Calendar dismissals are a vivid demonstration of how a case goew wrong.  There are pre-note and post-note of issue instances.  Here is a well written article which discusses pre-note dismissals by William Greenberg

"Now two recent cases from the Appellate Division, Second Department may have lent some clarity. These cases – Travis v. Cuff, 28 AD3d 749, 814 NYS2d 610 (2nd Dept.) and Galati v. C. Raimondo & Sons Constr. Co. 35 AD3d 805, 828 NYS2d 136 2nd Dept 2006) – each squarely determine that the trial court can never use CPLR §3404 to dismiss a case as "abandoned" if it is in "pre-note of issue status."

But to understand Travis and Galati in context it is appropriate to quickly review the calendar control devices available to the Supreme Court. They are CPLR provisions §3126, §3216, §3404 and Uniform Rule 202.27 (22 NYCRR 202.27)."

 
"For the practitioner, the lesson is clear. Where a case is in "pre-note of issue" status – either due to vacature of a previously filed note of issue or because the note of issue has never been filed – the court cannot dismiss pursuant to §3404. Only Rule 202.27, where a party has failed to appear or not been ready to proceed, is a ground for dismissal unless, running afoul of §3216, a party has failed to file a note of issue pursuant to written court direction – directing the filing in not less than 90 days – or ignored a "90 day notice" served by an adversary. See Dergousova v. Long, 37 AD3d 645, 830 N.Y.S.2d 330 (2nd Dept. 2007). "

This blog blurb by Ken Shigley discusses the three-way conflict between defendant, its attorney and the carrier, in the context of choices and legal malpractice.

"Where the insurance company has refused to take advantage of opportunities to settle a claim within policy limits, the plaintiff wins a judgment for some multiple of the policy limits, and the insured is on the hook for the excess, the insurance defense lawyer should exercise great caution. If the plaintiff’s attorney asks for contact information to communicate directly with the insured defendant’s corporate or coverage counsel regarding the insured’s interests vis-a-vis the insurance company, the insurance defense lawyer should either facilitate that communication or report a potential malpractice claim to his own legal malpractice insurance company"

Daniel Wise at the NYLJ reports that two judges abruptly left the bench yesterday:

"Justice Resigns Amid Reported Probe

Supreme Court Justice Lawrence I. Horowitz (See Profile) abruptly resigned from the bench yesterday, according Ninth Judicial District Administrative Judge Francis A. Nicolai (See Profile). Justice Horowitz, 56, who has reportedly been under investigation for intervening in a friend’s traffic ticket, made his resignation effective as of today. His lawyer, Deborah Scalise, a specialist in professional discipline matters at Jones Garneau in White Plains, said the judge resigned for "personal reasons" and declined to elaborate. Justice Horowitz was appointed to an interim vacancy on the Westchester County Court in 2003, and elected to the Supreme Court in the Ninth District, which covers the five suburban counties north of New York City, later that year. For the past two years he was been sitting in Orange County. – Daniel Wise "

"Brooklyn Justice Howard A. Ruditzky (See Profile) left the bench on medical leave on June 8, Office of Court Administration spokesman David Bookstaver confirmed yesterday. Justice Ruditzky, 62, left on leave at his request, said Mr. Bookstaver, who declined to provide further details. The judge had been widely reported to have received immunity when he testified before a Brooklyn grand jury examining whether Democratic nominations for Supreme Court judgeships were for sale. According to several published reports, Justice Ruditzky confirmed for the grand jury that a supporter had paid more than $40,000 in cash and postage stamps to help him get a nomination in 2001. The Brooklyn District Attorney’s Office has not brought any criminal charges. Justice Ruditzky’s lawyer, Sheldon Eisenberger, did not respond to a request for comment. Justice Ruditzky, who was elected to the Civil Court in 1990, won the 2001 election for Supreme Court. – Daniel Wise "

A Staten Island judge rendered an interesting decision concerning loans to litigants in structured settlement cases, and perhaps during litigation.  Plaintiff  has a structured settlement coming to her, and needed court approval to convert it into legal fees for a custody dispute case.  Judge said no.

Case is interesting for two reasons:  first, how free are plaintiffs to determine their own economic destiny?  second, the court found the lender’s interest rate unreasonable.

Read the decision for details.

Yesterday we published a story about a legal malpractice and mediation which has been widely reported. Plaintiff claimed that the attorney negligently lowered a settlement demand, which damaged it.  Discovery of the mediation discussions was not permitted.  Today we have a comment from one of the attorneys:

"A comment from counsel for Wimsatt:

       Wimsatt never reduced the settlement demand. The contemporaneous emails confirm that. Plaintiff wanted to depose others at the mediation to ask what was said about that, and the defense sought a protective order to prevent mediation related discovery, since mediation confidentiality protects mediation related communications. The Superior Court Judge (our trial level court, but this is before trial) denied a protective order. The court of appeal held that the mediation related discovery could not take place, meaning that there could be no discovery about what the mediation briefs said or what the emails about those briefs said or what anybody said or did at the mediation, but that if there was just a general discussion well before the mediation about the case, discovery about that was not protected by the mediation privilege. Nobody moved to dismiss the case. However, the court of appeal did say that the effect of this ruling is that the plaintiff relinquished his rights to pursue his legal malpractice case. So justice will be done. The plaintiff had two attorneys at the mediation and knowingly and intelligently settled the case and collected his money, and then a few weeks later claimed he should have held out for more, and blamed his lawyer." by: George Stephan

Here from the Illinois Appellate Blog is a Insurance carrier versus their trial level attorney case.  Carrier lost a declaratory judgment coverage case, and now claims that the attorney failed to appeal. In the decision, based upon an automobile accident coverage issue in which the insurer claimed $ 25,000 of coverage, and ultimately paid $ 3 million in damages.  Read it for the Illinois Appellate niceties, and for the discussion of the attorney’s obligations.

This case, reported today is a dismissal of legal malpractice because the attorneys represented the company, and not the individual plaintiff shareholders.

"As a threshold matter, in order to establish a cause of action for legal malpractice, the plaintiff must demonstrate the existence of an attorney-client relationship (AG Capital Funding Partners, L.P. v. State Street Bank & Trust Co., 5 NY3d 582, 595 [2005]). A relationship of actual privity or one that closely resembles privity, is required (id.; Linden v. Moskowitz, 294 AD2d 114, 115 [1st Dept 2002], lv denied 99 NY2d 505 [2003]). The execution of a formal retainer agreement or the payment of a fee is not dispositive (Jane Street Co. v. Rosenberg & Estis, P.C., 192 AD2d 451, 451 [1st Dept], lv denied 82 NY2d 654 [1993]). Rather, courts typically consider the words and actions of the parties to ascertain the existence of such a relationship, and whether there was an explicit undertaking by the attorney to perform a specific task (Wei Cheng Chang v. Pi, 288 AD2d 378, 380 [2d Dept 2001], lv denied 99 NY2d 501 [2002]). Additionally, the plaintiff must allege that the attorney was aware that its services were being used for a specific purpose, that the plaintiff relied upon those services, and that the attorney engaged in some conduct evincing an understanding of the plaintiff’s reliance (Allianz Underwriters Ins. Co., 13 AD3d at 175). A plaintiff’s subjective belief alone as to the existence of such a relationship is not sufficient (Weadick v. Herlihy, 16 AD3d 223, 224 [1st Dept], lv denied 5 NY3d 707 [2005]).

The complaint fails to plead Facts establishing that an attorney-client relationship existed between Topor, individually, and the Counsel Defendants. In the complaint, Topor repeatedly alleges that the Counsel Defendants represented Flatiron and the single-purpose entities that Flatiron created, including 119th Street LLC, in order to acquire properties (see e.g. Complaint at ¶36). Otherwise, Topor does not allege any Facts, either in the form of words or actions, taken by Topor and the Counsel Defendants establishing that there was an explicit undertaking to perform a specific legal task on behalf of Topor personally (Wei Cheng Chang, 288 AD2d at 380), or that the Counsel Defendants knew that Topor was personally relying on their services (Allianz Underwriters Ins. Co., 13 AD3d at 175). "

"As a threshold matter, in order to establish a cause of action for legal malpractice, the plaintiff must demonstrate the existence of an attorney-client relationship (AG Capital Funding Partners, L.P. v. State Street Bank & Trust Co., 5 NY3d 582, 595 [2005]). A relationship of actual privity or one that closely resembles privity, is required (id.; Linden v. Moskowitz, 294 AD2d 114, 115 [1st Dept 2002], lv denied 99 NY2d 505 [2003]). The execution of a formal retainer agreement or the payment of a fee is not dispositive (Jane Street Co. v. Rosenberg & Estis, P.C., 192 AD2d 451, 451 [1st Dept], lv denied 82 NY2d 654 [1993]). Rather, courts typically consider the words and actions of the parties to ascertain the existence of such a relationship, and whether there was an explicit undertaking by the attorney to perform a specific task (Wei Cheng Chang v. Pi, 288 AD2d 378, 380 [2d Dept 2001], lv denied 99 NY2d 501 [2002]). Additionally, the plaintiff must allege that the attorney was aware that its services were being used for a specific purpose, that the plaintiff relied upon those services, and that the attorney engaged in some conduct evincing an understanding of the plaintiff’s reliance (Allianz Underwriters Ins. Co., 13 AD3d at 175). A plaintiff’s subjective belief alone as to the existence of such a relationship is not sufficient (Weadick v. Herlihy, 16 AD3d 223, 224 [1st Dept], lv denied 5 NY3d 707 [2005]).

The complaint fails to plead Facts establishing that an attorney-client relationship existed between Topor, individually, and the Counsel Defendants. In the complaint, Topor repeatedly alleges that the Counsel Defendants represented Flatiron and the single-purpose entities that Flatiron created, including 119th Street LLC, in order to acquire properties (see e.g. Complaint at ¶36). Otherwise, Topor does not allege any Facts, either in the form of words or actions, taken by Topor and the Counsel Defendants establishing that there was an explicit undertaking to perform a specific legal task on behalf of Topor personally (Wei Cheng Chang, 288 AD2d at 380), or that the Counsel Defendants knew that Topor was personally relying on their services (Allianz Underwriters Ins. Co., 13 AD3d at 175). "

The Court of Appeals has found in Rivera v Anilesh ,2007 NY Slip Op 05134 , Decided on June 12,  2007 , that a dentist’s habit [his regular procedure] of injecting anesthetic, is admissible to show lack of negligence.

"In this malpractice action by a patient against her dentist, we are asked whether the dentist’s routine procedure for administering an anesthetic injection is admissible as habit evidence supporting an inference that the same procedure was used when treating the patient. Based on the record before us, we conclude that the habit and routine practice testimony is [*2]admissible."

"In Halloran v Virginia Chems. (41 NY2d 386, 391 [1977]), we explained that "evidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions" because "one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again." The applicability of this doctrine is limited to cases where the proof demonstrates "a deliberate and repetitive practice" by a person "in complete control of the circumstances" (id. at 392) as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances" (id. at 389). If these conditions are satisfied, "a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence . . . on a particular occasion" (id. at 392). "

The case goes on, and makes for good reading.  Will this apply to Legal Malpractice too?