Spiegel v Hawco    2022 NY Slip Op 32431(U)  July 21, 2022  Supreme Court, New York County  Docket Number: Index No. 159930/2015  Judge: Shlomo Hagler is a legal malpractice case arising from a landlord-tenant matter which went awry after plaintiff agreed to be bought out of a rent-controlled apartment lease on West Grove Street.  Plaintiff loses, basically, because there were too many hands in the settlement of the landlord-tenant.

“In the Complaint, plaintiff alleges that “plaintiff was pressured into signing said stipulation settlement without being given adequate time, and without having fully read it
through” and that Hawco “pressured [her] to settle the lawsuit rather than go to trial” and ”threatened to withdraw as plaintiff’s counsel, and leave plaintiff without representation, if
plaintiff would not agree to settle the proceeding” (Complaint ,r,r 12-15 [NYSCEF Doc. No. 1]). The Complaint alleges that the Stipulation recovered no·damages for plaintiff and would require her to separately litigate for damages, the $60,000 payment was far less than the legal fees plaintiff incurred in defending the subject lease and that the Stipulation failed to include provisions setting forth for events of default (Id. at ,r,r 18-21 ). Plaintiff further contends that Hawco failed to advise her of the tax ramifications of the Stipulation (Id. at ,r 28). At the time plaintiff’s complaint was filed on September 28, 2015, plaintiff alleges that she had never received payment of the $60,000 provided for in the Stipulation. ”

“Here, defendant has established his prima facie entitlement to judgment as a matter of law on grounds that plaintiffs claims against him for legal malpractice have no merit and his
conduct was not the cause of any actual and ascertainable damages to plaintiff. Defendant presents an Affidavit and the subject Stipulation settling the Housing Court Proceeding, which most significantly, is signed by plaintiff (NYSCEF Doc. No. 46). Furthermore, defendant’s Verified Answer, quotes in full a letter, dated October I, 2012, from defendant to plaintiff
informing plaintiff that as a result of the foregoing Settlement, the work defendant was retained to do was complete and seeking costs and expenses (the “October I Letter”). The October 1 Letter also provides that plaintiff”read the Stipulation of Settlement to [her] Supreme Court attorney during a telephone conversation [she] had with him, while [ she was] in Housing Court and before [she] signed it, and … he made some changes to it and then approved it” (Verified Answer at, 28 [NYSCEF Doc. No. 43].4 In addition, defendant proffers the Judge Wendt Order, wherein Judge Wendt directed the parties to fully comply with the Stipulation settling the Housing Court Proceeding (NYSCEF Doc. No. 47). As such, defendant met his prima facie burden establishing lack of negligence.

Moreover, defendant has established prima facie an absence of proximate cause between his conduct and plaintiffs alleged damages (Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d
651, 651-652 [1 st Dept 2012] [internal quotation and citation omitted]); Von Duerring v Hession & Belco.ff, 71 AD3d 760, 760 [2d Dept 2010]; Carrasco v Pena & Kahn, 48 AD3d 395, 396 [2d Dept 2008]). Given that plaintiff knowingly and with legal assistance from another attorney accepted the terms of the Stipulation, plaintiff’s claims that her damages constituting the failure of the landlord to remit the $60,000 and loss of the value of the leased Apartment could be attributable to defendant’s conduct, are entirely conclusory.

In opposition, plaintiff fails to raise an issue of fact. It is uncontroverted that plaintiff signed the Stipulation. “Since plaintiff was competent to execute the settlement agreement, and
no fraud is alleged, he is responsible for his signature and is bound to read and know what he signed” (Beattie v Brown & Wood, 243 AD2d 395, 395 [1 st Dept 1997]). Plaintiff has also
failed to refute the evidence that before she signed the Stipulation, she consulted with her ‘Supreme Court attorney’ by telephone who purportedly made changes to the Stipulation before it was executed. Plaintiffs allegations that somehow Hawco abandoned her in the middle of the case is belied by the fact that there is no evidence in the record that she responded to his letter of October 1, 2012 informing her that his representation was concluded due to the settlement of the matter. Although plaintiff alleges dissatisfaction with the Stipulation, plaintiff never made a motion or otherwise sought to vacate the Stipulation. However, even had plaintiff sought such relief, she would have been unsuccessful in view of Judge Wendt’s determination on October 12,2012 (NYSCEF Doc. No. 47) with respect to Ween’s charging lien, directing the parties to
comply with the Stipulation.

Plaintiff’s allegations that defendant pressured or coerced her into settling, that she was forced to sign, that defendant induced her into forfeiting her lease and that defendant threatened· that he would withdraw as counsel if plaintiff did not settle are entirely conclusory. Plaintiff failed to particularize such allegations of duress, and it is uncontroverted that she signed the Stipulation and even consulted her ‘Supreme Court attorney’.”

In Provenzano v Cellino & Barnes, P.C. 2022 NY Slip Op 04749 Decided on July 27, 2022 Appellate Division, Second Department we see an illustration of the “no harm-no foul” spirit of legal malpractice.  Sure, an attorney may make a mistake, depart from good practice or fail to explore an avenue of recovery, but if it was doomed from the start (or in hindsight seems doomed to the Court) there will be no successful legal malpractice case.

“On April 19, 2010, the plaintiff, who was the store manager at the Banana Republic store at Woodbury Commons mall on Jericho Turnpike, sustained injuries when a vehicle struck her as she was crossing the street. The plaintiff had finished working for the day, and was walking toward her vehicle in the parking lot. The plaintiff testified that all Woodbury Commons employees were supposed to park in that parking lot, and that the parking lot was also used by customers. To access to the parking lot, the plaintiff had to descend some stairs, which were used by the public to access a bank and a store. The plaintiff was struck by the vehicle while she was in a road used by anyone entering or exiting the mall.

The plaintiff retained the defendant law firm to represent her in a personal injury action against the driver of the car. After the plaintiff became dissatisfied with its representation, she discharged the defendant law firm. Thereafter, the plaintiff applied for Workers’ Compensation benefits. Her Workers’ Compensation claim was denied as time-barred because it was filed more than two years after the accident.

On or about September 11, 2014, the plaintiff commenced this action, alleging that the defendant law firm had committed malpractice because it, among other things, failed to file for Workers’ Compensation benefits on her behalf and misadvised her regarding her right to file a Workers’ Compensation claim. The defendant moved for summary judgment dismissing the complaint and the plaintiff cross-moved for summary judgment on the complaint. The Supreme Court granted the defendant’s motion and denied the plaintiff’s cross motion. The plaintiff appeals.

“‘A plaintiff seeking to recover damages for legal malpractice must prove that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused [*2]the plaintiff to sustain actual and ascertainable damages. A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages'” (EDJ Realty, Inc. v Siegel, 202 AD3d 1059, 1060, quoting Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625). “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; Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830).

Here, the defendant demonstrated, prima facie, that the plaintiff would not have prevailed in her claim for Workers’ Compensation benefits (see EDJ Realty, Inc. v Siegel, 202 AD3d 1059). The evidence established, prima facie, that the underlying accident was related to a risk shared by the general public, as opposed to a special hazard connected to the plaintiff’s employment (see Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 144; Matter of Johnson v New York City Tr. Auth., 182 AD3d 970, 971; Matter of Brennan v New York State Dept. of Health, 159 AD3d 1250, 1252; Matter of Trotman v New York State Cts., 117 AD3d 1164, 1165; Matter of Littles v New York State Dept. of Corrections, 61 AD3d 1266, 1268; Matter of Cushion v Brooklyn Botanic Garden, 46 AD3d 1095, 1096; cf. Matter of Cadme v FOJP Serv. Corp., 196 AD3d 983, 984). In opposition, the plaintiff failed to raise a triable issue of fact as to whether, inter alia, she was exposed to a special hazard.

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion for summary judgment on the complaint.”

In this odd case, Feng Li v Shih  2022 NY Slip Op 04293  Decided on July 6, 2022  Appellate Division, Second Department  Plaintiff is an attorney who was disbarred in New Jersey and suspended in New York.  He turns around and sues another attorney claiming that the proceedings in New Jersey were malicious, an abuse of process  and intentional infliction of emotional distress.  All the claims fail.

“The plaintiff represented a number of clients in a lawsuit that resulted in a substantial judgment. The proceeds of the judgment were received by the plaintiff and deposited into his trust account. The plaintiff and the clients disagreed as to whether the plaintiff’s legal fees should be calculated pursuant to the terms of the retainer agreement they had signed or pursuant to New York’s contingency fee rules, and as to whether funds collected prior to the plaintiff’s representation of the clients should be included in that calculation as well (see Matter of Feng Li v Knight, 201 AD3d 1048, 1048-1049). Before the fee dispute had been resolved, the plaintiff unilaterally disbursed approximately $1.2 million of the amount collected on behalf of the clients to himself and thereafter used the disputed funds to pay off foreign debts (see Feng Li v Peng, 161 AD3d 823, 824; Feng Li v Peng, 516 BR 26, 32 [Bankr D NJ], affd 610 Fed Appx 126 [3d Cir]). The plaintiff “was subsequently disbarred in New Jersey and suspended from the practice of law in New York for misappropriating the disputed portion of his legal fee” (Feng Li v Peng, 161 AD3d at 824; see Matter of Feng Li, 149 AD3d 238; In re Feng Li, 201 NJ 523, 65 A3d 254). The fee dispute concluded in 2015 when a New Jersey court entered a judgment in favor of the clients and against the plaintiff in the total sum of approximately $1 million.

The plaintiff subsequently commenced this action against the defendant, an attorney who represented the plaintiff’s former clients in a number of actions and proceedings arising out of the fee dispute. The complaint asserted eight causes of action, sounding in malicious prosecution, abuse of process, prima facie tort, and intentional infliction of emotional distress, among other things. The complaint alleged that the plaintiff justifiably disbursed the disputed portion of the fee to himself, and that the defendant, despite knowing this to be true, pursued relief on the clients’ behalf in the New Jersey action that resulted in the money judgment and in two attorney discipline proceedings that resulted in the plaintiff’s disbarment in New Jersey and suspension in New York. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint. The plaintiff opposed the motion, and separately moved pursuant to CPLR 3025(b) for leave to supplement the complaint by adding a cause of action to recover treble damages under Judiciary Law § 487 and allegations that the defendant falsely accused the plaintiff of misappropriating client funds and misrepresenting the terms of the retainer agreement in communications with a number of courts and other bodies.

In an order dated December 10, 2019, the Supreme Court, inter alia, granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the defendant’s filing of ethics complaints was absolutely privileged (see Wiener v Weintraub, 22 NY2d 330, 331-332). In an order dated December 11, 2019, the court denied the plaintiff’s motion pursuant to CPLR 3025(b) for leave to supplement the complaint. The defendant appeals from both orders. We affirm, albeit for different reasons than those relied upon by the Supreme Court.”

“Nevertheless, the defendant was entitled to dismissal of the entire complaint. “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500). “‘Collateral estoppel comes into play when four conditions are fulfilled: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits'” (Wilson v City of New York, 161 AD3d 1212, 1216, quoting Conason v Megan [*2]Holding, LLC, 25 NY3d 1, 17). Here, numerous courts, including this Court, have determined that the plaintiff may not relitigate the merits of the fee dispute with his former clients and the question of whether he misappropriated their funds (see e.g. Matter of Feng Li v Knight, 201 AD3d at 1048-1051; Feng Li v Peng, 161 AD3d at 825-826; Feng Li v Lorenzo, 2016 WL 10679578, *2 [SD NY, No. 16-CV-4092 (CM)], affd on other grounds, 712 Fed Appx 21 [2d Cir]; Feng Li v Peng, 516 BR at 42-48; Peng v Law Off. of Feng Li, 2017 WL 1166454, *6, 2017 NJ Super Unpub LEXIS 800, *15-16 [NJ Super, Docket No. A-3280-14T2]). The plaintiff’s first through fourth causes of action are all renewed attempts to relitigate these issues. Consequently, these causes of action are barred under the doctrine of collateral estoppel.

The plaintiff does not otherwise have a cause of action to recover damages from the defendant. New York does not recognize independent causes of action for punitive damages (see Gershman v Ahmad, 156 AD3d 868, 868) or civil conspiracy (see Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d 785, 788), and the plaintiff does not identify an actionable, underlying tort that might otherwise warrant recovery under these causes of action or his aiding and abetting cause of action. Moreover, “‘there is no private right of action against an attorney or law firm for violations of the Code of Professional Responsibility or disciplinary rules'” (Karimian v Karlin, 173 AD3d 614, 616, quoting Weinberg v Sultan, 142 AD3d 767, 769; see DeStaso v Condon Resnick, LLP, 90 AD3d 809, 814).

As for the plaintiff’s motion pursuant to CPLR 3025(b) for leave to supplement the complaint, “[m]otions for leave to amend the pleadings and motions for leave to supplement the pleadings are generally governed by the same standard[ ]” (Maulella v Maulella, 90 AD2d 535, 537; see CPLR 3025[b]). “A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just” (CPLR 3025[b]). Leave “‘should be granted where the amendment [or supplement] is neither palpably insufficient nor patently devoid of merit, and any claimed delay in seeking the amendment [or supplement] does not prejudice or surprise the opposing party'” (Ridgewood Sav. Bank v Glickman, 197 AD3d 1189, 1191, quoting American Bldrs. & Contrs. Supply Co., Inc. v US Allegro, Inc., 177 AD3d 836, 838). Here, the proposed supplement to the complaint seeking to add a cause of action under Judiciary Law § 487 was “patently devoid of merit” (McIntosh v Ronit Realty, LLC, 181 AD3d 579, 580; see Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1092-1093).”

Frydco Capital Group, LLC v Carlton Fields, P.A.  2022 NY Slip Op 02619 [204 AD3d 532] April 21, 2022 Appellate Division, First Department  is a picture of two wholly different stories.  Plaintiff’s story survived a motion to dismiss, only to be vanquished by Defendants’ story on appeal.

“The legal malpractice claims should have been dismissed pursuant to CPLR 3211 (a) (7) on the ground that plaintiffs failed to plead how defendants’ alleged acts or omissions proximately caused plaintiffs to sustain any loss in connection with a Florida real estate transaction (see Pellegrino v File, 291 AD2d 60, 63-64 [1st Dept 2002]).

In addition, the legal malpractice claims should have been dismissed pursuant to CPLR 3211 (a) (1). Defendants submitted documentary evidence, including the purchase agreement for the property and the seller’s partial assignment of its interests in that agreement, that refutes plaintiffs’ allegations that the seller’s alleged breach of the purchase agreement prevented the closing from occurring, resulting in plaintiffs’ loss of the increased value of the property (see Ladera Partners, LLC v Goldberg, Scudieri & Lindenberg, P.C., 157 AD3d 467, 467 [1st Dept 2018]). The purchase agreement between plaintiff Southside and the seller explicitly permitted the seller to engage in a section 1031 transfer, required Southside to cooperate and did not prohibit the seller from assigning its interest as long as it did not allow another party to acquire the property. The assignment agreement between the seller and the assignee clearly bound the assignee to all of the seller’s obligations to plaintiffs. Moreover, the assignment agreement and correspondence from seller’s counsel made clear that it was not the seller who delayed and prevented the closing, but rather, plaintiff Frydco, Southside’s managing member, which did so unilaterally.

Plaintiffs’ new theory of causation, that plaintiffs’ position in prior litigation with the seller was weakened by an unauthorized consent to the assignment signed by Southside’s former manager with defendants’ knowledge, is unpreserved for appellate review as it is raised for the first time on appeal. In any event, this new theory of causation is equally speculative concerning how defendants proximately caused any loss to plaintiffs, who now acknowledge that they elected not to close and to instead seek return of their down payments and other damages from the seller. It is thus insufficient to state a claim for legal malpractice.”

Previously, we looked at the Judiciary Law § 487 claims.  Legal Malpractice Claims were also brought in Joseph v Fensterman  2022 NY Slip Op 02398 [204 AD3d 766] April 13, 2022
Appellate Division, Second Department.

“Contrary to the plaintiffs’ contention, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the third cause of action, to recover damages for legal malpractice against the law firm, Howard Fensterman, Robert Fensterman, Kathleen Eisman, as executor of the estate of Steven J. Eisman, and Patrick Formato (hereinafter collectively the Operating Company attorneys) based upon their representation of Martin Farbenblum and Bacchi in the Bay Park Operating Company acquisition. “ ’To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages’ ” (Lopez v Lozner & Mastropietro, P.C., 166 AD3d 871, 873 [2018], quoting Dempster v Liotti, 86 AD3d 169, 176 [2011]).

“ ’An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed’ ” (Schrull v Weis, 166 AD3d 829, 831 [2018], quoting 3rd & 6th, LLC v Berg, 149 AD3d 794, 795 [2017]; see CPLR 214 [6]). “In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Schrull v Weis, 166 AD3d at 831 [internal quotation marks omitted]; see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [2017]).

Pursuant to the doctrine of continuous representation, “ ’the time within which to sue on the [cause of action] is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates’ ” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957 [2016]). “For the continuous representation doctrine to apply, ‘there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney’ ” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506 [1990]; see Schrull v Weis, 166 AD3d at 831).

Here, the defendants demonstrated, prima facie, that the third cause of action was untimely. In opposition, the plaintiffs failed to raise a question of fact as to whether the continuous representation doctrine or any other legal basis applied to toll the statute of limitations (see Potenza v Giaimo, 165 AD3d 1186, 1187-1188 [2018]). Although the amended complaint alleged that the Operating Company attorneys told the plaintiffs they would return Martin Farbenblum and Bacchi’s full 10% interests to them through 2013, there is no allegation that the Operating Company attorneys provided legal representation to the plaintiffs after 2009. “Application of the continuous representation . . . doctrine is . . . generally limited to the course of representation concerning a specific legal matter,” not merely a continuing relation between the attorney and client (Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]).

The Supreme Court should have denied that branch of the defendants’ motion which sought dismissal of the fourth cause of action, to recover damages for legal malpractice against the law firm, Howard Fensterman, and Lichtenstein based upon their representation of the plaintiffs in the New Franklin litigation. As an initial matter, the record raises “a question of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790). Moreover, “accepting the facts alleged in the complaint as true, and according the plaintiff[s] the benefit of every possible favorable inference, the plaintiff[s] stated a cause of action to recover damages for legal malpractice” (Lopez v Lozner & Mastropietro, P.C., 166 AD3d at 873).

[*4] The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the fifth cause of action, to recover damages for legal malpractice against the law firm, Howard Fensterman, Formato, and Mark Frimmel based upon their representation of the plaintiffs during the acquisition of the property on which the Bayview Nursing and Rehabilitation Center is located. Accepting the allegations in the amended complaint as true, the fifth cause of action failed to set forth facts sufficient to allege that those defendants’ purported negligence proximately caused the plaintiffs to sustain actual and ascertainable damages (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813 [2013]; Siwiec v Rawlins, 103 AD3d 703, 704 [2013]).”