Murphy v Certain
2023 NY Slip Op 02978
Decided on June 06, 2023
Appellate Division, First Department

“The court properly dismissed the complaint for failure to state a cause of action. The claims for conversion or trespass to chattels were correctly dismissed because they do not sufficiently identify the property at issue (see Sporn v MCA Records, 58 NY2d 482, 487 [1983]). The complaint fails to state a cause of action for defamation and consequently, libel and slander, because it does not set forth the words of the allegedly false statement and it does not allege any other of the requisite elements of the claims (see CPLR 3016 [a]; Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). The deceit under Judiciary Law § 487 and fraud claims were insufficiently pleaded because they do not identify any misrepresentation made by defendants (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178 [2020]; Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; CPLR 3016 [b]). Neither the intentional infliction of emotional distress nor the negligent infliction of emotional distress claims states a cause of action, as the intentional infliction claim does not allege extreme and outrageous conduct by defendants (see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016]), and the negligent infliction claim does not identify any applicable duty owed by defendants (see Brown v New York Design Ctr., Inc., — AD3d &mdash, 2023 NY Slip Op 01228, *5 [1st Dept 2023]).”

Tueme v Lezama 2023 NY Slip Op 03036 Decided on June 7, 2023 Appellate Division, Second Department is practically a gothic novel, with allegations of false testimony, false accusations and perjured testimony all in aid of getting a better divorce settlement. The Appellate Division reversed and ended the case. Here, we discuss the Judiciary Law 487 claims.

“The plaintiff and the defendant Janet P. Lezama were married in 1990. In 2016, Lezama commenced an action for a divorce and ancillary relief (hereinafter the divorce action) in which she was represented by the defendants Dana Navins and Kass & Navins, PLLC (hereinafter together the attorney defendants). After the divorce was finalized, the plaintiff commenced this action against Lezama and the attorney defendants to recover damages for false arrest, malicious prosecution, negligent infliction of emotional distress, and violation of Judiciary Law § 487 based on allegations that the defendants concocted a “plan” to obtain a divorce against the plaintiff and obtain an excessive “financial settlement.” Among other things, the plaintiff alleged that, as part of this plan, Lezama made false allegations of child abuse and criminal conduct against the plaintiff.

The attorney defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. Together with his opposition to the motion, the plaintiff served an amended complaint, which replaced the cause of action to recover damages for negligent infliction of emotional distress with a cause of action to recover damages for intentional infliction of emotional distress. The attorney defendants, in effect, elected to apply their motion to the amended complaint. The Supreme Court considered the attorney defendants’ motion as directed against the amended complaint, and denied the motion. The attorney defendants appeal.”

“Further, the Supreme Court erred in denying those branches of the attorney defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the causes of action to recover damages for intentional infliction of emotional distress and violation of Judiciary Law § 487 insofar [*3]as asserted against them. With respect to the intentional infliction of emotional distress cause of action, the improper conduct alleged was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Howell v New York Post Co., 81 NY2d 115, 122 [internal quotation marks omitted]; see Matthaus v Hadjedj, 148 AD3d 425, 425-426; Zapata v Tufenkjian, 123 AD3d 814, 816). With respect to the Judiciary Law § 487 cause of action, the plaintiff failed to allege with specificity any material misstatements of fact made by the attorney defendants in the divorce action with the intent to deceive that court (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178; see also Looff v Lawton, 97 NY 478, 482). Moreover, to the extent the plaintiff alleged that Navins gave false testimony as a witness in a criminal case against him, such an allegation cannot properly form the basis of a Judiciary Law § 487 cause of action (see generally Altman v DiPreta, 204 AD3d 965, 969).”

While this criminal procedure case about the assignment and adjudication of sex offender levels has nothing to do with legal malpractice, an introduction to the dissent sets an interesting illustration of how legal malpractice is really different from almost all other areas of the law. People v Weber 2023 NY Slip Op 03301 Decided on June 15, 2023 Court of Appeals Halligan, J. is an early (if not the first) decision written by the newly appointed Judge Halligan.

The allusion comes in Judge Wilson’s dissent.

“Our adversarial system is premised on the idea that interested parties will bring all the issues they wish to have a court consider, thus allowing courts to make the most informed decision in each case. Counsel can choose to advance a kitchen sink of arguments, carefully choose a more limited set, or carelessly omit a potentially strong argument. Because our courts rely on the diligence and judgment of counsel in the presentation of issues for decision, the consequence for parties whose counsel fails to advance a meritorious claim are high, regardless of whether the failure arose from a clever strategy or a grotesque bungle. Other than when counsel’s negligence is so substantial as to violate the constitutional right of a criminal defendant to effective assistance of counsel, litigants are barred from belatedly advancing claims they had a full and fair opportunity to raise initially. Civil litigants have no such relief under our established precedent (other than by a separate claim for legal malpractice).”

Duckles v Zatkowsky 2023 NY Slip Op 31942(U) June 9, 2023 Supreme Court, New York County Docket Number: Index No. 156173/2022 Judge: Mary V. Rosado gives a procedural explanation of how to group a set of legal malpractice and executor self-dealing claims together before one tribunal.

“This case arises out of alleged legal malpractice committed by Defendants in relation to the planning and administration of Plaintiff decedent’s estate (NYSCEF Doc. 1 ). As of the date of this motion’s submission, there were three separate actions related to Plaintiff decedent’s estate pending in New York County Surrogate’s Court.

Another case titled Levy v Estate of Mahler et. al., Sup. Ct. New York Co. Index No.:
650196/2021 was initiated seeking specific performance related to the purchase of cooperative shares owned by the decedent. Decedent’s children intervened in that matter, and the case was transferred to New York County Surrogate’s Court by a decision and order of Justice Louis L. Nock dated February 16, 2021.

Another malpractice action against Defendants with similar allegations of malpractice was brought by Joyce Duckies on December 14, 2021 in Monroe County. In that case, Defendants moved to have the case removed to New York County Surrogate’s Court to ensure consistent determinations with estate proceedings seeking similar relief. The motion was granted on May 20, 2022 and the case was transferred to New York County Surrogate’s Court.

Pursuant to Surrogate’s Court Procedure Act§ 201(3), the Surrogate’s Court has “full and
complete general jurisdiction in law and in equity to administer justice in all matters relating to the estates and affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein”.

Specifically at issue in this case is (a) the creation of a trust to minimize the size and
complexity of the probate estate; (b) the drafting of Decedent’s Last Will and Testament; (c) placing certain properties into LLCs instead of a trust and the impact that would have on estate planning purposes, and ( d) Defendants’ performance as executor of Decedent’s estate in New York County Surrogate’s Court. As such, the issues in this case touch directly on proceedings which have occurred in Surrogate’s Court, as well as the administration of decedent’s estate. In fact, the alleged damages in this case are damages to the estate of tax payments of $3.8 million (see NYSCEF Doc. 2 and ,i 64 ). There is also the allegation that Defendants, as executor of the estate, has engaged in self-dealing (id. at ,i 65). Given the highly interwoven nature of the allegations of
legal malpractice and administration of decedent’s estate, including certain acts which purportedly took place in New York County Surrogate’s Court, it is clear that New York County Surrogate’s Court has jurisdiction over these claims.”

New York, and especially Manhattan are breeders for real estate legal malpractice litigation. High value real estate transactions, and the variety/complexity of those transactions inevitably lead to legal malpractice cases, each with its own very high value. 35 W. 26th St. Realty, LLC v Norris, McLaughlin, & Marcus, P.C. 2023 NY Slip Op 31851(U) June 2, 2023 Supreme Court, New York County Docket Number: Index No. 155004/2022 Judge: Lori S. Sattler is a fine example.

“Plaintiff 35 West 26th Street Realty, LLC (“Plaintiff”) is a real estate company that owns
a five-story building located at that address (“the building”) with a sole owner and officer, Osman Bessa. It seeks to recover damages purportedly caused by Defendants’ negligent representation in an administrative proceeding before the New York Loft Board. Nonparty Norris McLaughlin is a law firm and Proefriedt is an attorney there.
Plaintiff purchased the building in 2002. At the time, the building had been subject to the Loft Law and the Loft Board’s jurisdiction for nearly 20 years. As set forth in the papers, the In 1985, a tenant harassment finding was issued against a previous owner of the building concerning, inter alia, conditions in the building’s second and fifth floor units. The tenant harassment finding remained in effect at the time Plaintiff purchased the building, although Bessa contends he was unaware of it.

Plaintiff alleges that it retained Defendants in 2007 to remove the building from the Loft
Board’s jurisdiction and deregulate its units. It maintains that Proefriedt was held out by Norris McLaughlin as having “considerable experience in matters related to the Loft Board” and that Proefriedt had represented the building’s previous owner (NYSCEF Doc. No. 8, Complaint ¶¶ 24-26). According to Plaintiff, at Proefriedt’s recommendation, it bought out the tenants of the second floor and fifth floor units in 2007 and 2014 respectively. Plaintiff maintains these purchases were made so that the units could be deregulated and rented at the prevailing market rate pursuant to Section 286(12) of the Loft Law. To that end, Bessa allegedly executed sale of rights records under the Loft Law on behalf of Plaintiff at Proefriedt’s instruction. Proefriedt then filed these forms with the Loft Board on June 15, 2016.”

““A legal malpractice claim accrues ‘when all the facts necessary to the cause of action
have occurred and an injured party can obtain relief in court’” (McCoy v Feinman, 99 NY2d 295, 301 [2002], quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]). “In most cases, this accrual time is measured from the day an actionable injury occurs, even if the aggrieved party is ignorant of the wrong or injury” (id. [citation omitted]). An actionable injury has been found to have occurred when a plaintiff’s damages become “sufficiently calculable to permit [the] plaintiff to obtain prompt judicial redress” (id. at 306; see also Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530, 531 [1st Dept 2020], quoting McCoy, 99 NY2d at 301, citing King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541 [2d Dept 2018]).

Defendant meets its prima facie burden of showing that the statute of limitations for
malpractice expired before Plaintiff commenced this action. It annexes to its moving papers a copy of the June 24, 2016 Loft Board letter to Plaintiff stating that the harassment finding remained in place and the second and fifth floor units were still subject to rent regulation under the Loft Law (NYSCEF Doc. No. 9). It also submits a January 25, 2017 invoice sent to Bessa by Norris McLaughlin for Proefriedt’s legal services containing an entry for November 16, 2016 that states “Finalize application” (NYSCEF Doc. No. 10). These documents establish, prima facie, that any purported malpractice in failing to apply for a termination of the harassment finding took place in 2016 when the applications were submitted and that any future attempts to raise the units’ rents to fair market value would fail unless the harassment finding was removed.

Plaintiff fails to aver any evidentiary facts indicating that the statute of limitations had not expired at the time it commenced this action or that otherwise create a question of fact as to whether this action was timely (see MTGLQ Invs., LP, 172 AD3d at 644). It annexes to its opposition an affidavit from Bessa and copies of emails between Bessa and Proefriedt from June and July 2016 (NYSCEF Doc. Nos. 15, 17-18). The affidavit, which merely reiterates Plaintiff’s argument that Bessa was unaware of the June 24, 2016 Loft Board letter, only asserts that Bessa believed Proefriedt “learned about the determination in the summer of 2016” and “likely delayed” the final application to the Loft Board by several months to cover up his failure to have the harassment finding terminated (Bessa aff ¶¶ 19, 25). Neither these speculatory assertions nor
the 2016 emails between Bessa and Proefriedt create an issue of fact as to whether Plaintiff’s alleged damages only became ascertainable in October 2019 or the malpractice cause of action otherwise accrued at a later date. The Court therefore finds that the statute of limitations accrued on August 8, 2019.

Plaintiff also fails to create an issue of fact as to whether the statute of limitations was
tolled because it was continuously represented by Defendants between the 2016 removal application filings and the 2019 Loft Board final order. Under the continuous representation doctrine, the statute of limitations for legal malpractice is tolled “only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy, 99 NY2d at 306; Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). The continuous representation toll ends upon the conclusion of the matter or upon the attorney’s withdrawal from representation (see Shumsky, 96 NY2d at 170-171; Williamson ex rel. Lipper
Convertibles, L.P. v PricewaterhouseCoopers LLP, 9 NY3d 1, 9-1). An attorney’s withdrawal can be inferred where, for instance, the attorney ceases to respond to the plaintiff’s attempts at communication (cf. Shumsky, 96 NY2d at 170-171; Champlin v Pellegrin, 111 AD3d 411 [1st Dept 2013] [13-year gap in communication put plaintiff on notice that representation had terminated]).”

North Flatts LLC v Belkin Burden Goldman, LLP 2023 NY Slip Op 02954 Decided on June 01, 2023 Appellate Division, First Department very quickly affirms a denial of summary judgment on two grounds. One was a premature motion for summary judgment was improper and the second was that no expert opinion was offered in support of defendant’s argument.

“In this legal malpractice action, plaintiff alleges that defendant, in connection with its representation of plaintiff in the legalization of an interim multiple building for residential use, negligently failed to seek a time extension to achieve compliance with the safety and fire protection standards of article 7-B of the Multiple Dwelling Law, thereby prohibiting plaintiff from legally collecting rent from its tenants pending its receipt of a final residential certificate of occupancy (see Multiple Dwelling Law art 7-C). Defendant did not satisfy its prima facie burden of establishing its entitlement to summary judgment dismissing the complaint as a matter of law, as defendant failed to submit an expert opinion demonstrating that it did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community (see Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010]). Defendant contends that it had timely filed an article 7-B compliance form on plaintiff’s behalf in reliance on the certification of plaintiff’s architect, and that the filing of that form prohibited it from seeking a time extension to achieve article 7-B compliance. However, it has not submitted an expert affidavit establishing that its reliance on the architect’s opinion was reasonable under the circumstances, or explaining how defendant was prohibited from withdrawing the filed form and seeking a time extension to comply with article 7-B. Moreover, absent an expert affidavit, defendant failed to establish prima facie that its alleged negligence in its the handling of the article 7-B compliance form was not a proximate cause of plaintiff’s losses (see id.).

In any event, the court properly denied the prediscovery motion as premature, given plaintiff’s showing that facts essential to justify opposition to defendant’s motion may lie within defendant’s exclusive knowledge or control (see CPLR 3212[f]; Lyons v New York City Economic Dev. Corp., 182 AD3d 499, 499-500 [1st Dept 2020]). In response to defendant’s claim that it was not aware of potential issues with the architect’s certification of compliance until the August 2021 conference, after the May 2021 deadline to apply for an extension had expired, plaintiff pointed out that its tenants had disputed the architect’s compliance opinion as early as January 2021. Discovery is necessary to shed light on when defendant knew of a potential problem with the filed article 7-B compliance form, and whether defendant could have timely withdrawn that form and sought a timely extension to achieve compliance.”

Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP 2023 NY Slip Op 2863
Decided on May 31, 2023 Appellate Division, Second Department shows how the courts take a deep dive into attorney defenses to legal malpractice claims. With a vigor not found in other areas of negligence, attorney defenses to legal malpractice are scrutinized and applied against plaintiffs.

“In February 2019, the plaintiffs commenced this action against the defendants, former counsel to the plaintiffs, inter alia, to recover damages for legal malpractice. The plaintiffs alleged, among other things, that the defendants committed legal malpractice in their representation of the plaintiffs in a breach of contract action commenced by the plaintiffs against a nonparty medical billing services provider (hereinafter the underlying action) and, with respect to the plaintiff Lawrence F. Jindra, in a “disability insurance claim matter.” According to the plaintiffs, the defendants pressured the plaintiffs to “drop” the underlying action. The plaintiffs also alleged, inter alia, that the defendants, through legal nonfeasance, caused Jindra’s disability insurance policy to lapse. Thereafter, the defendants moved to dismiss the complaint based on documentary evidence, the expiration of the statute of limitations, and the failure to state a cause of action. As is relevant to the appeal, by order entered December 11, 2019, the Supreme Court granted that branch of the defendants’ motion which was to dismiss the cause of action alleging legal malpractice. The plaintiffs appeal.”

“

Here, the plaintiffs failed to plead that, but for the defendants’ negligence, they would have prevailed in the underlying action (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813). To the contrary, as noted by the Supreme Court, it is uncontroverted that the plaintiffs settled the underlying action in order to avoid potential criminal liability for fraud. To the extent that the complaint alleged that the plaintiffs would have fared better at trial or in the settlement, the allegations in the complaint were conclusory and lacked factual support (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506). The plaintiffs’ “hindsight criticism of counsels’ reasonable course of action . . . does not rise to the level of legal malpractice” (Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 758 [citation and internal quotation marks omitted]).

With respect to so much of the cause of action alleging legal malpractice as it relates to Jinder’s disability insurance claim matter, the plaintiffs also failed to set out the elements of a legal malpractice cause of action, including omitting certain basic factual information such as any allegations that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by any member of the legal profession and damages (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 812). Moreover, the defendants established that, to the extent that the cause of action alleging legal malpractice was predicated upon Jindra’s disability insurance claim matter, it was barred by the applicable statute of limitations (see Webster v Sherman, 165 AD3d 738, 741; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735).”

We believe (based on anecdotal reading of legal malpractice decisions) that a more than expected number of summary judgment motions are granted in favor of attorneys in legal malpractice settings. Gardner v Sacco & Fillas, LLP 2023 NY Slip Op 02865
Decided on May 31, 2023 Appellate Division, Second Department is an example of the contrary finding: affirmance in favor of the client and a very short decision as well. The takeaway when the Appellate Division says that the attorneys failed to submit sufficient evidence is that they really did not like the attorney’s position one bit.

“In September 2014, the plaintiff commenced this action against, among others, the defendants Sacco & Fillas, LLP, Tonino Sacco, Elias N. Fillas, and Lamont Rodgers (hereinafter collectively the Sacco defendants), inter alia, to recover damages for legal malpractice, alleging that he incurred damages as a result of the Sacco defendants’ failure to timely file a personal injury action on his behalf. The Sacco defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order entered September 1, 2020, the Supreme Court, among other things, denied the Sacco defendants’ motion. The Sacco defendants appeal.”

“Here, the Supreme Court properly denied the Sacco defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. The Sacco defendants failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal [*2]malpractice cause of action (see Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d at 545; Fricano v Law Offs. of Tisha Adams, LLC, 194 AD3d 1016, 1018; Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652; Atiencia v Pinczewski, 148 AD3d 860, 861). Since the Sacco defendants failed to make their prima facie showing, we do not need to consider the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”