As a reminder of the many and varied paths of law and law practice, here is a quote from today’s NYLJ Outside Counsel Column, written by T. James Bryan, of Herrick Feinstein. He discusses an arcane area of tax law coupled with condo sales.

The bottom line? Legal malpractice.

“You are asked to represent a purchaser of a condominium unit in a building that was recently converted into a condominium. The building was a commercial building before the sponsor purchased it for the purpose of converting it into residential use.

The building, a ministorage facility, was purchased by the sponsor on or about June 10, 1998. The sponsor rehabilitated the building for residential use and filed an offering plan with the attorney general to sell condominium units in the building. This offering plan was accepted for filing by the attorney general on Jan. 31, 2000. The closings for sales of the units did not start until sometime after May 11, 2001. Your client closed on the purchase of her unit in August 2001.

So far, nothing unusual. You agree to a standard fee of between $1,500 and $2,000 for your services. As part of your due diligence, you read the offering plan that was approved by the attorney general a year before, and a title report that you carefully scrutinized.

Everything appears in order and your client closes on the purchase of her unit. One year after the August 2001 closing, your client calls you and, in a distressed (perhaps hostile) tone, tells you that she has just been received a tax bill from the city of New York (the July 1, 2002 tax bill for 2002-’03) for her share of $338,339 in “deferred taxes.” The title report made no mention of “deferred taxes.” Nothing in the offering plan indicated or even hinted at such a potential liability.

‘7 Vestry LLC v. N.Y.C. Dept. of Finance’

According to a recent decision of the Appellate Division, First Department, you did not do your job. 7 Vestry LLC v. New York City Dept. of Finance, 22 AD3d 174, 800 N.Y.S.2d 398 (1st Dept. 2005), appeal denied, 2006 N.Y.App. LEXIS 596 (lst Dept. Jan. 19, 2006).

You should have examined the July 1, 2000 bill rendered to sponsor, and have seen a notation on that bill indicating that $6,046 of that bill was noted as being for “ICIP DEFERRED.” From this, you should have realized that your client would be liable for paying taxes that otherwise would have been paid by an owner of the building that was sold to the sponsor and converted from commercial to residential use. The court said that:

The individual unit owners had constructive notice [of their future tax liability] because a prudent purchaser would have scrutinized the tax bills for the current year and years prior to the purchase date and would have seen the ICIP deferral notation in 2000 and investigated further. Each purchaser who purchased his/her unit after the July 1, 2000 tax bill took title subject to the tax lien created by the ICIP tax deferral repayment requirement, which lien is enforceable against that purchaser. Id. at 184.

You never thought, as part of your due diligence, to ask for the July 1, 2000 tax bill since the offering plan contained the total taxes for 1999-’00 and 2000-’01, and made no mention that a portion of the 2000-’01 bill was for “deferred ICIP taxes.”

1. Amcan Holdings, Inc. v. Torys LLP,</em> 8637N, Index 115392/04, 590097/05 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , 2006 NY Slip Op 6308;

This US and Canadian legal malpractice case, reported by us much earlier in its life, has been fought on two fronts, Essex County and New York County. The claim is that Tory’s , a Canadian law firm, helped to damage plaintiffs through a conflict of interest. Plaintiffs claim that Torys chose to favor a big bank rather than them, and caused multi-millions in damage. Plaintiff Grey, himeslf an attorney, was jailed for contempt as part of this case. “In the absence of demonstrated [**8] prejudice to plaintiffs, it was an abuse of discretion to deny consolidation” (Raboy v McCrory Corp., 210 A.D.2d 145, 147, 621 N.Y.S.2d 14 [1994]). The actions should thus be consolidated under the New York County index number, since “Absent exceptional circumstances involving the convenience of material witnesses, the venue of a consolidated action should be the county in which the first action was commenced” (Teitelbaum, 6 AD3d at 255).” Now the matter is consolidated in New York County. Very interesting legal malpractice case, and may well end in a multi-million dollar result.

2. Simmons v. Edelstein, 2004-10854, 2004-10856, (Index No. 18168/03) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , 2006 NY Slip Op 6228; TYhis opinion tells us that the 3211[a][7] dismissal was affirmed. Apparently plaintiff did not convince the panel that the mistake was a proximate cause of the damage.However, no information is given in the decision. “To survive dismissal, the complaint must show that, but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages (see Pellegrino v File, 291 A.D.2d 60, 63, 738 N.Y.S.2d 320). The Supreme Court properly determined that the plaintiff failed to allege a cognizable cause of action to recover damages for legal malpractice (see Menicucci Villa & Assoc., PLLC v Pickett, 24 A.D.3d 734, 805 N.Y.S.2d 853; Edwards v Haas, supra).”

3. Brady v. Bisogno & Meyerson, 2005-04314, (Index No. 32094/02) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , 2006 NY Slip Op 6144; “In the instant case, the affidavit of the defendants’ expert established, prima facie, that the defendants followed the accepted and customary practices of the legal profession in determining which party controlled or maintained the parking lot where the injured plaintiff fell (see generally Zuckerman v City of New York, 49 N.Y.2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595). The affidavit of the plaintiffs’ expert failed to rebut this, and stated only in [**3] conclusory fashion that the defendants should have been able to determine that the subject property was controlled by a third party. HN3Conclusory expert opinions are insufficient to raise a triable issue of fact (see Schrader v Sunnyside Corp., 297 A.D.2d 369, 371, 747 N.Y.S.2d 26). Therefore, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint and denied the plaintiffs’ cross motion for summary judgment on the issue of liability.” This matter was brought by Julien & Schlesinger, which is not a customary legal malpractice player. Apparently the wrong party was sued in a trip and fall.

4. Mega Group, Inc. v. Pechenik & Curro, P.C., 98694 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT , 2006 NY Slip Op 6108; ). Fact laden decision based upon a plethora of prior litigation between the parties. “Here, an attorney-client relationship existed between Mega and the attorneys, and Mega’s pleadings contain sufficient facts to support the conclusion that the attorneys were negligent in defending Mega in the Halton action. As Supreme Court properly found, however, Mega has failed to state facts sufficient to find that it has suffered any actual and ascertainable damages.

First, Mega cannot claim any disadvantage in negotiating the sale by virtue of the attorneys’ alleged negligence in connection with the Halton action because neither Mega nor MPL claims any knowledge that Halton had in fact made cross claims against Mega when the sale took place (see Busino v Meachem, supra at 608). Further, although a default judgment was entered against Mega in the Halton action, it is clear from the record that Mega did not pay that judgment and the judgment has now been satisfied;”

OK, for those of you who do not practice any type of trial law, “naked” ususally means “without insurance.” Here is an article which tracks the ups and downs of bankruptcy filings. Mr. Sment opines that many legal malpractice carriers cut coverage in the wake of changes to bankruptcy law last year. “According to Sment, many legal malpractice insurance carriers stopped covering debtors’ counsel because of the new regulations, part of which made it a possibility that attorneys would have to disgorge their fees and be treated as creditors.” How do non-covered attorneys sleep? Details.

Client hired attorneys to litigate a big estate matter, and it appears that they did well. They did so well that the court directed the estate to pay a large percentage of their fees, leaving a smaller part for the client to pay. Client did not pay, and was sued for legal fees. Result? Client pays legal fees and big, big sanctions. Details.

Its a shortened blog blip, and it seems that the original path to the decision is corrupt, but here is the story: “State law precluded excess insurer’s legal malpractice suit against attorneys who represented insured in personal injury suit; insurer lacked privity with attorneys and thus by statute could not assert claim for legal malpractice, and attorney’s letter to insurer, forwarding case evaluation, did not establish insurer as intended third-party beneficiary entitled to sue.: Details.

Here is a press release from the plaintiff’s attorney in what they call the “Largest Case of Financial Elder Abuse in Los Angeles County History” It hinges in estate and legal malpractice. “Fagelbaum & Heller announced today that it is suing the prominent Los Angeles law firm of Hoffman, Sabban & Watenmaker (HSW) for alleged professional malpractice and having grossly failed in its fiduciary responsibilities in the largest case of financial elder abuse in Los Angeles County history. The trial begins September 1. The press release.

In Colorado, attorneys may be sued for legal malpractice, and in a new turn of events, for false advertising. “Supreme Court,after considering arguments from the parties, and at least five “friend of the court” organizations concluded that lawyers must play by the same rules as anyone else when it comes to truth in advertising.

If a lawyer advertises a quality or type of service with an intent not to provide that service, it’s fair game to sue the lawyer under the CCPA. Said the Court: “The CCPA applies to protect the vulnerable consumer of legal services and the consumer public as a whole in the situation in which the purveyor of those services knowingly misrepresents the quality and likely benefit of those services.”

Queery? With the new lawyer advertising statutes coming to NY, will there be a similar line of cases?

Predicting that the campaign line would be: “Do you want your future attorney general to have been guilty of malpractice” present candidate Walter “Skip” Campbell has settled a potential legal malpractice case by reducing his firms fees in a product-liability personal injury action. Details.