The New York Court system is Byzantine.  There is Supreme Court, Civil Court, District Court, County Court, Surrogate’s Court, and so on.  Where to bring an action?  In Civil Court, of course, the upper limit of jurisdiction is $ 25,000.  In Supreme Court, unlimited.  Defendant attorneys here brought a car case in Civil court, and now have lost summary judgment on whether that was legal malpractice.  Still to come?  Whether there was proximate cause and whether plaintiff passed the car accident threshold. Ironicallythis case too ended up in Civil Court.

David v. Mallilo & Grossman, 300574 TSN 2006 ,decided: September 26, 2007
Judge Manuel J. Mendez ,NEW YORK COUNTY Civil Court

Judge Mendez
OPINION OF THE COURT

"Upon a reading of the foregoing cited papers on this motion for partial summary judgment on liability and this cross motion for summary judgment dismissing the complaint it is the decision and order of this court that the motion is granted to the extent of finding defendants negligent as a matter of law, the cross motion is denied.

FACTUAL BACKGROUND

Plaintiff brings this legal malpractice action against the defendants for their failure to file a summons and complaint in the Supreme Court of the State of New York, thereby depriving them of the ability to obtain a significant monetary amount In damages for the injuries they sustained in a motor vehicle accident on January 25, 2003.

Plaintiffs are husband and wife. On January 25, 2003 plaintiff Steven David was operating his motor vehicle in which plaintiff Rosalie David was a passenger. While their vehicle was stopped in traffic it was struck in the rear by another vehicle, causing their vehicle to strike the vehicle in front and allegedly causing Rosalie David serious physical injuries, requiring surgery. Mrs. David was taken by ambulance from the scene of the accident to a local hospital where she was treated at the emergency room and later released. She was given pain killers and told to visit with her physician. Since she was in pain she visited her orthopedist, Dr. Jacob Rozbruch, on January 28, 2003.

Dr. Rozbruch had seen Mrs. David for an injury she had sustained to her right shoulder on January 20, 2003, five days before the automobile accident, when she tripped and fell on her right shoulder. When she visited him on January 28, he ordered an MRI which revealed a "full thickness tear of the rotator cuff" in the right shoulder. He suggested surgery to repair the injury, which was performed on February 6, 2003.

Plaintiffs contacted defendants approximately one week after the accident and retained them to prosecute their claim. Defendants were aware of the injuries sustained by Mrs. David, of the need for surgery to repair the injury and of the actual surgery performed on February 6, 2003. Despite knowing this, defendants filed their summons and complaint on June 27, 2003 in the Civil Court County of New York, demanding $25,000.00 in damages, thereby limiting Mrs. David to a recovery of $25,000.00 or less for her injuries.

The mistake was discovered during the latter part of the year 2003 and in March of 2004 defendants made a motion in Supreme Court New York county to transfer the action to that court and to increase the demand to $1,000,000.00. The motion was denied by the Hon. Kibbie F. Payne by decision order dated May 14, 2004 in which he stated : "All of the facts on which plaintiff relies in support of the motion were known or available to plaintiff at the time the complaint was served. Thus, because plaintiff has failed to make a sufficient showing by explaining the delay in making the motion, or why the monetary jurisdiction of the Civil Court would be inappropriate under the circumstances, the application is denied . . . accordingly, the application is denied in all respects and the petition is dismissed without prejudice to renewal upon adequate papers." [see Exh D &E plaintiff’s papers]. Justice Payne’s decision was affirmed by the Appellate Division First Department by memorandum decision dated December 15, 2005 [ See Exh. F & G plaintiff’s papers].

Following the denial of the motion and affirmance of the decision, the automobile accident case was settled for $25,000.00. Plaintiffs started this legal malpractice action against defendants by filing a summons and complaint in Supreme Court State of New York, County of New York demanding $750,000.00 for plaintiff Rosalie David and $100.000.00 for Steven David, as the amounts they would have recovered in the automobile accident case if it had been filed in the proper court.

Plaintiffs now move for an order granting partial summary judgment, declaring defendants liable as a matter of law to plaintiffs for legal malpractice, and setting this case down for an immediate trial for the determination of damages. Defendants cross move for an order granting them summary judgment and dismissing plaintiffs complaint. Defendants assert in their motion that plaintiff Rosalie David did not sustain a serious physical injury under New York State Insurance Law § 5102 (d), because it cannot be ascertained if the rotator cuff tear was the result of the trip and fall on January 20, or the automobile accident on January 25, 2003."

Here is a second case from the Federal Circuit,  Air Measurement Technologies v. Akin Gump, which is a more simple application of federal question jurisdiction.  Here the issue on appeal was whether the Federal District Court had subject matter jurisdiction over this non-diverse state court legal malpractice action.  District court and the Appellate Court both determined that the case involved a substantial federal question – patent law- and held that the court did indeed have jurisdiction, and that the matter was to continue in District Court and not be remanded.

Here is a widely reported Federal Circuit Case, Immunocept v. Fulbright & Jaworsky which discusses, in great detail when a legal malpractice case, brought in state court, and removed to district court may become subject to the law of jurisdictions other than the state in which it was brought.

As an example, a legal malpractice case arising from a simple car accident  [which coincidentally has full diversity of citizenship] may be removed to District Court, but will not be subject to Federal law.  In this contra-similar case, which arose under Patent law, and is subject to federal question jurisdiction, federal law will apply.  Here the statute of limitations was implicated.

 

No decision has been published yet, but Anthony Lin at the NYLJ reports that this legal malpractice case has been dismissed.  It arises from representation of nieces and nephews of holocost victims from the 1930’s.

"A Manhattan federal judge has thrown out a legal malpractice suit arising out of competing Holocaust restitution claims.

In 2005, a group of nieces and nephews of Jewish publisher and art collector Gustav Kirstein and his wife Clara, both of whom died in Germany in the 1930s, sued their former lawyer, New York’s David J. Rowland, claiming his mistakes caused them to have to share restored property and funds with another claimant.

But in Nordwind v. Rowland, No. 04 Civ. 9725, Judge Donald C. Pogue, sitting by designation in the Southern District of New York from the U.S. Court of International Trade, granted summary judgment to Rowland, finding that the relevant German restitution law would not have permitted the nieces and nephews a full recovery.

After their deaths, the Kirsteins’ estate passed to their daughters, Gabrielle Jacobsen and Marianna Baer, both of whom had emigrated to New York, where Jacobsen died in 1957 and Baer died in 1986.

The nieces and nephews retained Rowland in 1998 to represent them in seeking restitution for property lost or seized during Nazi rule. That included a number of art works as well as bank accounts. The nieces and nephews had been assigned Marianna Baer’s interest in the Kirstein estate by her daughter-in-law Miriam Reitz Baer.

But Jacobsen’s interest passed to her adopted son Godfrey, who died in 1980, naming a woman called Christel Gauger as his sole heir. Rowland determined Gauger held Gabrielle Jacobsen’s interest and sought to represent her as well. She would receive a 50 percent interest in property and funds restored to the Kirstein estate, with the other half going to the nieces and nephews. "

Here is a rare case of a legal malprctice/arrest of an attorney for allegedly forging a court order so that his clients would not know that he had forgotten to file and serve a summons and complaint.  Forgetting happens all the time, lying to clients sometimes, forgery rarely, arrests almost never.  The twist?  Clients not hurt!  Complaint may be served 4 years late.  The story:

"Laurence S. Jurman of Dix Hills allegedly forged the name of Supreme Court Justice William Rebolini (See Profile) to a judicial order in a civil lawsuit filed as the result of the dispute, according to a statement issued by the Suffolk County District Attorney’s Office in May of this year.

On Wednesday, Mr. Jurman, 40, appearing without counsel, pleaded not guilty to a single count of criminal possession of a forged document in the second degree, a class D felony punishable by 2 1/3 to 7 years in prison. Mr. Jurman was released on his own recognizance by District Judge Paul Hensley (See Profile) and is due back to court on Nov. 19.

Mr. Jurman, who was admitted to the state bar in 1991, allegedly advised his clients, plaintiffs who were dissatisfied with the pace of their lawsuit, that Justice Rebolini on May 4 had denied a motion to vacate a nonexistent default by defendants. He subsequently supplied plaintiffs with a copy of the order purportedly signed by Justice Rebolini.

Mr. Jurman could not be reached for comment Friday night.

The background of Mr. Jurman’s arrest is spelled out in a decision handed down last month by Supreme Court Justice Edward D. Burke (See Profile) allowing the plaintiffs more time to effect service of a summons and complaint that had laid dormant since being filed four years ago.

In Yahney v. Wolforst, 16106/03, Justice Burke refused to penalize plaintiffs Jeff and Deborah Yahney for relying on Mr. Jurman.

The decision appears on page 20 of the print edition of today’s Law Journal.

"While the court acknowledges the absence of diligence and the extended length of the delay of four (4) years in effecting service upon the defendants, both of these factors are attributable solely to egregious conduct on the part of the plaintiffs’ former counsel, which this court will not impute to the plaintiffs," the judge wrote.

He said he was forwarding a copy of his order and supporting papers to the district attorney and the grievance committee of the Tenth Judicial District.

According to the decision, the Yahneys accused Joe and Orsola Wolforst of negligently building a retaining wall and berm, resulting in water damage to the Yahneys’ property due to the changed grade of their land.

Around June 2003, the Yahneys retained Mr. Jurman to sue the Wolforsts for monetary damages and a permanent injunction.

On June 10, 2003, a summons and complaint was filed in Suffolk County Supreme Court and an index number assigned. And that is where the legal process ended, Justice Burke said.

"Plaintiffs expected that the defendants would be served with the summons and complaint and that the action would proceed in the normal course," he said. "However, this action remained dormant and without any judicial intervention as the same was not initialized by the filing of a Request for Judicial Information until the interposition of this ex parte application for relief pursuant to CPLR 306-b on September 20, 2007." "

Client hires attorney.  Attorney works on case, very hard, and does a good job?  Other problems arise, such as criminal investigations of client.  Client drops case.  Attorney loses contingent fee.  Can attorney sue client for lost fee?  Here, the case says NO !.

"In a short opinion, the Court rejects the plaintiff law firm’s effort to create a new rule of client liability. The Court explains that the law firm’s legal theory would distort the complex calculus about whether to pursue litigation and “mock[] the idea of client control.” In the instant case, it’s no surprise that the client decided not to pursue civil litigation in the face of multiple criminal investigations and fraud claims, and the client acted within its rights by opting to concentrate its resources and energy on these more serious legal issues. Although the result is “admittedly harsh” to those lawyers who toil away with the expectation of a windfall contingency, that’s just the nature of the game. "

Continue Reading A Turnabout: Client Malpractice?

Here is the well known blogger, Day on Torts, writing about legal malpractice causation and proximity.  Another way to put this [in a sports metaphor] "no harm, no foul."

"Causation in Legal Malpractice Cases
Negligence without causation is like a biscuit without country ham (or blackberry jam).

Now, I’m not so sure that juries pay as much attention to the concept as lawyers and judges, but causation is an element of every cause of action in the tort world.

This decision out of Michigan reminds us that causation must be proved in a legal malpractice case. The lawyer blew the deadline for filing a notice of appeal – clearly negligence – but was not found liable as a matter of law because the appeal was denied on the merits. Read the decision in McCabe vs. Miller & Associates, LLP, No. 275498 (MI. Ct. App. October 9, 2007) here. "

An attorney who admittedly commits legal malpractice, in a Michigan case, has his discipline upgrated.  The story:

"An Adrian attorney who admitted mishandling a client’s civil case was slapped with a 30-day suspension for failing to cooperate with a Michigan Bar Association investigation of a complaint filed by the client.

Under an order issued Sept. 11 by the Michigan Attorney Discipline Board, John D. Baker was suspended from practicing law from Wednesday through Nov. 9. The panel’s opinion pointed out that Baker made efforts to correct his error in failing to file a lawsuit in a traffic accident injury case, including a payment of his own funds to the client along with obtaining a $6,000 insurance settlement.

The mishandling of the case warranted only a reprimand, but the Attorney Discipline Board raised the punishment to a suspension “based upon respondent’s complete failure to cooperate with the grievance administrator’s investigation,” the panel’s opinion stated. "

For us, [possible] corruption in land deals in California always brings the memory of Chinatown.  Here is a story of a limestone mine whose proceeds were to fund a retirement account for former Kaiser Steel retirees.  The mine was vauled at more than $100 milliion, yet was sold by the trustees for $ 3.5 million.  Litigagion followed.  the details:

"Parts of a limestone mine meant to secure the futures of Kaiser Steel retirees appear to have been sold off for a fraction of their market value.

The Cushenbury Mine, which supplies the essential component of concrete to the booming construction trade, is thought to be worth hundreds of millions of dollars.

But a parcel expected to produce 80 million tons of high-quality limestone estimated to be worth more than $100 million allegedly was sold to Mitsubishi Cement Corp. in December 2000 for $3.15 million.

Three other parcels were sold to Mitsubishi Cement and another mining company, Specialty Mineral Inc., for a fraction of their value in 2001 and 2003, a lawsuit filed on behalf of the retirees on Sept. 30 alleges. "

In the suit against the two mining companies that bought the land, Redlands law firm Welebir & McCune also sues San Bernardino law firm Gresham Savage Nolan & Tilden.

It accuses two of the firm’s lawyers, M. William Tilden and Robert W. Ritter Jr., of legal malpractice, fraud and conflict of interest because their firm allegedly represented both the trust and Mitsubishi Cement in negotiating the land sale.

The firm’s legal counsel was unavailable for comment Friday, Gresham Savage spokesman Mark Ostoich said. "

Attorney sues for fees, and the reflex reaction is to couter-punch, or as it is put in pleadings, counter-claim.  No harm in defending oneself?  This NJ case illustrates the dangers.

CUYLER BURK, LLP, Plaintiff-Respondent,   vs. ROBERT M. SILVERMAN, ESQ., Defendant-Appellant. Argued: September 10, 2007 – Decided October 9, 2007: Before Judges Cuff, Lisa and Lihotz.  On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-135-03.

 "On January 13, 2003, Cuyler Burk filed a complaint to collect the fees incurred by defendant in the amount of $18,747.94. Defendant filed an answer to the complaint and a counterclaim in which he asserted a legal malpractice claim against plaintiff. On August 19, 2003, Cuyler Burk notified defendant’s attorney that it considered the counterclaim frivolous and that it would move for sanctions.

On August 20, 2004, two months after the deposition of his expert, defendant dismissed the counterclaim. Following the submission of a stipulation of dismissal with prejudice of plaintiff’s complaint, plaintiff filed a motion for sanctions pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8.

In a written opinion filed on December 22, 2005, Judge Harper held that the legal malpractice counterclaim was frivolous. The judge held that Cuyler Burk was a prevailing party because defendant withdrew his complaint after defendant’s expert changed his opinion during his deposition. In other words, "the withdrawal of the complaint was done to avoid anticipated defeat, and as such, it is not a voluntary dismissal, but instead an acknowledgement that the Plaintiff would prevail."

Judge Harper also found that the counterclaim was commenced in bad faith. He found that the evidence was undisputed that Cuyler Burk had made attempts to resolve the case on defendant’s behalf and that he dragged his feet frustrating the firm’s effort to expeditiously and favorably resolve the case. He characterized the counterclaim as a tactic to frustrate the firm’s ability to collect the fees owed to it by defendant. Judge Harper also found that defendant knew or should have known that the counterclaim was "without any reasonable basis in law." Furthermore, the judge found that defendant’s contention that plaintiff recommended that he not settle the disciplinary matter is "patently untrue." The judge also found that the affidavit of merit submitted by one attorney and the expert report submitted by another were founded on inadequate and incomplete facts.

Once Judge Harper ruled that Cuyler Burk was entitled to an award of fees and costs, it submitted an affidavit of services in which it sought fees and costs in excess of $105,000. On April 24, 2006, Judge Harper conducted a plenary hearing on the fee request at which Cuyler testified in support of the firm’s application ."