With apologies for the title, Deane v Brodman  2021 NY Slip Op 01842 [192 AD3d 577] March 25, 2021Appellate Division, First Department was dismissed for failure to show a departure.

“Defendants are entitled to summary judgment dismissing the professional negligence claims asserted against them as plaintiff has not offered evidence of a departure from a recognized and accepted professional standard for accountants. “A party alleging a claim of accountant malpractice must show that there was a departure from the accepted standards of practice” (KBL, LLP v Community Counseling & Mediation Servs., 123 AD3d 488, 488 [1st Dept 2014]). Plaintiff does not identify any applicable professional standard which would have required defendants to inquire whether the transactions at issue were approved in accordance with the procedures contained in the operating agreement. To the contrary, the standards proffered by plaintiff’s expert permit an accountant engaged for tax preparation services to rely on information furnished by the taxpayer unless it appears to be incorrect, incomplete or inconsistent. There is no allegation here that the information provided to defendants was incorrect, incomplete or inconsistent.”

As often happens, Courts and Appellate Courts determine that a claim of deceit often find the claims “conclusory” and dismiss.  Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP  2021 NY Slip Op 06852 [200 AD3d 785] December 8, 2021 Appellate Division, Second Department is one such case.

“In a prior lawsuit, the plaintiff sought to recover damages against the Town of Babylon based upon unlawful entry on his property by various individuals using a public access way from a public road. That prior lawsuit was settled by a stipulation in which the Town agreed, inter alia, to erect a fence, then litigation ensued regarding the Town’s failure to erect the fence. Thereafter, the plaintiff commenced this action against the defendants, who were the attorneys representing the Town in the prior proceedings. The plaintiff alleges, among other things, that the defendants intentionally deprived him of his right to have the fence erected in a timely manner, and that they conspired using fraud and deceit to prevent the installation of the fence. The complaint purports to assert causes of action alleging, inter alia, abuse of process, conspiracy, fraud/collusion, respondeat superior, violation of Judiciary Law § 487, tortious interference with contract, trespass, [*2]and conversion. In an order dated December 7, 2017, the Supreme Court granted the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the complaint. A judgment entered upon the order on February 22, 2018, is in favor of the defendants and against the plaintiff dismissing the complaint. The plaintiff appeals.”

“Pursuant to Judiciary Law § 487, an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” In order to establish liability under section 487, the plaintiff must show that the defendant acted with intent to deceive him or her or the court (see Gillen v McCarron, 126 AD3d 670, 671 [2015]; Cullin v Spiess, 122 AD3d 792, 793 [2014]; Dupree v Voorhees, 102 AD3d 912, 913 [2013]). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2018], affd 35 NY3d 173 [2020]). Here, the plaintiff’s conclusory allegations were insufficient to state a cause of action alleging violation of Judiciary Law § 487 (see Klein v Rieff, 135 AD3d 910, 912 [2016]; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 759 [2014]).”

Attorneys who defend doctors in Office of Professional Medical Conduct proceedings work in a complex rule-driven atmosphere.  Frequently negative outcomes lead to legal malpractice cases.  In Manouel v Dembin  2022 NY Slip Op 00725 Decided on February 03, 2022
Appellate Division, First Department the case ended with summary judgment.

“Plaintiff fails to articulate any persuasive basis to disturb the motion court’s order. Although defendant Ralph Erbaio moved for summary judgment more than 120 days after the note of issue was filed, his motion was timely in light of the pandemic-related Executive Orders tolling motion deadlines (CPLR 3212[a]; Executive Order Nos. 202.8, 202.67 [9 NYCRR 8.202.8, 8.202.67]). The motion court applied the proper standard of care to defendants in this legal malpractice action (see Bassim v Halliday, 234 AD2d 628 [3d Dept 1996], appeal dismissed 89 NY2d 1001 [1997]; see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). The record establishes, as a matter of law, that defendants did not have time to pre-clear the consent agreement between plaintiff and New York State Office of Professional Medical Conduct (OMPC) with the New York State Office of Medicaid Inspector General (OMIG). Contrary to plaintiff’s contention, his expert’s conclusory affidavit failed to raise an issue of fact.

In view of the foregoing, we do not reach plaintiff’s argument regarding his tax returns, and we decline to consider any of the arguments plaintiff raises for the first time in his reply brief.”

Postiglione v Sacks & Sacks, LLP  2022 NY Slip Op 30148(U) January 19, 2022 Supreme Court, Kings County Docket Number: Index No. 513779/19 Judge: Karen B. Rothenberg is an interesting case, both for its complexity as well as for the level of scrutiny given by the Court in these two CPLR 3211 pleading sufficiency motions.  It involves a lost construction accident case involving the US Government.

“Plaintiff James Postiglione (Postiglione) and his wife, Joni Postiglione (collectively plaintiffs), commenced this legal malpractice action against their former attorneys for allegedly failing to sue the proper parties after Postiglione was injured on April 13, 2016 while working at a construction site at Floyd Bennett Field in Brooklyn (Hangar B or the site). Postiglione was injured when a second-floor concrete floor walkway, upon which he was standing, collapsed. The site is owned by the federal government (government) and managed by the United States National Park Service (NPS). NPS contracted with Nagan Construction (Nagan) to repair storm damage caused by Super Storm Sandy. Nagan, in turn, subcontracted with James Postiglione’s company, Global International Windows, LLC (Global) to remove and install windows at Hangar B. ”

“The original complaint further alleged that prior to ordering windows for the project, Postiglione was allegedly “required” to meet with “Theresa,” an NPS employee, who walked him up to the site and told him where he was and was not permitted to walk while performing work. Prior to starting work, Postiglione was again required to meet with Theresa, who reminded him where he was and was not permitted to walk. Postiglione  allegedly fell in an area where Theresa had not prohibited him from walking but was a location which was not the subject of his window replacement contract. The original complaint alleged that the federal government was aware of the deteriorated condition of Hangar B’s second floor and knew that a subcontractor, such as Postiglione, would have to traverse dangerous areas to perform repairs because the federal government continued to occupy the site while repairs were being made. And that the federal government had a duty to provide a reasonably safe passageway for all invitees, including contract workers, and that it remained liable for the safety of business invitees, as the federal government owned, operated and maintained the site.”

““The doctrine of the ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” (Erickson v Cross Ready Mix, Inc., 98 AD3d 717, 717 [2d Dept 2012]; Martin v City of Cohoes, 37 NY2d 162, 165 [1975]). “The doctrine applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision” and “to the same questions presented in the same case” (Erickson, 98 AD3d at 717; Baldasano v Bank of N.Y., 199 AD2d 184, 185 [2d Dept 1993]; see also U.S. Bank National Association v Moss, 186 AD3d 1753, 1753 [2d Dept 2020]; State v Winkle, 179 AD3d 1121, 1126 [2d Dept 2020]).

Here, defendants’ motion to dismiss the amended complaint is denied based on the law of the case because the amended complaint contains the same allegations as the original
complaint, which was previously upheld by the court’s 2020 Order. Accordingly, the law of the case doctrine precludes dismissal of the legal malpractice cause of action asserted in
the amended complaint based on defendants’ alleged failure to sue the federal government prior to the expiration of the statute of limitations in the Underlying Personal Injury Action because the very same cause of action in the original complaint was previously upheld by the court.

In addition, the amended complaint includes additional allegations regarding the federal government’s potential liability under the FTCA in the Underlying Personal Injury Action based on the Flash Report, in which the IG noted that the aircraft hangers were not secured, were in disrepair and posed a safety risk to the public and directed the NPS Director to remedy the defect. If plaintiffs can prove that the NPS Director, a federal employee, failed to remedy the defects, and that this failure was the proximate cause of Postiglione’s injuries, then defendants may be liable for legal malpractice. If a federal employee was aware of a dangerous condition and failed to remedy it, such failure to remedy or warn is not a decision “of the nature and quality that Congress intended to shield from tort liability” (United States v S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 US 797, 813 [1984]).”

Davis v Farrell Fritz, P.C. 2022 NY Slip Op 00399 Decided on January 26, 2022 Appellate Division, Second Department deals with fraud in very big numbers.  Dismissal under CPLR 3211 was reversed.  Here are the facts for the second set of attorneys:

“In 2009, the plaintiffs’ decedent, Charles Robert Allen III (hereinafter Allen) through his son Luke Allen, as guardian for the property management of his father, commenced an action in federal district court against Christopher Devine, alleging, inter alia, that Devine fraudulently induced Allen to invest $70 million in a certain broadcast company and that Devine diverted such sum for his own personal use (hereinafter the Devine action). Following Allen’s death on March 9, 2011, Grace Allen was appointed executrix of his estate and substituted as the plaintiff in the action. The executrix then retained the defendants Farrell Fritz, P.C., and John R. Morken (hereinafter together the Farrell Fritz defendants) and the defendants Campolo, Middleton & McCormick, LLP, Joseph N. Campolo, and Patrick McCormick (hereinafter collectively the CMM defendants), and substituted them as counsel in the action in place of Cohen & Gresser LLP (hereinafter C & G). The Devine action later settled for $750,000. The settlement agreement also encompassed a related action against Devine commenced in the Supreme Court, New York County, by Excelsior Capital, LLC (hereinafter Excelsior), a commercial lender controlled by Richard Davis (hereinafter the Excelsior action), which had been awarded damages in excess of $20 million on its breach of contract cause of action against Devine.

Thereafter, Davis and Thaddeus Mack Allen (hereinafter Thaddeus), as co-administrators of Allen’s estate under limited letters of administration issued April 10, 2017, commenced the instant action against the Farrell Fritz defendants and the CMM defendants. The complaint alleged, inter alia, that the defendants committed legal malpractice by failing to assert causes of action against Devine’s alleged co-conspirator, attorney Robert E. Neiman, and Neiman’s law firm, Greenberg Traurig, LLP (hereinafter collectively the Neiman defendants), and against C & G for its failure to assert causes of action against Neiman. The Farrell Fritz defendants moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the amended complaint insofar as asserted against it, and the CMM defendants separately moved to dismiss the amended complaint insofar as asserted against it on similar grounds. In an order dated November 20, 2017, the Supreme Court granted the motions. Clerk’s judgments were later entered upon the order dismissing the amended complaint. The plaintiffs appeal from the clerk’s judgments.”

“”[A] legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice” (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 39). Here, the fourth and fifth causes of action asserted against the CMM defendants allege legal malpractice premised, respectively, on the CMM defendants’ failure to assert legal malpractice causes of action against C & G or to advise the executrix of the existence of legal malpractice causes of action against C & G, and to advise the executrix of the Farrell Fritz defendants’ legal malpractice in failing to recommend that a timely action be commenced against Neiman and his firm and/or C & G. Contrary to the plaintiffs’ contention, the CMM defendants’ documentary evidence demonstrates conclusively that the acts that they allegedly failed to perform, as asserted in the fourth and fifth causes of action, were beyond the scope of the retainer agreement, which limited the CMM defendants’ representation to prosecuting the Devine action. Accordingly, the retainer agreement utterly refutes the plaintiffs’ contention with respect to the scope of the CMM defendants’ representation in that regard (see CPLR 3211[a][1]; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850), and the Supreme Court properly directed dismissal of the fourth and fifth causes of action.

However, the third cause of action was not subject to dismissal pursuant to CPLR 3211(a)(1). That cause of action, which alleged that the CMM defendants committed legal malpractice, inter alia, by failing to assert causes of action alleging fraud and breach of fiduciary duty based on fraud against Neiman and his firm “in the Devine action.” The subject retainer, standing alone, failed to resolve conclusively all questions of fact regarding the scope of the CMM defendants’ representation as to the subject matter of the third cause of action (see Cali v Maio, 189 AD3d 1337, 1338; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d at 39).

The first and third causes of action allege, in part, that had the defendants advised the executrix that causes of action could have been asserted against Neiman and his firm, “the Executrix would have authorized the [ ] Defendants to pursue those claims.” There is no merit to the defendants’ contention that those causes of action should have been dismissed because the plaintiffs fail to plead the requisite “but for” causation since the damages are based on speculation as to whether the executrix would have authorized and funded such an action (cf. CPLR 3211[a][7]). While “[c]onclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 [citations omitted]; see Stafford v Reiner, 23 AD3d 372, 372), here, there is support in the record (cf. Stafford v Reiner, 23 AD3d at 372) for the allegation that the executrix would have authorized the pursuit of causes of action against Neiman.

The defendants’ contention that the action is barred by the prior dismissal of similar fraud allegations is without merit. Neiman was not a named defendant in the Excelsior action, and the defendants failed to demonstrate that Excelsior and the plaintiffs are in privity. Moreover, the defendants failed to demonstrate that any of the issues of fact necessarily decided in the prior litigation are identical to those issues which are critical to their defense in the present litigation (see RENP Corp. v Embassy Holding Co., 229 AD2d 381, 382-383). Accordingly, the Supreme Court erred in directing dismissal of the amended complaint, in effect, pursuant to CPLR 3211(a)(5).”