Menkes v Greenwald  2022 NY Slip Op 32882(U)  August 24, 2022 Supreme Court, New York County  Docket Number: Index No. 159685/2021 Judge: David B. Cohen is an illustration of how the continuous representation period can end when one of the legs collapses.  Specifically the legs to continuous representation are a continuing relationship of trust and confidence, the shared understanding of the need for further legal work, and actual further legal work.

In this case, there was a lapse in the continuing relationship of trust and confidence.

“Generally, a cause of action for legal malpractice accrues on the date that the alleged malpractice was committed, and a plaintiff has three years to commence such action (see CPLR
214 [6]; Glamm v Allen, 57 NY2d 87, 93 [1982]). That three-year statute of limitations can also be tolled under the doctrine of continuous representation (see Glamm, 57 NY2d at 93-95).
However, tolling resulting from continuous representation ends “once the client is informed or otherwise put on notice of the attorney’s withdrawal from representation” (Shumsky v Eisenstein, 96 NY2d 164, 170-171 [2001]; accord RJR Mech. Inc. v Ruvoldt, 170 AD3d 515,515 [1st Dept 2019]), such as when an attorney provides a client with all of that client’s files (see Marzario v Snitow Kanfer Holzer & Millus, LLP, 178 AD3d 527, 528 [1st Dept 2019]).

In her complaint, plaintiff does not provide an exact date of defendants’ alleged malpractice (Doc No. 31 at 3-9). However, in support of their motion, defendants submit emails
between themselves and plaintiff discussing the representation (Doc Nos. 44-45). In a May 2016 email, defendants stated that they were “preclude[d]” from further representing plaintiff because of her threats to sue defendants for legal malpractice; and in an email from August 23, 2016, defendants stated that they had provided plaintiff with all of her files (Doc Nos. 44-45). Even under the doctrine of continuous representation, and giving plaintiff the benefit of every possible inference, the relationship between the parties ended, and the limitations period began to run, on August 23, 2016 (see Marzario, 178 AD3d at 528; Riley v Segan, Nemerov & Singer, P.C., 82 AD3d 572, 572-573 [1st Dept 2011]). Therefore, plaintiff was required to commence an action by August 23, 2019 (see CPLR 214 [6]). Since plaintiff did not commence the instant action until October 25, 2021 (Doc No. 1 at 13), her legal malpractice claim is barred by the statute of limitations and must be dismissed (see Riley, 82 AD3d at 573). “

As if a textbook discussing many of the less obvious hurdles for a legal malpractice claimant, Brooks v Baker & Hostelter, LLP  2022 NY Slip Op 32871(U)  August 23, 2022  Supreme Court, New York County  Docket Number: Index No. 655754/2021  Judge: Arlene P. Bluth defines and sets forth the law on issues of standing, commencement of the suit, actual innocence in a claim against a criminal defense attorney and the acts of subsequent counsel.

“As an initial matter, the Court finds that plaintiff lacked capacity to bring this lawsuit at the time the complaint was filed. He admitted in opposition that he petitioned the probate court in Florida on July 12, 2022 to reopen the estate (it was previously closed) and for his reappointment as personal representative. This case was filed in September 2021 and so he did not have capacity to sue on behalf of his brother’s estate when this case was commenced.

Even if the Court were to overlook plaintiff’s lack of capacity to sue, the fact is that plaintiff did not state a valid cause of action for legal malpractice. “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 plaintiff to sustain actual and ascertainable damages To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007] [internal quotations and citations omitted]).

“[A]n individual convicted of a criminal offense must be able to assert his innocence or a colorable claim of innocence before he can pursue a claim against his attorney for legal
malpractice arising out of the criminal proceeding” (Britt v Legal Aid Soc., Inc., 95 NY2d 443, 445, 718 NYS2d 264 [2000]).

Here, it is undisputed that Mr. Brooks pled guilty to various tax charges and was sentenced to years in prison. That the tax charges were severed does not change the fact that
they were all part of the same purportedly insufficient indictment about which plaintiff complains. Moreover, it is undisputed that defendants were representing Mr. Brooks during a
time period when all the charges (both tax and non-tax) were included in the same indictment.

Plaintiff’s attempt to show that Mr. Brooks would not have been imprisoned if defendants had raised the issue about the defective indictment is mere speculation. This claim relies on the suggestion that, somehow, Mr. Brooks would have convinced a subsequent grand jury not to indict him. Of course, that argument fails because he pled guilty to the tax charges. It is also critical to point out that any jurisdictional defect was rendered moot when the government empaneled a new grand jury that returned a second superseding indictment containing the exact same charges against Mr. Brooks. And the courts reviewing the issue noted that any prejudice was overcome.

And, as defendants point out, Mr. Brooks hired many attorneys throughout the course of the U.S. Attorney’s investigation into his criminal conduct and defendants were long gone by the time the actual criminal trial started or when Mr. Brooks pled guilty. These other attorneys had ample opportunity to raise any number of issues on Mr. Brooks’ behalf. And so even if there was some malpractice, successor counsel had a chance to address it (Davis v Cohen & Gresser, LLP, 160 AD3d 484, 487, 74 NYS3d 534 [1st Dept 2018] [dismissing a legal malpractice claim where a successor counsel had sufficient time to protect plaintiff’s interests and failed to do so]).

Finally, the Court finds that the instant matter is time-barred. The Second Circuit’s decision vacating his conviction was issued on September 20, 2017 (see United States v Brooks,
872 F3d 78, 96 [2d Cir 2017]) and this case was not commenced until September 2021. “

Kaufman v Boies Schiller Flexner LLP2022 NY Slip Op 32743(U)  August 15, 2022 Supreme Court, New York County  Docket Number: Index No. 154149/2018  Judge: James d’Auguste is the very fraught story of a massively fought matrimonial action.  It seems that millions were spent on litigation.  The martial estate must have been very worthwhile.  This case discusses two legal malpractice issues:  excessive billing and violation of Judiciary Law § 487.  In this blog, we will review the JL § 487 claims.

“Plaintiff has renumbered the Judiciary Law § 487 from the second cause of action in the original complaint to the to the seventh cause of action in the PAC.3 An attorney is liable for a
violation of Judiciary Law § 487 if he or she “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the Court or any party; or … [w]ilfully  delays his client’s suit with a view to his own gain.” A cause of action under the statute “requires a showing of ‘egregious conduct or a chronic and extreme pattern of behavior’ on the part of the defendant attorneys that caused damages” (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610,615 [1st Dept 2015], Iv denied 28 NY3d 903 [2016] [citation omitted]). Allegations of deceit or the intent to deceive must be pled with particularity (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2d Dept 2018], affd 35 NY3d 173 [2020]; Facebook, Inc., 134 AD3d  at 615 [ dismissing a Judiciary Law § 487 claim where the allegations of sci enter were conclusory and were not supported by specific facts]).

The PAC alleges that BSF and Kaplan intentionally deceived plaintiff into signing the January 17, 2013, preliminary conference order/stipulation in which she relinquished her rights
to various personal and marital property, and which directed her ex-husband, Thomas Kaufman (Kaufman), to pay her $2 million in cash and/or securities (NYSCEF Doc. No. 203, ,r,r 416-419 at 449 [Ex 11 ]). BSF and Kaplan allegedly colluded to obtain an all-cash payment instead of stock so they could bill plaintiff for their own personal gain (id., ,r,r 420-421 ). BSF and B&K are alleged to have intentionally prolonged the action by failing to re-file an order to show cause for pendente lite relief and discovery (id., ,r,r 423-427), with BSF concealing its wrongdoing by refusing to provide an accounting of its services (id., ,r,r 428-431 ), and by refusing to proceed with mediation even though CM had advised the Court of his intention to mediate (id., ,r,r 435- 437). After cancelling the mediation, BSF and B&K billed plaintiff an additional $892,023.18 (id., ,r 442). Kaplan purportedly defamed plaintiffs parenting skills in an October 15, 2014, email to Joan Salwen (Salwen), the attorney representing her youngest daughter, which led her daughter to join Kaufman in Westchester (id., ,r,r 249-252 and 450). Defendants allegedly undermined plaintiffs custodial rights so she and Kaufman would be forced to sell the marital home, the proceeds of which could be used to pay defendants’ fees (id., ,r,r 451-452). BSF also intentionally deceived the Court and plaintiff on Uno’s unauthorized practice oflaw (id., ,r,r 461 and 463). It is claimed that Kaplan and BSF were aware that plaintiff suffers from ADHD dyslexia and a cognitive auditory disability and required a written copy of the settlement and “time to read, process and digest the written terms in order … to understand [them]” (id., ,i,r 265- 268). The PAC alleges that the settlement terms, though, “had been drastically changed from the original letter Kaplan sent Plaintiff’ (id, ,r 269). The PAC further alleges that when plaintiff expressed her reservations about the settlement to Kaplan and CM, and Kaplan, in tum “told CM[ ] that Plaintiff did not understand the terms of the Settlement” (id, ,r,i 276 and 282). It is alleged that “CM[ ] dismissed this concern, stating to Kaplan that if Plaintiff did not accept the Settlement that was being offered, she would never get out of the courtroom and Defendants would be wrapped up litigating this case forever” (id, ,i,r 277 and 283). Plaintiff now claims defendants coerced her into entering into the settlement with Kaufman even though they knewshe did not understand its terms (id., ,r 287).

These allegations fail to remedy the deficiencies in the original complaint regarding the element of intentional deceit (see Lavelle-Tomko v Aswad & Ingraham, 191 AD3d 1142, 1147
[3d Dept 2021] [ denying a motion to amend a complaint to plead a cause of action under Judiciary Law § 487 where the proposed amendment failed to plead facts tending to prove the attorney’s intent to deceive]; Genger v Genger, 135 AD3d 454,454 [1st Dept 2016], Iv denied 27 NY3d 912 [2016] [reasoning that there was no basis to rep lead where the plaintiffs papers did not show that plaintiff would be able to state a viable cause of action]). Plaintiff liberally employs words or phrases such as “intentionally deceived” or “intentionally misled” or “deceitfully” throughout the PAC, but such catch phrases are too conclusory to plead intent with particularity. Nor does the PAC plead any specific facts from which deceit or the intent to deceive may be inferred (see Ehrenkranz v 58 MHR, LLC, 159 AD3d 872, 872 [2d Dept 2018]). More importantly, several of the purportedly deceitful acts -the defective order to show cause, a cancelled mediation, Kaplan’s allegedly defamatory email, Uno’s participation in the action, and the settlement – were addressed previously in the April Order, though now, plaintiff buttresses the allegations with additional documents. The Court transcripts, emails and other documents, however, are insufficient to plead the element of scienter with particularity or evince an egregious or chronic pattern of behavior.

As stated in the April Order, the Court declined to sign the order to show cause because the motion had been filed four days before a trial ready conference and because defendants failed to request a pre-motion conference (NYSCEF Doc. No. 134 at 12). In declining to sign, the Court (Ecker, J.) also determined the motion “would be held in abeyance” so the parties could appear for a pre-motion conference (NYSCEF Doc. No. 203 at 452 [Ex 13)). The Court transcripts show that Kaplan and CM repeatedly raised the issue of outstanding discovery with the court-attorney referee and with the Court after the Court declined to sign the order to show cause (NYSCEF Doc. No. 203 at 458-459 [Ex 14]; NYSCEF Doc. No. 203 at 510 [Ex 15)). Thus, the documents do not support the claim that defendants willfully delayed plaintiffs suit for their own gain (see Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d 591,593 [2d Dept 2012], iv denied 19 NY3d 801 [2012] [granting dismissal of a Judiciary Law § 487 (2) cause of action because the “allegation that the defendants ‘willfully delayed [her] recovery with a view to their own ends and benefit’ is a bare legal conclusion”]).

Plaintiff complains that defendants cancelled mediation so they could continue to bill for their services. But, as noted in the April Order, BSF objected to the tactics employed by
Kaufman’s attorney to unilaterally proceed with mediation without furnishing certain discovery (NYSCEF Doc. No. 134 at 12-13). The correspondence regarding the proposed mediation submitted with the PAC fails to reflect an intent to deceive on the part of defendants. The emails show that defendants and Kaufman’s counsel never agreed on a specific mediator (NYSCEF Doc. No. 203 at 978 [Ex 26]). When Kaufman’s counsel executed a retainer with a mediator and paid a $10,000 fee, Kaplan advised that plaintiff “never agreed to start mediation with Mr. Berman. [S]orry for the confusion. Husband jumped the gun” (id. at 980). ”

“As for the settlement, plaintiff had previously argued that she did not understand the agreement and that Kaplan and BSF were aware that she did not understand it (NYSCEF Doc.
No. 134 at 16). As explained in the April Order, plaintiffs allocution defeats any claim that she misunderstood its terms, and therefore, defendants’ actions could not have caused her damages (see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P. C., 82 AD3d 652, 652 [1st Dept 2011] [granting dismissal where the complaint failed to plead that the attorneys’ actions caused the plaintiff’s damages]). Moreover, as noted in the prior order, another Justice of this Court had already denied plaintiffs attempt to set aside the settlement based on her lack of understanding of its terms (NYSCEF Doc. No. 179, decision and order dated August 14, 2019, in Coplan v Kaufman, Sup Ct, NY County, index No. 152865/2017).
As for the alleged misconduct concerning the preliminary conference stipulation/order dated January 17, 2013, a single act of deceit is not enough to trigger a Judiciary Law§ 487
violation (Strumwasser v Zeiderman, 102 AD3d 630,631 [1st Dept 2013]).

Accordingly, leave to replead the cause of action under Judiciary Law§ 487 is denied.”

In Silverman v Eccleston Law, LLC   2022 NY Slip Op 04991  Decided on August 17, 2022 Appellate Division, Second Department, Plaintiff, an attorney, took a loan from his employer, which he agreed to repay if he resigned.  When he resigned, he hired a law firm to negotiate the repayment.  Eventually, plaintiff had to repay the loan.  He then sued for malpractice.  The claim failed.  From reading the decision it appears that the main departure claimed was that his attorneys did not tell him that there was little likelihood of avoiding repayment.

“The plaintiff, an attorney licensed to practice law in New York and a certified financial planner, received a loan from his former employer, Ameriprise Financial Services, Inc. (hereinafter Ameriprise), in the amount of $280,190, for which he executed a promissory note, requiring him to immediately repay the loan in full in the event of his resignation. The note required any disputes to be arbitrated pursuant to the Financial Industry Regulatory Authority (hereinafter FINRA) Code of Arbitration Procedure for Industry Disputes.

When the plaintiff decided to resign from Ameriprise, he hired the defendant law firm to negotiate with Ameriprise regarding the promissory note, and, if necessary, defend him against a note collection claim and assert counterclaims. The defendant’s main office is located in Chicago, Illinois. The plaintiff sent his correspondence with the defendant to the main office in Chicago, and, on one occasion, met with his attorneys in that city.

Ultimately, when the plaintiff failed to pay the debt, Ameriprise commenced a FINRA arbitration proceeding, held in New York, at which the defendant represented the plaintiff. The arbitration panel awarded judgment against the plaintiff and in favor of Ameriprise, requiring the plaintiff to pay the remaining balance of the note, with interest, as well as attorneys’ fees (pursuant to the terms of the note).”

“Here, accepting all facts as alleged in the amended complaint to be true and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), the amended complaint failed to state a legal malpractice cause of action. In the third and fourth causes of action, the plaintiff failed to adequately allege a breach of the applicable standard of care. The “selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v Paley, 65 NY2d 736, 738), and an attorney may not be held liable for “‘the exercise of appropriate judgment that leads to an unsuccessful result'” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 846-847, quoting Rubinberg v Walker, 252 AD2d 466, 467).

The fifth cause of action failed to adequately plead that, but for the defendant’s alleged negligence, the plaintiff would have obtained a more favorable outcome. The plaintiff merely alleged that had the defendant shared with him information imparted by Ameriprise’s attorney concerning the low rate of success of challenges to note collection proceedings, he would have insisted on settlement discussions (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 909; see also Bauza v Livington, 40 AD3d 791, 793). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848; see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 909).”

We have long observed that legal malpractice defendants, who must act according to rules devised by attorneys, and are judged by attorneys, enjoy a greater latitude in professional malpractice litigation than, say, doctors, accountants and other professionals. Though essentially anecdotal, the evidence is compelling.  That said, Bei Yang v Pagan Law Firm, P.C.
2022 NY Slip Op 22130 [75 Misc 3d 757]  April 25, 2022 Kraus, J. Supreme Court, New York Count seems to us to be compelling evidence.  There, violations of disciplinary rules were found, yet summary judgment granted against plaintiff.

“In this action and in her pleadings, plaintiff originally alleged many aspects of defendants’ representation in the prosecution of the personal injury case constituted malpractice. In opposition to defendants’ motion, plaintiff has essentially narrowed her allegations to a single claim, that defendants forced her to settle the case by pressuring her, threatening to withdraw as her attorneys if the case did not settle and demanding that she front $30,000 in trial costs in [*4]order to move ahead with the trial. Plaintiff asserts these actions essentially forced her to accept the settlement, because she was unable to find new counsel so late in the litigation, and she felt it was clear defendants did not want to proceed to trial.

Defendants have failed to submit affidavits on the motion denying these claims of coercion. Defendants submit an expert affirmation from Michael Zuller, Esq., that incorrectly alleges that there is no claim or allegation that plaintiff was coerced into accepting the settlement offer. Mr. Zuller opines that defendants did not depart from the applicable standard of care in prosecuting the underlying action, and that plaintiff cannot show the “but for” proximate causation element in establishing actual non-speculative damages. Mr. Zuller further opines that the underlying action would have been risky to try and cites that a significant percentage of medical malpractice trials result in a defense verdict.

Plaintiff’s unopposed allegations regarding the coerced settlement, including the threat by defendants to withdraw from representation and the demand that plaintiff front trial{**75 Misc 3d at 762} costs in contravention of the parties’ retainer agreement, do indeed suggest ethical breaches on the part of defendants.

However, the violation of a disciplinary rule or ethical obligations does not, without more, generate a cause of action for legal malpractice (Guiles v Simser, 35 AD3d 1054, 1056 [2006]; Weintraub v Phillips, Nizer, Benjamin, Krim, & Ballon, 172 AD2d 254 [1991]). To succeed on her legal malpractice claim, plaintiff would be required to prove that defendants were negligent in their legal representation, that their negligence was a proximate cause of her loss and that she sustained actual and ascertainable damages (see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]).

Plaintiff’s own expert does not dispute Mr. Zuller’s opinion that the action would be risky to try and that a trial may have resulted in a defense verdict or a verdict lower than the settlement amount. In his affirmation, Mr. Bower states:

“As such, the issue is not whether the settlement was adequate or reasonable, a fair amount or not, but simply whether the client’s assent was properly obtained. Whether accepting the offer was wise or foolish, and whether the settlement amount is fair or not, is entirely besides the point. In this case, the client’s consent was not voluntarily or freely given. Her assent was only obtained ‘under the gun.’ . . .

“Predictably, the defense contends that the settlement amount herein was very favorable to the plaintiff, perhaps more than would be recovered at trial, and certainly more than if the trial went badly. All of that may be true, but all of that is totally irrelevant, nonetheless. The wisdom of the client’s choice is not the legal test that matters herein. All that matters is whether the consent to settle was freely given. If freely given, the settlement is valid and binding, regardless of the amount. If not freely given, the settlement was improperly obtained, regardless of the amount.” (Emphasis added.)

While the issue of whether plaintiff would have received a greater amount of money if she went to trial may be “irrelevant” to ethical considerations, it is not irrelevant to the pending malpractice claim. The concession of plaintiff’s own expert that it is possible that plaintiff would not have recovered more money or even that plaintiff may have recovered less money if{**75 Misc 3d at 763} she proceeded to trial underscores that plaintiff will be unable at trial to establish that but for the settlement a trial would have resulted in a verdict in excess of 1.3 million dollars. (See e.g. Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405 [2016] [holding summary judgment dismissing [*5]the legal malpractice claim appropriately granted where the asserted damages are vague, unclear, or speculative]; Bellinson Law, LLC v Iannucci, 102 AD3d 563 [1st Dept 2013].)

While plaintiff cites to cases where a legal malpractice claim was held viable despite a settlement in the underlying action (Cohen v Lipsig, 92 AD2d 536 [2d Dept 1983]; Lattimore v Bergman, 224 AD2d 497 [2d Dept 1996]; Mazzei v Pokorny, Schrenzel & Pokorny, 125 AD2d 374 [1986]), these cases are distinguishable as none relate to a claim where the attorneys pressured a client to enter into a settlement; rather the cases cited involve circumstances where the settlement was required due to an error committed by counsel in their representation in the underlying action.

Thus even if the ethical breach alleged constituted malpractice, the inability of plaintiff to establish actual and ascertainable damages requires dismissal of the action.”