Allen v Thompson  2022 NY Slip Op 31571(U) May 11, 2022 Supreme Court, New York County Docket Number: Index No. 160342/2020   Judge: Sabrina Kraus.  This legal malpractice case is based upon the allegation that Defendant Attorney “unilaterally and without Plaintiff’s consent, changed one word to the Agreement.”

“Plaintiff alleges the following facts in her complaint. On or about February 28, 2012, Plaintiff was terminated from Chanel, Inc. after nineteen (19) years of employment. Plaintiff
was offered a severance package of $21,789.20 and five ( 5) months of paid COBRA. Plaintiff was not satisfied with this arrangement and believed that her employment was terminated on the basis of discrimination. Plaintiff consulted with Defendant for guidance with regard to accepting the severance package, but still retained her legal right to file a discrimination lawsuit against Chanel, Inc. Defendant, as an attorney, agreed to represent Plaintiff, to negotiate a separation and release agreement (the “Agreement”) from Chanel, Inc., that would permit Plaintiff to retain her legal right to move forward on her discrimination claim and represent her with respect to that claim as well.

After a few weeks of negotiation, Defendant received the final draft of the Agreement from Chanel, Inc. The Agreement that Defendant received contained language that excluded
from the release any discrimination claims. Unbeknownst to Plaintiff at the time, Defendant unilaterally and without Plaintiffs consent, changed one word to the Agreement, changing the word “including” to “excluding” in reference to Plaintiff waiving any rights to sue for discrimination.

This one change to the Agreement made by Defendant, now made the Agreement read that Plaintiff released all of her rights as part of the settlement, except for any right arising under Title VII, the New York State Human Rights Law and the New York City Human Rights Law, thereby allowing Plaintiff to still file a lawsuit under these statutes. Plaintiff was sent this new document by overnight mail and was instructed by Defendant to initial each page and sign it. Defendant then directed Plaintiff to send the altered document back to Chanel, Inc.”

“Plaintiffs specific factual allegations of negligence, causation, and damages are sufficient to state a cause of action for legal malpractice. Pyne v. Block & Assoc, 305 A.D .2d 213 ( I st
Dep’t 2003). See Between The Bread Realty Corp. v. Salans Hertzfeld Heilbronn Christy & Viener, 290 A.D.2d at 381; DweckLaw Firm v. Mann, 283 A.D . .2d at 293;Greenwich v
Markhoff, 234 A.D.2d 112, 114 (1st Dep’t 1996); Gotay v. Breitbart, 14 A.D.3d 452,454 (1st Dep’t 2005). ”

“Based on the foregoing, Defendant’s motion for dismissal pursuant to CPLR §321 l(a)(7) is granted only as to the cause of action or breach of fiduciary duty. ”

Not for the first time, courts hold that suing an attorney appointed by the court is impermissible.  In J.D. v Galchus  2022 NY Slip Op 22139 Decided on March 31, 2022 Supreme Court, Queens County Velasquez, J. held just that.

“This is a legal malpractice action against the defendant, the court appointed attorney for the minor child in a custody proceeding. On April 25, 2018, the plaintiff commenced a proceeding in Family Court, Queens County, to modify a custody agreement she had with her ex-husband, P. L., regarding their minor child, Anonymous. Plaintiff sought to relocate with the child to New Orleans. P. L. opposed the Family Court petition and also executed his own petition in which he sought to be awarded primary residential/physical custody of Anonymous. In May 2018, defendant was assigned by the Family Court as the Attorney for the child, Anonymous. At the Family Court hearing, defendant stated that it was the child’s preference to relocate with the plaintiff to New Orleans.”

“The plaintiff herein lacks standing to bring this action against the defendant, the Law Guardian. There is no privity between the plaintiff and the defendant. (see Bluntt v O’Connor, 291 AD2d 106, 114 [4th Dept 2002].) Indeed, the defendant was appointed to assist the child in presenting her views and her wishes. He was not representing the plaintiff in any capacity, and no attorney-client relationship existed between them. As such, the defendant is entitled to quasi-judicial immunity.

Although the court is aware of the October 2, 2019 Appellate Division decision stating that the defendant did not advocate for the position of the child herein, the court cannot use this as a basis to allow the plaintiff to maintain a malpractice action against the defendant. To allow a malpractice lawsuit against the defendant in these types of circumstances would discourage attorneys from serving as court appointed counsel. (see Bluntt v O’Connor, 291 AD2d at 118-119.) As noted by the Supreme Court of Wisconsin, without the assistance and impartial judgment of a guardian ad item, the “court would have no practical or effective means to assure itself that all of the essential facts have been presented untainted by the self-interest of the parents and children.” (Paige K.B. v Molepske, 219 Wis 2d 418, 434, 580 NW2d 289 [Sup Ct, Wisconsin 1998].) Moreover, the court wisely noted that immunity in these situations is necessary “to avoid the harassment and intimidation that could be brought to bear on GALs by those parents and children who may take issue with any or all of the GAL’s actions or recommendations.” (Paige K.B. v Molepske, 219 Wis 2d at 434.)

Other courts have taken similar positions. One court has stated that “[f]ear of liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best for the child; the guardian’s focus must not be diverted to appeasement of antagonistic parents.” (Ward v San Diego County Dept. of Social Servs., 691 F Supp 238, 240 [SD Ca 1988].) Further, court-appointed experts, “faced with the threat of personal liability, will be less likely to offer the disinterested objective opinion that the court seeks.” (Winchester v Little, 996 SW2d 818, 827 [Sup Ct, Tenn 1999].) Moreover, “[a] failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in [*3]judicial proceedings.” (Kurzawa v Mueller, 732 F2d 1456, 1458 [6th Cir 1984].) Many of these cases are based on the holding of the Supreme Court that “the common law provided absolute immunity from subsequent damages liability for all persons—governmental or otherwise—who were integral parts of the judicial process.” (Briscoe v LaHue, 460 US 325, 335 [1983].)

This court agrees with these opinions and finds that permitting a malpractice case to proceed against the defendant herein would go against public policy. It would subject these attorneys to possible unnecessary litigation for performing an extremely important function for the court.

Accordingly, this motion by defendant to dismiss the complaint is granted, and the action is dismissed.”

Cutie Pie Baby Inc. v Sasson Law PLLC  2022 NY Slip Op 31450(U)  May 2, 2022 Supreme Court, New York County Docket Number: Index No. 655055/2021 Judge: Margaret Chan is an interesting, and relatively rare application of Grace v. Law,  24 NY3d 203 (2014).  In a family setting, two of the family seek to remove the third member.  They did so in a manner which was found to be incorrect, and led to an arbitration.

“On August 19, 2021, plaintiffs filed this action asserting two legal  malpractice claims~ne against Sasson and the second against Akin Gump (NYSCEF # 1,  49-57; 58·67). The complaint alleges that defendants committed legal malpractice by failing to advise plaintiffs to send notice of the Special Meeting to JY which caused damages to plaintiffs (id., , 55, 67). Specifically, the complaint seeks to recover $4,844,451 consisting of (1) $2,186,932 for JY’s legal fees incurred in the arbitration, which CPI was required to pay as part of the arbitration panel’s Final Award, (2) $1,064,992 in legal fees that plaintiffs paid its counsel in connection with the arbitration proceeding, (3) $731,000 in costs and expenses
arising out of the arbitration, (4) $397,343.59 in legal fees paid by plaintiffs to Akin Gump, and (5) $464,513.56 in legal fees to Sasson (id. , 44·48) ”

“To satisfy the pleading requirement for causation, it must be alleged that ‘”but for’ the attorney’s conduct [or nonfeasance], the client would have prevailed in the underlying action or would not have sustained any ascertainable damages” ( Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]; Cosmetics Plus Group, Ltd. v Traub, 105 AD3d at 140). Regarding damages, “to survive a … pre-answer dismissal motion, a pleading need only state allegations from which damages attributable to the defendant’s conduct [or nonfeasance] may be reasonably inferred” (Lappin v Greenberg, 34 AD3d 277, 279 [1st Dept 2006] [internal citations omitted]).

Under these standards, the court finds that the complaint adequately pleads professional negligence based on allegations that Sasson failed to use “the level of skill and knowledge possessed common to my members of the legal profession” by incorrectly advising plaintiffs that JY could be removed at a special meeting and that they were not obligated to provide JY notice of the meeting (NYSCEF # 1,  50, 56). And contrary to Sasson’s position, dismissal is not warranted on the ground that the alleged failure to properly advise plaintiffs was a matter of professional judgment.

Regarding causation, the complaint alleges that because Sasson gave the wrong advice to plaintiffs·· that notice of the Special Meeting to JY was not necessary — CPB was forced into arbitration with JY, and it was Sasson’s improper legal advice on notice that caused the arbitrators ruled in JY’s favor id., ~,52-54). The complaint also alleges that “[a]s a result of [Sasson’s] improper legal advice, Plaintiffs have been damaged in the amount of $4,844,451.00” (id, , 55).

These allegations are sufficient to plead that “but for” the alleged malpractice, plaintiffs would not have been required to incur the legal fees, costs, and expenses associated with the arbitration proceeding. And while JY would have been entitled to payment for the value of his shares even if he were provided with notice, plaintiffs are not seeking to recover the $7,972,511 that the Award required them to pay for JY’s shares. Instead, plaintiffs seek legal fees, costs, and expenses resulting from the allegedly unnecessary arbitration (Rudolph v Shayne, Dachs, Stanisc1: Corker & Sauer, 8 NY3d 438, 443 [2007] [damages in a legal malpractice action may include “litigation expenses incurred in an attempt to avoid, minimize or
reduce the damage caused by the attorney’s wrongful conduct”). ”

“Next, Sasson’s argument that plaintiffs were required to exhaust appellate review in order to bring this action is unavailing, since Sasson has not shown that plaintiffs would have been likely to succeed on the appeal ( Grace v Law,· 24 NY3d 203, 211-212 [2014]; see also Florists’ Mut. Ins. Co., Inc. v Behman Hambelton, LLP, 160 AD3d 502, 502 [1st Dept 2018] [affirming trial court’s finding that an appeal to Workers’ Compensation Board was not required prior to filing a malpractice claim where such appeal was unlikely to succeed]). “

Roedelbronn v Borstein & Sheinbaum LLC  2022 NY Slip Op 31434(U) May 3, 2022 Supreme Court, New York County Docket Number: Index No. 158045/2020 Judge: William Perry is a rare divorce legal malpractice case that has actionable facts which give rise to provable damages.  (Example:  a miscalculation by the Referee of $ 417,000 in plaintiff’s favor, not challenged by the attorneys).  However, the Court finds it too late and after the statute of limitations has passed.

“Atrial was held before Special Referee Joseph Burke from June 23 to July 16, 2015. On October 13, 2016, Referee Burke issued a report recommending that Cotton pay Plaintiff
$20,000.00 in maintenance per month and that Plaintiff be allocated “10% of the marital property portion of the Agrifos business assets”. (NYSCEF Doc No. 16, Burke Report, at 3-4, 7.) The Hon. Deborah Kaplan adopted the recommendations and issued a judgment of divorce on October 20, 2017. (NYSCEF Doc No. 21, Judgment of Divorce, affd 170 AD3d 595 [1st Dept 2019].)

Plaintiff commenced this action on September 30, 2020, and filed the amended complaint on December 10, 2020, alleging that she was awarded a smaller share of the marital assets and alimony than she was entitled to receive. (NYSCEF Doc No. 8, Am. Cmplt, at ,i 15.) Specifically, Plaintiff alleges that Defendants were negligent in that they:
a. failed to properly prepare for the trial;
b. obtain the services of and use a forensic accountant to testify at the trial even
though funds were provided to obtain one;
c. failed to provide or obtain any witnesses during the trial before the Special
Referee;
d. failed to provide Exhibits at the Hearing before the Special Referee to respond
to Cotton’s 240 Exhibits and five witnesses other than Plaintiff; ·
e. failed to properly advise plaintiff as to what was needed for the hearing, properly
prepare her for trial or advise her when she was unable to attend on a daily bases
because of severe illness;
f. failed to take all actions necessary to obtain an adjournment in light of
PLAINTIFF’S documented severe illness;
g. failed to properly advise plaintiff;
h. failed to properly confirm the calculations of the Special Referee which appears
to have omitted over $417,991.30 in favor of Plaintiff;
i. failed to properly advise PLAINTIFF with regard to Domestic relations Law 236
and in in general, and
g. failed to properly represent Plaintiff after the hearing and prior to the filing of a
Notice of Appeal.”

“Here, Plaintiffs allegations of malpractice pertain almost entirely1 to the Defendants’ actions or inactions taken during the trial which was held from June 23 to July 16, 2015. (Am.
Cmplt. at 118.) The statute of limitations for legal malpractice arising from the trial expired on July 16, 2018. (CPLR 214[6].) Plaintiffs attempted reliance on the continuous representation doctrine is unavailing (NYSCEF Doc No. 32, Opposition, at 4-5; NYSCEF Doc No. 27, Pl.’s Affidavit), as Plaintiff fails to demonstrate the existence of “clear indicia of an ongoing,  continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice.” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [2d Dept 2017].) To the contrary, Plaintiff’s affidavit reaffirms that the alleged malpractice took place solely during the 2015 trial, as Plaintiff fails to note any further relationship between her and Defendants after the trial’s conclusion. (NYSCEF Doc No. 27, Pl.’s Affidavit, at 1, 21-23.) As such, Defendants’ motion to dismiss pursuant to CPLR 3 211 [ a J[ 5] is granted, and all allegations of Defendants’ legal malpractice committed during the 2015 trial are barred by the statute of limitations.”

The Appellate Division reversed the grant of summary judgment to defendants in Alrose Steinway, LLC v Jaspan Schlesinger, LLP  2022 NY Slip Op 03310 Decided on May 19, 2022 Appellate Division, First Department, knocking out each of the underpinnings.

“Plaintiff claims that defendants negligently failed to advise it that an amendment to a commercial lease would extinguish its purchase option upon sale of the premises and that, but for defendants’ negligence, it would not have signed the amendment but would have exercised its purchase option as of right between 2023 and 2024, acquiring the premises for no more than $11.4 million. It is undisputed that after the amendment was executed, the landlord received a bona fide third-party purchase offer and plaintiff exercised its right of first refusal, purchasing the premises for $14.5 million in 2016.

Issues of fact exist as to each element of plaintiff’s legal malpractice cause of action (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Defendants’ email attaching a marked-up copy of the relevant lease section does not establish as a matter of law that defendants advised plaintiff as to the meaning of the amendment, and the parties dispute the oral advice that was provided by defendants. Contrary to defendants’ contention, the fact that plaintiff’s agent read the amendment does not establish as a matter of law that defendants were not negligent (see Bishop v Maurer, 9 NY3d 910 [2007]; see e.g. Kram Knarf, LLC v Djonovic, 74 AD3d 628, 628 [1st Dept 2010]; Fielding v Kupferman, 65 AD3d 437 [1st Dept 2009]). Any evidence that plaintiff’s agent, a sophisticated businessman, knew or should have known that the amendment was substantive despite defendants’ advice that it was “housekeeping” does not disprove defendants’ negligence but is evidence that can be offered in mitigation of damages (see e.g. SF Holdings Group, Inc. v Kramer Levin Naftalis & Frankel LLP, 56 AD3d 281, 282 [1st Dept 2008]; Mandel, Resnik & Kaiser, P.C. v. E.I. Elecs., Inc., 41 AD3d 386, 388 [1st Dept 2007]).

Plaintiff’s theory of proximate cause is not impermissibly based on gross speculation as to future events (see e.g. VPC Projects, LLC v Golenbock Eiseman Assor Bell & Peskoe, LLP, 191 AD3d 623 [1st Dept 2021], lv denied 37 NY3d 909 [2021]). The fact that plaintiff sent the signed lease to the landlord without defendants’ knowledge does not as a matter of law refute causation. Defendants also failed to establish as a matter of law that plaintiff would not have been able to exercise its purchase option in 2023-2024. They also failed to establish as a matter of law that plaintiff was not actually damaged as a result of their negligence or that those damages were not ascertainable. To the extent defendants argue that plaintiff lacks standing, they waived that argument by failing to assert lack of standing in their answer or their pre-[*2]answer motion to dismiss (see CPLR 3211[a][3], [e]).”

A child dies and a claim of medical malpractice ensues.  The parents consent to an autopsy and certain of the child’s organs are not returned.  Apparently the medical malpractice claim founders in the absence of examination of the organs, besides which, the parents want to bury them.  They sue their personal injury law firm in Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C.  2022 NY Slip Op 02994 Decided on May 4, 2022 Appellate Division, Second Department.

“The plaintiffs commenced this action against the defendant law firm, which had represented the plaintiffs in connection with a prior action to recover damages for medical malpractice in connection with the birth of their child (hereinafter the decedent). The plaintiffs alleged that they “retained the defendant to recover all of the organs removed” during an autopsy of the decedent which was conducted by New York Methodist Hospital (see Marinelli v New York Methodist Hosp., ___ AD3d ___ [decided herewith]), and “to pursue an action for medical malpractice.” In the first cause of action in the complaint, the plaintiffs alleged that the defendant failed to take certain steps to recover the subject organs, and that “had the defendant timely pursued recovery of the [subject] organs, the organs would have been available for return and burial and in fact, New York Methodist Hospital would have returned the organs to the plaintiffs for such burial.”

“Here, the complaint failed to adequately allege that the defendant’s breach of its professional duty proximately caused the plaintiffs to sustain actual damages. The plaintiffs alleged that New York Methodist Hospital (hereinafter the hospital) would have agreed to return the subject organs to the plaintiffs if the defendant had taken certain steps after it was retained. However, the plaintiffs’ contention “rests on speculation as to how [the hospital] would have responded to these [steps]” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848).

In support of its motion to dismiss the first cause of action in the complaint, the defendant submitted, among other things, a consent form (hereinafter the consent form), which was executed by the plaintiff Vito Marinelli. As we have determined in a related appeal (see Marinelli v New York Methodist Hosp., ___ AD3d ___ [decided herewith]), the consent form explicitly granted the hospital the authority to retain and dispose of the subject organs so long as the hospital considered such actions “appropriate” for the stated purpose of the autopsy, which included the general goal of “furthering medical knowledge.” The consent form thereby conferred “discretionary” authority on the hospital to determine “whether to remove and retain an organ for further [*2]examination and testing” (Cansev v City of New York, 185 AD3d at 896; see Shipley v City of New York, 25 NY3d 645, 654; cf. Zhuangzi Li v New York Hosp. Med. Ctr. of Queens, 147 AD3d 1115, 1117). The plaintiffs do not allege that they retained the defendant before the hospital exercised its discretion in this matter pursuant to the terms agreed upon in the consent form. In light of the discretion imparted by the consent form, “the plaintiff[s’] contention that the alleged malpractice resulted in legally cognizable damages is conclusory and speculative inasmuch as it is premised on decisions that were within the sole discretion of the [hospital]” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848; see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 436; Dempster v Liotti, 86 AD3d at 180; Hashmi v Messiha, 65 AD3d at 1195; Wald v Berwitz, 62 AD3d at 787; Holschauer v Fisher, 5 AD3d at 554; Giambrone v Bank of NY, 253 AD2d 786, 787; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443; Dupree v Voorhees, 68 AD3d 810, 812-813). Under the circumstances, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the first cause of action in the complaint. Accordingly, we affirm the first order appealed from, dated July 13, 2017.”

In a very short decision, Supreme Court’s denial of dismissal was affirmed.  TF Lending, LLC v Mavrides, Moyal, Packman & Sadkin, LLP  2022 NY Slip Op 02946  Decided on May 03, 2022  Appellate Division, First Department stands for the proposition that an attorney working in a firm can be personally liable as well as the firm.

“Defendants do not dispute that the complaint, which asserts a cause of action for legal malpractice, sufficiently alleges that Weinberger, an associate attorney, acted negligently while performing legal services on behalf of defendant law firm. Thus, dismissal of the complaint as against Weinberger is not warranted under the Partnership Law (Partnership Law § 26[c][i]; see e.g. Scarborough v Napoli, Kaiser & Bern, LLP, 63 AD3d 1531, 1532 [4th Dept 2009]) or the common-law doctrine of respondeat superior (see Reliance Ins. Co. v Morris Assoc., 200 AD2d 728, 730 [2d Dept 1994]; Jones v Archibald, 45 AD2d 532, 535 [4th Dept 1974]; accord Restatement [Third] of Agency § 7.01 [2006]). “

Genesis REOC Co., LLC v Poppel  2022 NY Slip Op 02947 Decided on May 03, 2022 Appellate Division, First Department is a case in which Plaintiff’s affidavit was prominently relied upon by the Court in determining that there was  scheme in place rather than an error of judgment.  The affidavit also demonstrated negligent representation.

“Defendants’ argument that the amended complaint does not allege facts sufficient to establish an attorney/client relationship is unavailing, given the affidavits by plaintiffs’ principal, Andrew Stone, submitted in opposition to defendants’ motions, describing the parties’ relationship and defendants’ agreement to represent plaintiffs (see Rushaid v Pictet & Cie, 28 NY3d 316, 327 [2016]). Nor is it dispositive that plaintiffs and the Williams Defendants did not have a retainer agreement with respect to the engagement, given Stone’s explanation of the agreement he had with the Williams Defendants, the advice they gave him, the acts he undertook as part of the Williams Defendants’ engagement, and his reliance on their advice (see Pellegrino v Oppenheimer & Co. Inc., 49 AD3d 94, 99 [1st Dept 2008]).

The amended complaint and the affidavits sufficiently allege negligent representation. Plaintiffs allege that defendants had an undisclosed scheme to advance the interests of nonparty Karim Hutson and his wholly owned entities over plaintiffs’ interests, that they structured their investments in the relevant real estate projects so that the economic benefits of those projects were diverted to Hutson, and that they failed to disclose their conflict of interest while assuring plaintiffs that their financial interests would be protected (see e.g. Yuko Ito v Suzuki, 57 AD3d 205, 207-208 [1st Dept 2008]).

The amended complaint and the affidavits sufficiently allege proximate cause. Plaintiffs allege not simply that defendants made an error in judgment but that they actively and surreptitiously assisted Hutson in diverting funds away from plaintiffs (see Lappin v Greenberg, 34 AD3d 277, 279 [1st Dept 2006]). To the extent defendants rely upon evidence that other factors contributed to the loss, that simply raises an issue of fact not to be determined on the pleadings (Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin, LLC, 46 AD3d 354, 355 [1st Dept 2007]).”