One of the problems in figuring out a legal malpractice case by reading an appellate decision, is that even when the court gives a detailed set of facts, thee are many connections either not apparent or missing.  Here in Ito v. Suzuki, 2008 NY Slip Op 9437, Decided December 2, 2008, Appellate Division, 1st Department, the shenanigans of this real estate deal are dizzying.

"Plaintiff, who does not speak English, was induced to make an investment of $1 million to acquire a two-thirds interest in Keystone International LLC and to sign an operation agreement that gave defendant Sam Suzuki permanent managing control of its affairs. Keystone took title to a property consisting of 41 condominium units owned by an entity controlled by Hiroyoshi Hasegawa. The transaction was in derogation of "a clear and unequivocal court order" enjoining transfer of the property due to the pendency of divorce proceedings (Hasegawa v Hasegawa, 281 [*2]AD2d 594, 595 [2001]). The complaint adequately pleads a cause of action for fraud, alleging that Sam Suzuki used plaintiff’s funds to obtain property with a cloud on its title (because of the injunction against transfer and the filing of a lis pendens), for an inflated price and under financing terms onerous to plaintiff. It further asserts that Suzuki diverted funds from Keystone to satisfy personal obligations, which included payment of a $1.7 million settlement of a fraudulent conveyance claim brought by Hiroyoshi Hasegawa’s wife.

The complaint alleges that Suzuki, represented by Rich, defrauded plaintiff, who maintains that she was represented by Roshco during that period. A fair reading of the allegations against the attorney defendants is that they failed to disclose the extent to which the transaction was detrimental to plaintiff. Lacking, however, is the assertion of any misrepresentation by either Roshco or Rich that was calculated to induce plaintiff’s detrimental reliance so as to support a claim of fraud (cf. Houbigant, Inc. v Deloitte & Touche, 303 AD2d 92, 100 [2003]) and, absent any underlying tort, the conspiracy claim is likewise without foundation

Given that the detailed facts concerning the extent of the attorney defendants’ involvement in the fraudulent scheme are peculiarly within the knowledge of other parties (see Jered Contr. Corp. v New York City Tr. Auth., 22 NY2d 187, 194 [1968]) and the substance of the alleged wrongdoing is set forth in the affidavits of plaintiff and her brother, the circumstances surrounding the proposed cause of action are sufficiently stated to support amendment of the complaint (Zaid Theatre Corp. v Sona Realty Co., 18 AD3d 352, 354-355 [2005]; cf. Non-Linear Trading Co. v Braddis Assoc., 243 AD2d 107, 116 [1998])."

During the campaign season, news reports ouline the amounts of money individuals donate to candidates, and there are websites which track donations by name.  Recently in West Virginia, a legal malpractice case involving the Massey Coal company there made news when the US Supreme Court decided to hear the question of whether campaign contributions required recusal of a State Supreme Court justice.

Here, different state, same issue. Debra Cassens Weiss reports in the ABA Journal. "A motion filed in a legal malpractice appeal contends that four of Illinois’ seven Supreme Court justices should recuse themselves because of campaign contributions by the defendant law firm, Corboy & Demetrio.

If the motion is granted, the court would not have enough votes to issue an official ruling, the Chicago Sun-Times reports. The Illinois Constitution has no provision for temporary judicial appointments.

The motion says Corboy & Demetrio has made donations ranging from $1,500 to $52,000 to campaigns of the four justices, according to the Sun-Times.""The underlying malpractice suit resulted in a $100,000 judgment against Corboy & Demetrio, the story says. The suit contends the well-known plaintiffs firm botched a suit filed on behalf of a Georgia woman killed in a 1995 car crash. The suit names former Corboy lawyer G. Grant Dixon III and managing partner Robert Bingle, the story says. The firm has admitted the suit was dismissed because it failed to follow a court order, but denies other allegations, according to the Sun-Times."

Plaintiff claimed pay and benefits from the Board of Education.  Apparently there is a two part process for such claims.  The first thing to do is to request a hearing.  Later, one may bring an Article 78 proceeding.

In Leticia Abreu v Jose A. Quesada,4489, 6884/05; SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT; 2008 NY Slip Op 8420; 866 N.Y.S.2d 571; 2008 N.Y. App. Div. LEXIS 8251  Defendant attorneys failed to serve notice for a hearing.  "The record contains no dispute that defendant failed to file a proper request for a hearing pursuant to Education Law 3020-a(2)(c) and that this failure resulted in the loss to plaintiff of pay and benefits to which she otherwise would have been entitled, pending a hearing, before termination"

Plaintiff then started an Article 78 proceeding, with some success.  This success did not rule out a legal malpractice case against the attorneys who did not notice the hearing.  "The partial grant of plaintiff’s article 78 petition against the Board of Education does not collaterally estop plaintiff from asserting defendant’s legal malpractice (see Weiss v Manfredi, 83 NY2d 974, 976-977, 639 N.E.2d 1122, 616 N.Y.S.2d 325 [1994]; Savattere v Subin Assocs., 261 AD2d 236, 236, 690 N.Y.S.2d 229 [1999])."

In STEPHEN F. BRUMMER, , v THE BARNES FIRM, P.C., CELLINO & BARNES, P.C., STEPHEN E. BARNES, ROSS M. CELLINO, AND RICHARD J. BARNES, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT;2008 NY Slip Op 8831; 2008 N.Y. App. Div. LEXIS 8924 we see a discussion of legal malpractice cases centering on a failed appeal.  The rules are fundamentally different for legal malpractice cases centering on appeals and those centering on the underlying case.  One thing that is not mentioned by the court is that it remains a question of law and not a question of fact whether an appeal would succeed. Experts may not opine and no jury will be asked to answer this question; only the judge will answer it

Here, plaintiffs were defendants in the underlying case, and they sue their attorney for a failed appeal.  "Plaintiff commenced this action alleging that defendants committed legal malpractice by failing to take an appeal from an order granting the cross motion of the Town of Tonawanda (Town) for summary judgment dismissing the complaint against it in plaintiff’s underlying Labor Law action. We conclude that Supreme Court properly granted defendants’ motion for summary judgment dismissing the complaint in this legal malpractice action. ""Plaintiff failed to raise a triable issue of fact inasmuch as he "did not set forth the requisite factual allegations demonstrating that, but for defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action" (Ellsworth v Foley, 24 AD3d 1239, lv denied 6 NY3d 712; see generally Williams v Kublick, 302 AD2d 961), i.e., he failed to raise an issue of fact whether he would have prevailed on an appeal with respect to the dismissal of the complaint in the underlying action against the Town (see Lagana v Willner, 267 AD2d 210; see also Senise v Mackasek, 227 AD2d 184, 185). Indeed, the record establishes that the Town was not liable under the Labor Law because it was not the owner of the property where plaintiff was working, nor was it an agent of the owner because it did [**3] not have the authority to supervise and control the work ."

Attorney A refers a case to Attorney B, and agree that they will share in a contingent fee between them.  Ethical issues aside, may Attorney A, who has not committed malpractice nor taken an active role in the case, be held responsible for Attorney B’s malpractice?

Rosenstrauss v Jacobs & Jacobs ;2008 NY Slip Op 08472 ;Decided on November 5, 2008
Appellate Division, Second Department  answers that question as follows:
 

"Moreover, the argument of the defendants Markovits & Markovits and Robert L. Markovits (hereinafter together the Markovits defendants), that they cannot be liable because they merely referred Purgess to the other defendants, is belied by the retainer agreement, in which the Markovits defendants agreed to share any contingency fee in the medical malpractice action. Accordingly, the Supreme Court properly denied the defendants’ separate motions for summary judgment dismissing the complaint. "  Here is more:
 

"Patricia J. Purgess retained the defendants to represent her in an underlying medical malpractice action, which she commenced on November 4, 1993. In an order dated March 20, 1996, the Supreme Court, Orange County, dismissed that action pursuant to CPLR 3404. The defendants neither moved to [*2]vacate that order nor perfected an appeal therefrom. Nearly 11 years thereafter, Purgess moved to vacate the aforementioned order of dismissal. In an order dated April 24, 2007, the Supreme Court denied her motion as barred by the doctrine of laches. In a companion appeal, this Court is affirming the order dated April 24, 2007 (see Rosenstrauss v Women’s Imaging Center of Orange County,AD3d [decided herewith]).

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages"
 

"Turnabout is fair play"  This childhood aphorism describes the third-party practice in a newly reported case, 601 Realty Corp. v. Conway Farrell, Curtin & Kelly PC, NY Slip Op. 33076, from Supreme Court, Nassau County.  The case arises from a lead paint case, and features Conway Farrell’s attempt to third-party plaintiff”s personal attorney which fails.

During the trial, Conway Farrell was representing the landlords in a lead paint case.  They seemed to have worked out a stipulation which would have avoided apportionment of damages between the individuals and the Realty Corp, and limited it to the Corporation. The stipulation was never signed, and in retrospect, its form probably precluded its signing.

The stipulation called for the attorney, not the client to sign it, and in the stipulation there was a representation of no insurance.  Attorney says that he could not make such a representation, and that his client would not have wanted him to sign, anyway.

Conway Ferrell says that the failure to sign the stipulation was malpractice, and excuses them from liability.

The case cannot be uploaded to this site, so read it at its original NYS posting.

Criminal Law practitioners enjoy a blanket immunity for legal malpractice not permitted to any other field of law.  Briefly put, a convicted criminal defendant may not successfully sue his attorney unless he can demonstrate innocence or later exoneration.

Here is a case of an individual who pled to a counterfeiting [presumably handbags, ect, and not currency], and was then deported.  His legal malpractice case was wiped out across the board.

Yong Wong Park v Wolff & Samson, P.C.; 2008 NY Slip Op 09176 ;Decided on November 20, 2008 ; Appellate Division, First Department :
 

"Plaintiffs’ claim that defendants committed legal malpractice by advising plaintiff Yong Wong Park to plead guilty to a federal charge of trafficking in counterfeit goods without advising him of the immigration consequences of his guilty plea, or by giving him wrong legal advice about such consequences, is barred by Park’s undisturbed guilty plea (see Carmel v Lunney, 70 NY2d 169, 173 [1987]). We reject plaintiffs’ argument that innocence need not be alleged where, as here, the alleged malpractice related to a collateral matter (deportation) rather
than the core of the criminal action (see Biegen v Paul K. Rooney, P.C., 269 AD2d 264 [2000], lv denied 95 NY2d 761 [2000]; see also Casement v O’Neill, 28 AD3d 508 [2006] [guilty plea bars malpractice claim regardless of plaintiff’s subjective reasons for pleading guilty]). There are other deficiencies in the legal malpractice claim requiring its dismissal: it does not allege that "but for" defendants’ alleged malpractice Park would not have pleaded guilty (see Carmel, 70 NY2d at 173); and to the extent the claim is based on the allegation that defendants affirmatively gave Park wrong advice about the immigration consequences of a guilty plea, such allegation conflicts with, and is precluded by, contrary factual findings made in the federal proceedings in which Park sought to vacate his plea on the ground of ineffective assistance of counsel (see Siddiqi v Ober, Kaler, Grimes & Shriver, 224 AD2d 220 [1996], lv denied 88 NY2d 812 [1996]). "

Demonstrating the ancient rubric, "the enemy of my enemy is my friend" the case of Rosenstrauss v Women’s Imaging Ctr. of Orange County ;2008 NY Slip Op 08473 ; Decided on November 5, 2008 Appellate Division, Second Department    shows us how a procedural issue forces plaintiff to espouse the defense of the legal malpractice defendant attorneys, in order to save the legal malpractice case.  As we said yesterday, there is no lack of irony in legal malpractice,
 

Plaintiff was a medical malpractice plaintiff, and her case was marked off calendar when depositions stalled.  It was still pre-note of course, and was not restored within one year.  Remember that pre-note dismissals are different from post-note dismissals,

Plaintiff sues her attorneys for legal malpractice and they defend by saying that the dismissal was baseless.  They seem to have a point, especially under the Lopez v. Imperial Delivery Serv. (282 AD2d 190 case concerning pre-note dismissals,  so what is a legal malpractice plaintiff to do>

Here they chose to try to fix the med mal case. They did not succeed.  From the dissenting opinion:

"The procedural device of dismissing an action for delay in prosecution is a legislative creation, not a part of the court’s inherent power (see Airmont Homes v Town of Ramapo, 69 NY2d 901, citing Cohn v Borchard Affiliations, 25 NY2d 237). Indeed, it is well settled that a pre-note of issue action can only be dismissed for failure to prosecute if the preconditions contained in CPLR 3216 are met (see Baczkowski v Collins Constr. Co., 89 NY2d 499; Travis v Cuff, 28 AD3d 749; Hodge v New York City Tr. Auth., 273 AD2d 42). "CPLR 3216, as it now reads, is extremely forgiving of litigation delay. A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90 day period (CPLR 3216[b])" (Baczkowski v Collins Constr. Co., 89 NY2d at 503). It is undisputed in this case that no demand to serve and file a note of issue within 90 days was ever served upon the plaintiff.

In my view, it is improper for the majority to obtain the prohibited result of dismissal of this action for neglect to prosecute despite the lack of compliance with CPLR 3216, merely by terming the rationale for the result as laches, particularly where, as here, the application of the doctrine of laches is contrary to established precedent (see Lopez v Imperial Delivery Serv., 282 AD2d 190). This action was improperly dismissed pursuant to CPLR 3404, and the conditions of CPLR 3216 were not met. As such, the plaintiff is entitled to have the March 20, 1996, dismissal of the medical malpractice action vacated and the action restored to the trial calendar. Therefore, I respectfully dissent. "