Walk v Kasowitz Benson Torres LLP, 2022 NY Slip Op 50031(U) Decided on January 20, 2022 Supreme Court, New York County Borrok, J.  The claims were that the attorneys failed adequately to advise on the settlement of an employment dispute, costing Plaintiff up to $ 60 Million.   The claim failed.

“Upon the foregoing documents and for the reasons set forth on the record (1.18.22), the motion to dismiss pursuant to CPLR 3211(a)(1) and (7) must be granted. The gravamen of the complaint against Kasowitz Benson Torres LLP and Marc E. Kasowitz (collectively, hereinafter, the Defendants) is that Charlie Walk alleges that he entered into a certain Settlement Agreement (hereinafter defined) without being fully informed by counsel as to the meaning of the Settlement Agreement and his alternatives for not settling such that if he had been fully informed he would have restored his reputation and would have gone on to earn approximately $60 million over the course of the next few years. At its core, Mr. Walk complains that the Defendants did not make certain arguments to Universal Music Group (UMG), his former employer, when they were investigating serious public sexual harassment and assault claims made against him and otherwise advised him to accept the Settlement Agreement which he now thinks was inadequate. The arguments fail. Dismissal is required because the entire premise of this lawsuit is based on a false narrative. The substantial documentary evidence in the record consisting of emails sent by Mr. Walk or letters sent by the Defendants on his behalf is such that the facts are simply not as Mr. Walk alleges.

To wit, the documentary evidence (CPLR 3211[a][1]) unequivocally establishes (i) that [*2]the Defendants did in fact make the very arguments that Mr. Walk asserts were not made to UMG, (ii) that the Defendants were not the only lawyers providing advice to him when he entered the Settlement Agreement, and (iii) that he has failed to state a claim (CPLR 3211[a][7]) because, among other things, his interpretation of his rights under his Employment Agreement (hereinafter defined) is wrong. He was not entitled to his 2017 bonus in the event of a for cause firing by UMG. Additionally, the emails and letters in the record firmly establishes that Mr. Walk was well aware of the very issues that he now feigns a lack of knowledge of and that these very issues were discussed with the Defendants and his other lawyers. Mr. Walk also fails to allege facts which would suggest that he could prove his case within a case and achieve a better result than the Settlement Agreement (Katz v Essner, 136 AD3d 575, 576 [1st Dept 2016]).

Although Mr. Walk may allege today that he wishes that he pursued a different legal strategy, and further contested the many detailed sexual harassment and assault claims made against him, this is not actionable (Brook Plaza Ophthalmology Assoc., P. C. v Fink, Weinberger, Fredman, Berman & Lowell, P. C., 173 AD2d 170, 171 [1st Dept 1991]). His decision can not be said to have been uninformed or based on faulty advice. The fact that he resigned from his employment from the television program The Four: Battle for Stardom prior to hiring the Defendants and in the wake of these detailed allegations against him highlights the speculative failure of his claim against these Defendants. Finally, Mr. Walk’s envious allegation that others accused of misconduct have received more money in their settlements with their employers is simply not a fact leveled against these Defendants that they gave him bad advice to settle based on the specific allegations made against him and the shroud of predatory conduct with which he was cloaked.”

Hirsch v Walder 2022 NY Slip Op 00124  Decided on January 11, 2022
Appellate Division, First Department is an example of the depth to which the Courts go in making determinative decisions on early-pleading motions to dismiss.  In this case, even though unstated, the decision is based upon CPLR 3211(a)(1).  The Court reviewed some documents provided by the attorneys and decided, as a matter of law, that plaintiffs could not have won the underlying claim against their insurers.

“Defendants’ documentary evidence — in particular, the insurance policy at issue in the underlying action brought by plaintiff against the insurer and the condominium — demonstrates conclusively that plaintiff could not have prevailed in that action even if defendants had not missed the contractual limitations period. Thus, plaintiff failed to show, as required to state a cause of action for legal malpractice, that but for defendants’ conduct he would have prevailed in the underlying action (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]).

While defendants did not commence suit against the insurance company within the two-year period of the policy after the 2014 loss, the documentary evidence establishes that the policy afforded no coverage for plaintiff’s loss. The policy unambiguously limits coverage to premises in which the insured resides and it is undisputed that plaintiff did not reside at the Condo Unit at the time of the loss (see Metropolitan Prop. & Cas. Ins. Co. v Pulido, 271 AD2d 57 [2d Dept 2000]). In light of this conclusion, we need not address the remaining arguments raised by defendants on appeal.”

When does the statute of limitations commence for a legal malpractice claim?  In short, it commences on the date of the mistake.  It can be tolled by continuous representation.  In Ross v Mashkanta, LLC  2021 NY Slip Op 32873(U) December 23, 2021 Supreme Court, Kings County
Docket Number: Index No. 508310/2019 Judge: Carl J. Landicino, the limits of continuous representation were tested, and plaintiff lost.

“In relation to the related foreclosure action, the Plaintiff claims that Mascolo failed to appear on a summary judgment motion which was granted on Plaintiffs default. Summary judgment, in the related litigation, was granted on default against the Plaintiff on July 14, 2010.
The Plaintiff also claims that these failures subjected the Plaintiff to a judgment of foreclosure in relation to his property. The Plaintiff contends that Mascolo failed to appear or oppose a motion/application for judgment of foreclosure. The Plaintiff contends that, as a consequence, a judgment of foreclosure and sale was issued on June 20, 2012. The instant proceeding was commenced against Mascolo on April 12 2019, more than six years after judgment was entered in the foreclosure litigation. The Plaintiff alleges that the interval between the award of the judgment and commencement of this proceeding is irrelevant because the continuous representation doctrine applies.

The doctrine of continuous representation applies when there is “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 Industries, Inc. v. Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789, 51 N.Y.S.3d 183, 185 [2d Dept 2017] quoting Luk Lamellen U Kupplungbau GmbH v. Lerner, 166 AD2d 505, 506- 507, 560 N.Y.S.2d 787 [2d Dept 1990]). However, the Plaintiff has repeatedly represented that his relationship with Mascolo terminated in November of 2012, when he retained new counsel to represent him in the foreclosure litigation. The Plaintiff alleged that,

…subsequent to defendant Mascolo allowing the action in foreclosure to go to default judgment and ultimately to a judgment of foreclosure and sale which was filed July 3, 2012, defendants Levy and Nau substituted in for third-party defendant Mascolo.
As a consequence of Defendant Mascolo’s failure to represent his interests, in or about November 2012, Plaintiff retained Defendants Levy and Nau, doing business as Levy and Nau PC, to represent him in the action brought against him by Mashkanta, and in that capacity, to move in that action to stay the foreclosure and sale. Plaintiff was unaware of any prior history of relationships and/or transactions among Mashkanta, Mascolo, Levy and Nau at the time he retained Levy and Nau to represent him.

(See First Amended Verified Complaint at paragraph 61-62, NYSCEF Doc. No. 12, 13 1).

Accordingly, the doctrine of continuous representation is inapplicable here. This proceeding was commenced after the statutory limitation period expired. Therefore, the ninth cause of action for malpractice is dismissed.”

Plaintiffs  in 286 Corbin Owners Corp. v Berger, 2022 NY Slip Op., 30018(U) January 3, 2022 Supreme Court, Kings County et Number: Index No. 513265/2020 Judge: Wavny Toussaint suffered storm damage from Sandy, and hired defendant attorneys to litigate.  Things went south from there.  The claim languished, the statute ran, and there was no case left.  Will a legal malpractice claim survive motion practice?

“Here, to, the extent that plaintiff alleges that the Berger Defendants carelessly or negligently recommended that it sue Joglo and Toussie and/or that the Berger Defendants , negligently failed to sue the proper defen4ants before the expiration of the statute, of limitations (second cause of action), plaintiff states a claim for legal malpractice. The assertion that plaintiff must allege and identify the “correct” defendant in its pleading to state a claim for malpractice is without any legal support. In any event, whether plaintiff can ultimately prevail on these allegations is not relevant on this pre-answer motion to dismiss (see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo,
113 AD3d 587, 589 [2d Dept 2014]). The court also declines to dismiss plaintiff’s third cause of action alleging that the Berger Defendants collected legal fees and commenced the underlying action when they knew or should have known that the action had no merit. Defendants do not address the merits of this claim and the proffered documentary evidence does not establish a defense to said claim as a matter of law. “

In a legal malpractice case, Defendants got a WebCivilSupreme notification that the motion was adjourned to August 24, 2020.  That’s where things started to go wrong.

In Reem Contr. v Altschul & Altschul  2022 NY Slip Op 00021 Decided on January 04, 2022 Appellate Division, First Department the Appellate Division reversed and gave defendants a second chance.

”

Order, Supreme Court, New York County (Kelly O’Neill Levy, J.), entered July 14, 2020, which, upon defendant’s default, denied defendants’ motion for summary judgment on their account stated counterclaim and granted plaintiffs’ motion for summary judgment as to liability on their legal malpractice claim, and order, same court and Justice, entered August 10, 2020, which denied defendants’ letter motion to vacate the July 2020 order and to allow them to submit opposition to plaintiffs’ motion, unanimously reversed, on the facts, without costs, defendant’s letter motion granted and the matter remanded for a determination on the merits.

On this record, the motion court should not have entered a default and should have permitted defendant an opportunity to oppose plaintiff’s motion for summary judgment on the merits. We note that the parties received a notice from the court via

the “e-watch” email service that there was a future appearance on the motions scheduled for August 24, 2020. However, the court issued its order on July 13, 2020. “

While only mentioning legal malpractice in passing, Morrow v Brighthouse Life Ins. Co. of NY  2021 NY Slip Op 07373.  Decided on December 23, 2021, Appellate Division, Fourth Department is an interesting primer on statutes of limitations.

“We agree with defendants that Supreme Court (Ogden, J.) erred in denying those parts of the motion seeking to dismiss the fourth, fifth, sixth, and tenth causes of action as barred by the applicable statute of limitations. Those causes of action were for, respectively, breach of contract, breach of fiduciary duty, conversion, and aiding and abetting breach of fiduciary duty. Contrary to both plaintiff’s position in opposition to the motion and the court’s conclusion, those causes of action did not accrue at the time the criminal proceeding terminated. The termination of a criminal proceeding is relevant for claims for malicious prosecution and legal malpractice arising out of a criminal proceeding (see Britt v Legal Aid Socy., 95 NY2d 443, 445-448 [2000]). For those claims, a plaintiff is required to make a showing of innocence, and thus the claims do not accrue until the plaintiff can assert the element of his or her innocence on the criminal charges (see id.). Plaintiff here does not need to assert her innocence on the criminal charges as an element of the causes of action for breach of contract, conversion, and breach of fiduciary duty (see generally Bratge v Simons, 167 AD3d 1458, 1459 [4th Dept 2018]).

The statute of limitations for a cause of action for breach of contract is six years (see CPLR 213 [2]). “[A] breach of contract cause of action accrues at the time of the breach,” even if the damage does not occur until later (Ely-Cruikshank Co. v Bank of Montreal, 81 NY2d 399, [*2]402 [1993]). Here, any breach occurred when the policy was issued in May 2006. The policy stated that the beneficiary was named in the application and referred the reader to an attached copy of the application, which listed the son’s girlfriend as a beneficiary. Inasmuch as plaintiff commenced this action more than six years after the policy was issued, the breach of contract cause of action is untimely. The fact that plaintiff alleged that she did not discover the breach until she made a claim under the policy in May 2011 does not compel a different outcome inasmuch as “the breach of contract cause[] of action accrued at the time of the breach, not on the date of discovery of the breach” (Yarbro v Wells Fargo Bank, N.A., 140 AD3d 668, 668 [1st Dept 2016]; see Deutsche Bank Natl. Trust Co. v Flagstar Capital Mkts., 32 NY3d 139, 145-146 [2018]; ACE Sec. Corp., Home Equity Loan Trust, Series 2006-SL2 v DB Structured Prods., Inc., 25 NY3d 581, 593-594 [2015]; Ely-Cruikshank Co., 81 NY2d at 404).

A cause of action for conversion has a three-year statute of limitations (see CPLR 214 [3]) and accrues on the date the conversion takes place (see DiMatteo v Cosentino, 71 AD3d 1430, 1431 [4th Dept 2010]). “A conversion takes place when someone, intentionally and without authority, assumes or exercises control over personal property belonging to someone else, interfering with that person’s right of possession” (Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]). Here, any conversion took place in May 2011, when plaintiff made a claim under the policy and allegedly received less than she was entitled to, and the cause of action is untimely inasmuch as plaintiff commenced this action more than three years later.

With respect to the breach of fiduciary duty causes of action, “where an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213 (8)” (IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139 [2009], rearg denied 12 NY3d 889 [2009]; see Monaghan v Ford Motor Co., 71 AD3d 848, 849-850 [2d Dept 2010]). Even assuming, arguendo, that the breach of fiduciary duty causes of action contain allegations of fraud that are essential to the claims, they are still untimely under CPLR 213 (8). The alleged fraudulent action occurred at the latest when the policy was issued in May 2006, and this action was commenced more than six years later and more than two years after May 2011, when plaintiff discovered the alleged fraudulent action.”