Aaglane v Sami 2023 NY Slip Op 30636(U) March 3, 2023 Supreme Court, New York County Docket Number: Index No. 151262/2019 Judge: Mary V. Rosado is an interesting variant on the more usual case where Plaintiff is being sued for fees and brings a legal malpractice case against the attorney. In that setting, collateral estoppel of res judicata issues arise. Here, where the attorney seeks to join a case against a different party for legal fees the Court denies the request.

“This case was commenced on February 5, 2019 and arises out of Defendant’s alleged
malpractice during the course of her representation of Plaintiff in her divorce action against nonparty Khitri (NYSCEF Doc. 1). On January 8, 2021, Defendant moved for summary judgment dismissing Plaintiffs Complaint (NYSCEF Doc. 9 or “Mot. Seq. 001 “) Plaintiff cross-moved seeking to compel Defendant to respond to certain discovery demands (NYSCEF Doc. 11 ).”

“Defendant makes the instant motion pursuant to CPLR § 602(a) (NYSCEF Docs. 82-83).
CPLR § 602(a) provides “when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue … and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Where cases involve different facts, witnesses, claims, injuries, and defendants “individual issues predominate … so as to preclude the direction of a joint trial” (Gillard v Reid, 145 AD3d 446 [1st Dept 2016] quoting Abbondandolo v Hitzig, 282 AD2d 224, 225 [1st Dept 200 I]). Moreover, where actions are at different procedural postures a motion for a joint trial should not be granted (Maurer v Maurer, 96 AD3d 417,417 [1st Dept 2012]). Further, where two
actions involve different issues and disparate legal theories, it has been held there is a risk of confusing and “rendering the litigation unwieldy” (Ka/adze v Ocean Park Acquisition, L.P., 203 AD3d 1151 [2d Dept 2022] citing Gillard at 446).

The instant action is a legal malpractice action by Plaintiff against Defendant, her former lawyer in a matrimonial action (NYSCEF Doc. 1). The factual issues have to do with Defendant’s alleged abandonment of Plaintiff’s case; alleged loss of critical documents belonging to Plaintiff, Defendant’s alleged breach of confidentiality, Defendant’s prolonged absence from the country on the eve of trial, Defendant’s alleged failure to investigate key assets in the matrimonial action, Defendant’s alleged misappropriation of client funds, Defendant’s alleged failure to provide Plaintiff with a statement of client’s rights and responsibilities, and Defendant’s alleged lack of
expertise and experience with contested divorce cases (NYSCEF Doc. 1 at 116-42). On the other hand, the case Defendant seeks to join for trial involves $5,000 in allegedly unpaid attorneys’ fees which Khitri allegedly agreed to pay Defendant in an open court stipulation in the matrimonial action.

Here, the legal theories and issues are wholly separate. Moreover, the only party in
common in the two actions is Defendant. Khitri is not a party to this action, and Plaintiff is not a party to the Civil Court action. Further, the Civil Court action is far more simple and seeks damages in a far lesser sum than the instant legal malpractice action, and for that reason is in Civil Court which is the designated forum for expedited relief in disputes over relatively minor sums. Here, the parties have made multiple discovery motions and it appears depositions have not even begun. The parties have failed to enter into any discovery orders since their preliminary conference order dated November 18, 2021. As such, the procedural postures of the two actions are completely
different. These factors militate towards denying Defendant’s motion.”

Golub v Shalik Morris & Co., LLP 2022 NY Slip Op 03888 [206 AD3d 799] June 15, 2022
Appellate Division, Second Department is a pair of cases claiming accounting fees and accounting malpractice. Neither side could demonstrate the lack of material questions of fact.

“In May 2016, Aaron Richard Golub commenced an action in the Supreme Court, New York County, against the accounting firm of Shalik, Morris & Company, LLP (hereinafter the Shalik firm), seeking, among other things, the return of his accounting records and files (hereinafter action No. 1). The Shalik firm answered and interposed counterclaims against Golub sounding in breach of contract and quantum meruit. Golub served a reply asserting affirmative defenses alleging, inter alia, accounting malpractice.

In June 2016, the Shalik firm commenced an action in the Supreme Court, Nassau County, against Golub’s companies, Aaron Richard Golub, Esquire, P.C., and Sunset Boulevard Films, Ltd. (hereinafter together the Golub companies), alleging causes of action sounding in breach of contract and quantum meruit (hereinafter action No. 2). The Golub companies answered and asserted affirmative defenses alleging, among other things, accounting malpractice. The counterclaims in action No. 1 were severed and were later joined for trial with action No. 2 in the Supreme Court, Nassau County.

[*2] In June 2019, Golub and the Golub companies moved in both actions, in effect, for summary judgment (1) dismissing the Shalik firm’s causes of action and counterclaims asserted against them, and (2) on their affirmative defenses alleging accounting malpractice. The Supreme Court denied the motion, and Golub and the Golub companies appeal. We affirm.

Golub and the Golub companies failed to establish their prima facie entitlement to judgment as a matter of law dismissing the breach of contract and quantum meruit causes of action and counterclaims to recover payment for accounting services rendered. The evidence submitted in support of their motion failed to eliminate triable issues of fact as to whether the parties had agreed upon a flat fee arrangement as contended by Golub and the Golub companies (see 2978 Gas Corp. v United Fleet, Inc., 197 AD3d 1138, 1139 [2021]; see generally Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482 [1989]). Additionally, they failed to establish, prima facie, their entitlement to judgment as a matter of law on their affirmative defenses alleging accounting malpractice (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Alskom Realty, LLC v Baranik, 189 AD3d 745 [2020]). Accordingly, Golub and the Golub companies’ motion was properly denied without regard to the sufficiency of the Shalik firm’s papers in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; 2978 Gas Corp. v United Fleet, Inc., 197 AD3d at 1140). Miller, J.P., Maltese, Zayas and Ford, JJ., concur.”

Saporito v Branda 2023 NY Slip Op 00968 Decided on February 21, 2023 Appellate Division, First Department is an example of the unsuccessful use of Judiciary Law 487 claims. Courts are quick to dismiss these claims, which are not “lightly given” and rarely successful. Here the claimed deceit was an attorney telling the court that the mother in a custody dispute was “unemployed” when the mother was being offered a job as the attorneys personal assistant.

“Defendant contends that the mother did not begin working for her until September 2, 2014 and that the court did not rely on this statement because it maintained the 2-2-3 parenting schedule even after it learned of the mother’s employment.

The first cause of action under Judiciary Law § 487 was properly dismissed, as plaintiff failed to plead any cognizable damages proximately caused by the alleged false statement made by defendant to the court (see Amalfitano v Rosenberg, 12 NY3d 8, 15 [2009]). The employment status of the mother of plaintiff’s child was not determinative of the court’s modification of the visitation schedule. In addition, the alleged single act of deceit was not “sufficiently egregious” to support the claim (see Strumwasser v Zeiderman, 102 AD3d 630, 631 [1st Dept 2013]). Moreover, the claim is barred as a collateral attack on orders issued in the underlying Family Court proceeding (see Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 751-752 [2d Dept 2009]).”

Mid City Elec. Corp. v Peckar & Abramson 2023 NY Slip Op 01085 Decided on March 1, 2023 Appellate Division, Second Department cleanly lays out the most unique issue that arises in legal malpractice (and not in other) settings: “But for” the negligence, would there have been a better result? This is the “case within a case” legal malpractice issue. Here, the question is whether a missed appeal would have been won.

“The plaintiffs, Mid City Electrical Corporation (hereinafter Mid City) and its owners, Terric McFarlin and John J. Holzer, commenced this action, inter alia, to recover damages for legal malpractice against, among others, the defendants Peckar & Abramson, Charles E. Williams III, and Christopher Bletsch (hereinafter collectively the defendants). The plaintiffs alleged that by letter [*2]dated September 18, 2015, the New York State Department of Transportation proposed to terminate the status of Mid City as a disadvantaged business enterprise (hereinafter DBE). Thereafter, Mid City retained the services of the defendants to litigate a challenge to that proposal. After unsuccessfully appealing to the New York State Department of Transportation directly, the defendants commenced a proceeding pursuant to CPLR article 78 on behalf of Mid City to stay the termination of its status as a DBE. That proceeding was dismissed on the ground that Mid City failed to file an appeal with the United States Department of Transportation. The order and judgment dismissing that proceeding was affirmed by the Appellate Division, First Department (see Matter of Mid City Elec. Corp. v Metropolitan Transp. Auth., 148 AD3d 497, 498).”

“With respect to the legal malpractice cause of action insofar as asserted by Mid City against the defendants, the complaint was required to contain factual information showing that the attorneys’ actions, inter alia, proximately caused Mid City to sustain actual and ascertainable damages (see Gorbatov v Tsirelman, 155 AD3d 836, 838). “‘An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence, the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages'” (Nill v Schneider, 173 AD3d 753, 755, quoting Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Denisco v Uysal, 195 AD3d 989, 991 [internal quotation marks omitted]).

Here, even accepting the facts alleged in the complaint as true, and according Mid City the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87), the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome regarding the termination of Mid City’s status as a DBE (see Rudovic v Law Off. of Timothy A. Green, 200 AD3d at 815; Denisco [*3]v Uysal, 195 AD3d at 991; Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542, 542). The allegation that Mid City lost the opportunity to pursue an administrative appeal, without any indication that the appeal would be successful, is insufficient to state a claim (see Coccia v Liotti, 70 AD3d 747, 754). Similarly, the allegation that Mid City would have been recertified as a DBE had the defendants requested a hearing, rather than having filed a written response to the initial letter proposing termination of its status as a DBE, is speculative and conclusory (see Densico v Uysal, 195 AD3d at 991).

Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the legal malpractice cause of action insofar as asserted by McFarlin and Holzer against them, but should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the legal malpractice cause of action insofar as asserted by Mid City against them.”

In the Matter of Kehinde Oluwaranti Jobi, Motion No. Case No. 2023-00084
2008-00178 is the decision which permits the attorney who resigned in the face of legal malpractice claims and a disciplinary committee investigation in 1995 to be reinstated if payments on two legal malpractice judgments continue.

“And an order of this Court having been entered on August 2, 2022 denying
respondent Attorney Grievance Committee’s application for an order confirming the
Referee’s report recommending that reinstatement be denied, and granting petitioner’s
cross motion for an order disaffirming the Referee’s report, and ordering that petitioner
be reinstated to the practice of law in the State of New York upon her providing the
Court and the Committee with proof that she has entered into payment plans with
respect to the two outstanding legal malpractice judgments against her and the default
judgment against her obtained by the S. Family, and directing that thereafter, petitioner
provide the Committee with a progress report, every six months, regarding the status of her efforts with respect to the payment plans (Motion Nos. 2022-02132 and 2022-
02428), And petitioner, upon her submission of an affidavit of compliance with this
Court’s August 2, 2022 order, sworn to on December 29, 2022, having moved this Court
for an order pursuant to 22 NYCRR 1240.16(a) and (b) reinstating her as an attorney
and counselor-at-law in the State of New York,
And the Committee, by Jorge Dopico, its Chief Attorney (Remi Shea, of counsel) having submitted an affirmation stating, inter alia, that it does not oppose petitioner’s motion for reinstatement,

Now, upon reading and filing the papers with respect to the motion, and due
deliberation having been had thereon, it is unanimously,

ORDERED that petitioner’s motion for reinstatement is granted, and petitioner Kehinde Oluwaranti Jobi is reinstated as an attorney and counselor-at-law in the State
of New York, effective the date hereof, upon the conditions that she continue to provide
the Committee with the six-month progress reports required by the August 2, 2022
order, until completion of the payment plans, and that she immediately register with
and pay to the Office of Court Administration any applicable registration fees in
compliance with Judiciary Law § 468-a.”

After reading the first few lines of this case, Hagans v Dell 2023 NY Slip Op 00846 Decided on February 15, 2023 Appellate Division, Second Department, we expected to see a discussion of notice or storm timing in the snow and ice personal injury world. But, no. It deals with individual liability in LLPs.

“Dell contends that he is immunized from individual liability under Partnership Law § 26(b). “Partnership Law § 26(b) . . . immunizes from individual liability any partner in a partnership registered as a limited liability partnership who did not commit the underlying wrongful act, except to the extent that Partnership Law § 26(c) imposes liability on that partner where he or she directly supervised the person who committed the wrongful act” (Salazar v Sacco & Fillas, LLP, 114 AD3d 745, 747; see Ederer v Gursky, 9 NY3d 514, 523). Here, Dell established his prima facie entitlement to judgment as a matter of law by submitting the transcript of his deposition testimony and his affidavit demonstrating that he was not involved in handling the plaintiff’s personal injury action and did not supervise the attorney who was responsible.

However, in opposition, the plaintiff raised a triable issue of fact regarding the extent of Dell’s involvement in her personal injury action. The plaintiff submitted documents showing that attorneys at the law firm had consulted with Dell about strategies in responding to motions and seeking a default judgment. A stipulation of discontinuance as to certain defendants in the personal injury action was signed by Dell. In addition, the record reflects that Dell met with the plaintiff to discuss her case at an initial intake meeting, filled out a client fact sheet, and signed the retainer agreement. Under the circumstances, there is a triable issue of fact as to whether Dell was involved in handling the plaintiff’s personal injury action and, as such, was involved in the underlying allegedly wrongful act (see Partnership Law § 26[c]; Swift Funding, LLC v Isacc, 144 AD3d 471, 472).”

RTW Retailwinds, Inc. v Colucci & Umans 2023 NY Slip Op 00831 Decided on February 14, 2023 Appellate Division, First Department represents a rare instance of the Appellate Division examining all of the reasons why a legal malpractice case is dismissed early on in a case. There were three or more acts by the defendant attorneys which were pled, with one claim remaining in the case after appeal.

“Order, Supreme Court, New York County (Joel M. Cohen, J.), entered on or about August 13, 2021, which, to the extent appealed from as limited by the briefs, granted defendants’ motions to dismiss the legal malpractice claim as against them, unanimously modified, on the law and the facts, to the extent of denying the motions as to plaintiffs’ claim based on defendants’ failure to produce discovery and present evidence at trial relevant to a “crowded field” defense, and the malpractice claim reinstated to that extent only, and otherwise affirmed, without costs.

Plaintiffs commenced this legal malpractice action on or about June 1, 2020 against defendant law firms and some of the individual attorneys who had represented plaintiffs before and/or during a federal copyright infringement action that resulted in a judgment against plaintiffs. Plaintiffs appeal from Supreme Court’s order entered on or about August 13, 2021, to the extent that it granted defendants’ motions to dismiss the legal malpractice cause of action against all defendants.”

“Third, documentary evidence establishes that defendants’ decision not to call witnesses, including plaintiffs’ employees to whom defendants had referred in opening statements, was a reasonable strategic decision and not malpractice (see Hand v Silberman, 15 AD3d 167, 167 [1st Dept 2005], lv denied 5 NY3d 707 [2005]). The supporting evidence includes defendants’ written legal opinion, delivered to plaintiffs’ in-house counsel just prior to the close of plaintiff’s case in the copyright infringement action, which examined the pros and cons of calling the witnesses. That correspondence advised that the risks of putting on plaintiffs’ witnesses included likely credibility issues and that evidence indicating plaintiffs’ “bad faith” use of the NY&C VELOCITY mark, which was not consistent with defendants’ original advice, might be brought out at trial. Moreover, plaintiffs’ claim that the outcome of the trial might have been favorable if defendants had presented witnesses is entirely speculative.

However, contrary to the motion court’s conclusions, and viewing the evidence in the light most favorable to plaintiffs, the documentary evidence submitted by defendants did not utterly refute plaintiffs‘ allegations that defendants failed to produce discovery relevant to a “crowded field” affirmative defense and that this led to the exclusion of certain evidence at trial. Moreover, defendants failed to present any evidence supportive of plaintiffs’ “crowded field” defense (see e.g. RiseandShine Corp. v PepsiCo, Inc., 41 F4th 112, 123 [2d Cir 2022][“[I]n a crowded field of similar marks, each member of the crowd . . . is relatively weak in its ability to prevent use by others in a crowd”] [internal quotation marks omitted]). Accordingly, defendants have not conclusively established a defense to these claims as a matter of law (see CPLR 3211[a][1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314[*3], 326 [2002]). Therefore, the motion court should not have dismissed these claims. Contrary to defendants’ contention, at this early stage of the action, it is not speculative for plaintiffs to allege that, but for defendants’ negligence in this regard, the jury would have returned a favorable verdict, particularly where plaintiff had identified specific acts and omissions by defendants that resulted in documents relevant to a “crowded field” defense not being placed before the jury. The documentary evidence proffered by defendants also did not otherwise establish, as a matter of law, that the allegedly negligent acts or omissions of defendants in this regard were harmless.”

In this unusual case, Zanani v Scott Seidler Family Trust 2023 NY Slip Op 00836
Decided on February 14, 2023 Appellate Division, First Department, the attorney brought the claim for legal fees as a special proceedings, seeing a declaratory judgment that he was owed money. Supreme Court analyzed his claim, and dismissed it in favor of a regular plenary proceeding seeking a breach of contract or quantum meruit claim.

Dismissal was improper. “Supreme Court should have converted the special proceeding into a plenary action rather than dismissing the petition, as CPLR 103(c) “prohibits dismissal of [a] proceeding solely on the ground that it was not brought in the proper form” (Matter of Greene v. Finley, Kumble, Wagner, Heine & Underberg, 88 AD2d 547, 548 [1st Dept 1982]; see Matter of Jacob D. Fuchsberg Law Firm v Danzig, 248 AD2d 178, 179 [1st Dept 1998]).

We note that petitioner withdraws his claims except for those asserting breach of contract and account stated. Nonetheless, we decline petitioner’s request to construe the petition and answer as summary judgment papers and to summarily adjudicate his remaining claims at this stage. When a special proceeding is converted into a plenary action in accordance with CPLR 103(c), the petition is deemed a complaint, not a motion for summary judgment (see Matter of David H. Berg & Assoc. v Weksler, 193 AD3d 612, 613 [1st Dept 2021]). The record may present material issues of fact as to whether petitioner is entitled to recover under either remaining cause of action, or whether he committed legal malpractice, and these issues are for the motion court to address in the first instance (see Commissioner of the State Ins. Fund v Weissman, 90 AD3d 417, 417-418 [1st Dept 2011]; Nationwide Mut. Ins. Co. v Hausen, 143 AD2d 577, 581 [1st Dept 1988]).”