 487 case was dismissed as too similar to the legal malpractice case.

The Breach of fiduciary duty matter, however, remains vital, and in the case.  Based upon Ulico the court held:

"The attorney-client relationship imposes on the attorney `the duty to deal fairly, honestly and with undivided loyalty…including maintaining confidentiality, operating competently, safeguarding client property and honoring the client’s interests over the lawyers [Matter of Cooperman, 83 NY2d 465 (1994).  Thus any act of disloyalty by counsel will also comprise a breach of the fiduciary duty owed to the client."

"The Labaton Defendants argue that plaintiff’s breach of fiduciary duty-based claims (as well as fraud, usurpation of economic opportunity and unjust enrichment claims) should be dismissed because they are duplicitive of plaintiff’s malpractice claims.  This argument is rejected."