When cases are dismissed, they are dismissed with or without prejudice.  This term means whether the matter can be brought again.  If dismissed without prejudice, then the plaintiff is permitted to recommence the action.  Traditionally, dismissals at the beginning of the case are based upon the pleadings.  Some of the dismissals (as in CPLR 3211(a)(7)) are without prejudice; some (as in CPLR 3211(a)(1)) are with prejudice.

In Pritsker v Zamansky LLC  2021 NY Slip Op 02767 Decided on May 04, 2021 Appellate Division, First Department we see the latter.

“This action is barred by the doctrine of res judicata (claim preclusion) (see generally Matter of Hunter, 4 NY3d 260, 269 [2005]). The dismissal of plaintiff’s 2017 action was on the merits, and not, as plaintiff argues, based on pleading defects (Pritsker v Zamansky LLC, Sup Ct, NY County, Nov. 19, 2018, Nervo, J., index No. 150595/17; see Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558 [1st Dept 1989]). Thus, plaintiff is barred from asserting his previously-pleaded causes of action for legal malpractice, breach of fiduciary duty, and negligence. Plaintiff is also barred from asserting his “new” fraudulent inducement and breach of fiduciary duty causes of action, because at bottom, they arise out of the same transactions as his previously pleaded causes of action. Claim preclusion bars plaintiff’s claims against Jacob Zamansky as well as Zamansky LLC because both were named as defendants in the 2017 action and Jacob Zamansky is in privity with Zamansky LLC (see Rojas v Romanoff, 186 AD3d 103, 108, 112 [1st Dept 2020]). Based on the foregoing, we do not reach the other bases defendants articulate for dismissal.”

In this matrimonial action, Defendant attorneys were retained 8 months + after the Note of Issue.  The custody trial started the day after retention and the financial trial thereafter.  Plaintiff claims in Lijun Feng v Passonneau  2021 NY Slip Op 31507(U) April 29, 2021 Supreme Court, New York County Docket Number: 156765/2020 Judge: Richard G. Latin that it was a departure to permit a joint forensic accounting into evidence.  The Court disagrees.

“Here, it is evident that plaintiff’s complaint must be dismissed as it consists entirely of speculation of future events and the second guessing of her prior attorney’s reasonable strategic choices. Defendants, who were not plaintiff’s first counsel, were retained on the eve of the
custody trial, eight months and twenty days after the note of issue was filed, and after plaintiff and her ex-husband jointly retained the forensic accountant. The decision to stipulate to the admission of the jointly retained forensic accountant’s report and then object to the report’s
conclusions, as detailed by the appellate record, is not an unreasonable strategic choice.

Additionally, it is entirely speculative to assume that the court would have vacated the note of issue, or that the ultimate outcome would have been better for plaintiff if defendants did not stipulate to the report’s inclusion, if documents that were already listed as sources of
information for the report were offered as separate evidence, if the report’s author would have been cross-examined, or if defendants proffered another expert to testify using plaintiff’s alternative marital property valuation (see F.L. v J.M., 173 AD3d 428 [1st Dept 2019](the
Appellate Court in the underlying action found that “the claimed patent errors in the report, such as omissions of certain stock grants, can be explained by FRA’s mandate to value only the stock options and GSUs held by defendant as of the date of the commencement of this action);
Greenwald v Greenwald, 164 AD2d 706 [1st Dept 1991]). “

There is an old (very old) tension between doctors and attorneys that we believe stems from antediluvian times.  Lawyers frequently prosecute claims against doctors and (reportedly) doctors loathe attorneys.  Whether or not true, legal malpractice claims arising from cases involving the Office of Professional Medical Conduct (DOH) and doctor discipline often end up in a legal malpractice setting afterwards.

Manouel v Dembin  2021 NY Slip Op 31536(U) May 5, 2021 Supreme Court, New York County Docket Number: 155675/2017 Judge: David Benjamin Cohen is but one example.

“Plaintiff is a licensed orthopedist. In or around September 2011, the New York State Office of Professional Medical Conduct (“OPMC”) began an investigation into Plaintiffs medical practices upon receiving complaints of misconduct from five of his former patients. The Dembin Defendants and Erbaio represented Plaintiff during parts of this  investigation. ”

“This Court concludes that Defendants have demonstrated that they used reasonable skill commonly possessed by a member of the legal profession and that any alleged breach was not the proximate cause of Plaintiff’s damages. Therefore, Plaintiff’s legal malpractice claim is
dismissed as against all Defendants. Plaintiff’s breach of contract and breach of fiduciary duty claims arose from the same facts and are duplicative of the legal malpractice claim and, therefore, are also dismissed (Postiglione v. Castro, 119 AD3d 920, 922 [2d Dept 2014]; Miazga v. Assaf, 136 AD3d 1131, 1135 [3d Dep’t 2016]; Sutch v Sutch-Lenz, 129 AD3d 1141, 1144 [2015]; Town ofN. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749 [2d Dept 2006]).  In light of the aforementioned conclusions, Plaintiff’s motion for summary judgment (Seq. 012) is denied.

Defendants establish with evidentiary proof in admissible form that Plaintiff fails “to meet the ‘case within a case’ requirement,  demonstrating that ‘but for’ the attorneys’ conduct [he] would have prevailed in the underlying matter or would not have sustained any ascertainable damages” (Lieblich v Pruzan, 104 AD3d 462, 463 [1st Dept 2013]; see also Aur, 132 AD3d at 595), and Plaintiff fails to establish the existence of material issues of fact for a trial.”

“Plaintiff fails to show that, had there been a timely appeal before OMIG, such an appeal would have been successful (Coccia v Liotti, 70 AD3d 747, 754 [2d Dept 2010]) and, importantly, it is undisputed that OMIG twice denied pre-clearance requests of Plaintiff’s subsequent counsel Kulb, explaining that its denials were based on the Consent Order that Plaintiff signed with OPMG in which Plaintiff stated that he could not defend against at least one charge of misconduct from the Statement of Charges (Docs. 199, 202).3 Further, in its letter dated July 22, 2015, the Workers’ Compensation Board noted that its suspension relied on the Consent Order “wherein [Plaintiff] could not successfully defend against one of the acts of misconduct alleged” (Doc. 325). Similarly, the loss of hospital privileges was imposed in the
interests of patient welfare and objectives of the hospitals and it is pure speculation that communication with the hospitals prior to the execution of the Consent Order would have rendered a different result (see, e.g., Doc. 175). “Conclusory allegations of damages or injuries
predicated on speculation cannot suffice for a malpractice action” (Holschauer v Fisher, 5 AD3d 553, 554 [2d Dept 2004]). “The fact that … [P]laintiff subsequently was unhappy with the settlement obtained by … [D]efendant[s] does not rise to the level oflegal malpractice (id. at
554). Therefore, Plaintiff’s legal malpractice claims are dismissed against Defendants.”

Not surprisingly, an unopposed motion to dismiss is often granted.  The lack of opposition sometimes is because Plaintiff is pro-se, sometimes because of law office error.  Here, in Melendez v Renfroe, Driscoll & Foster, LLP  2021 NY Slip Op 31462(U) April 29, 2021 Supreme Court, New York County Docket Number: 157344/2019 Judge: W. Franc Perry the motion is the second of two;  the first motion got one set of attorneys out of the case.

“Here, Plaintiffs only allegations against King are that he failed to demand a jury trial in the Surrogate’s Court action and that he advised Plaintiff to retain the former Defendants as trial counsel. (NYSCEF Doc No. 1, Complaint, at iii! 15, 20.) The rest of the allegations against King and the Law Offices of Paul R. King, P.C. are stated as allegations against King and the former defendants as a whole: namely, that Defendants were negligent in failing to call certain witnesses to the stand and for failing to submit a gift tax return into evidence. (Id. at¶ 33, 35, 41, 42.)

In granting Defendants Renfroe, Driscoll & Foster LLP and Patrick Foster’s motion to dismiss, this court ha; already decided. that Plaintiff failed to set forth a cause of action for legal malpractice because he did not show that “but for” the alleged malpractice, he would have
prevailed in the underlying action. First, this court held that the allegations against the Defendants as a whole were insufficient (see NYSCEF Doc No. 40) and as such those allegations are likewise
insufficient as alleged against King as an individual and as against the Law Offices of Paul R. King P.C.

Further, Plaintiff’s only specific allegation against King, that he was negligent in failing to timely demand a jury trial, is insufficient to allege a claim for legal malpractice. Plaintiff simply cannot prove that “but for” the delayed demand, he would have succeeded in the underlying action,
especially considering the record before the Surrogate’s Court and the court’s findings. (See generally NYSCEF Doc Nos. 51, 53, Transcript and Decision.) Even accepting as true the  allegations asserted against King and Law Offices of Paul R. King, P.C., and considering the documentary evidence, Plaintiff’s complaint fails to state a cause of action for legal malpractice because it does not sufficient allege that Defendants’ negligence was the proximate cause of Plaintiff’ damages”.

Plaintiff attorney loses fee case against pro-se client because he could not show substantial compliance with the matrimonial billing rules of 22 NYCRR 1400, et seq in Swergold v. Weinrib  2021 NY Slip Op 02555
Decided on April 28, 2021Appellate Division, Second Department.

“The plaintiff attorney represented the defendant in a matrimonial action, in which the Supreme Court directed the defendant’s former husband to pay the plaintiff an attorney’s fee in the sum of $100,000. Following the former husband’s failure to pay, the plaintiff commenced the instant action, inter alia, to recover on an account stated, alleging that the defendant failed to pay the [*2]plaintiff’s legal fees in connection with the matrimonial action. In an amended verified answer, the defendant asserted counterclaims, including to recover damages for legal malpractice. The plaintiff moved for summary judgment on the complaint and pursuant to CPLR 3211(a) to dismiss the counterclaims. In an order entered March 2, 2017, the Supreme Court, among other things, denied those branches of the plaintiff’s motion which were for summary judgment on the cause of action to recover on an account stated and pursuant to CPLR 3211(a) to dismiss the defendant’s legal malpractice counterclaim.

Thereafter, the defendant made a motion denominated as a motion in limine, inter alia, to preclude the plaintiff from presenting evidence pertaining to legal fees based upon a violation of 22 NYCRR 1400.3. In an order dated July 11, 2018, the Supreme Court treated the defendant’s motion as a motion pursuant to CPLR 3211(a)(7) to dismiss the complaint, and granted the motion to the extent of requiring the plaintiff to demonstrate his compliance with 22 NYCRR 1400.3. In an order dated December 28, 2018, the court determined that the plaintiff failed to demonstrate his substantial compliance with 22 NYCRR 1400.3 and granted the defendant’s motion to dismiss the complaint.

Contrary to the plaintiff’s contention, the Supreme Court properly granted the defendant’s motion to dismiss the complaint based upon the plaintiff’s failure to demonstrate his substantial compliance with 22 NYCRR 1400.3 (see Montoya v Montoya, 143 AD3d 865; Badawi v Alesawy, 135 AD3d 793, 795; Cornish v Eraca-Cornish, 107 AD3d 1322, 1326; Wagman v Wagman, 8 AD3d 263). “

Divorce in wealthy families can be expensive.  Division of significant assets, using teams of lawyers can quickly add up.  Kaufman v Boies Schiller Flexner, LLP  2021 NY Slip Op 31340(U) April 22, 2021 Supreme Court, New York County Docket Number: 154149/2018 Judge: James E. d’Auguste not only cost a lot, it spawned multiple other litigations as well. This case has a good discussion of the elements of breach of contact claims in a legal malpractice setting.

“The breach of contract cause of action is predicated upon defendants’ alleged overbilling practices. According to the complaint, “critical errors, in violation of the terms of the relevant retainer agreements” resulted in substantial overbilling, and defendants charged “[p]laintiff for services that were unnecessary, duplicative or wasteful” (NYSCEF Doc No. 66, ¶¶ 1 and 50).

To sustain a cause of action for breach of contract, the plaintiff must prove the existence of a contract, the plaintiff’s performance, the defendant’s breach, and damages (see Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). “[A] cause of action for breach of contract may be maintained against an attorney ‘only where the attorney makes an express promise … to obtain a specific result and fails to do so’” (Aglira v Julien & Schlesinger, 214 AD2d 178, 185 [1st Dept 2004], quoting Pacesetter Communications Corp. v Solin & Breindel, 150
AD2d 232, 236 [1st Dept 1989], lv dismissed 74 NY2d 892 [1989]; accord Kaplan v Sachs, 224 AD2d 666, 667 [2d Dept 1996], lv dismissed and denied 88 NY2d 952 [1996]).

Applying these principles, the complaint fails to adequately plead a breach of contract claim. First, plaintiff fails to set forth the terms of the BSF Retainer or the BRIR Retainer in the complaint that defendants allegedly breached (see Boies, Schiller & Flexner LLP v Modell, 129 AD3d 533, 534 [1st Dept 2015] [dismissing the defendant client’s counterclaim for breach of contract because the defendant failed to identify the  specific provision of the retainer in which the plaintiff law firm promised to produce a specific result]; Steiner v Lazzaro & Gregory, 271 AD2d 596, 597 [2d Dept 2000] [dismissing a cause of action for breach of contract where the complaint failed to set forth the terms of the retainer agreement]). Second, a close examination of both retainer agreements reveals that defendants did not commit to obtaining a specific result or outcome for plaintiff in the Divorce Proceeding. ”

“Generally, where a breach of contract claim arises out of the same facts and seeks the same or similar damages as a legal malpractice claim, the contract claim must be dismissed (see Courtney v McDonald, 176 AD3d 645, 645-646 [1st Dept 2019]; Roth v Ostrer, 161 AD3d 433, 435 [1st Dept 2018]). That said, a breach of contract claim premised upon the assertion that the “defendants overbilled … and performed unnecessary services … is not duplicative of the legal
malpractice claim” (Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]). “The former claim, unlike the latter claim, does not speak to the quality of defendants’ work” (id.). Hence, the plaintiff must “reasonably allege that the fee bore no rational relationship to the product delivered” (Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015]). Here, plaintiff’s opposition largely consists of complaints about the quality of defendants’
work which then led to the purported overbilling. As discussed earlier, complaints about overbilling based on the quality of an attorney’s work cannot support a breach of contract claim (see Ullmann-Schneider, 121 AD3d at 416). Thus, defendants’ motions to dismiss the first cause of action for breach of contract are granted, and the first cause of action is dismissed. ”

Traditionally, one pleads:  “If this, then that.”  However, when proposing how persons would have reacted to a specific stimulus, in the legal malpractice setting, one must avoid speculation.  So, attorney was tardy in serving and filing a Notice of Entry.  That gave the other side more time to file a notice of appeal.  Did it make a difference?

Here, no.

“Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered August 6, 2020, which granted defendants’ motion to dismiss the complaint, unanimously affirmed, without costs.

This legal malpractice action was properly dismissed. There is no basis other than speculation to support the allegation that, had defendants attorneys, who represented plaintiff client in an underlying action, served notice of entry sooner, the adverse party would not have sought leave to appeal (see Levine v Lacher & Lovell-Taylor , 256 AD2d 147, 149 [1st Dept 1998]).”

Could there be anything more ironic than a defendant attorney (accused of malpractice) losing the case because the defendant attorney failed to answer the complaint?

Rene v Abrams  2021 NY Slip Op 02431 Decided on April 21, 2021 Appellate Division, Second Department provides the short answer.

“In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Anna R. Anzalone, J.), entered March 27, 2019. The order, upon an amended order of the same court entered November 18, 2016, inter alia, granting the plaintiffs’ motion for leave to enter a default judgment against the defendants on the issue of liability upon their failure to appear or answer the complaint, and after an inquest on the issue of damages, directed payment of the sum of $9,000 in damages to the plaintiff Emmanuel Rene and payment of the sum of $1,000 in damages to the plaintiff Danica Drakes.

ORDERED that the appeal is dismissed, with costs.

An order which does not decide a motion made on notice is not appealable as of right (see CPLR 5701[a][2]; Sholes v Meagher, 100 NY2d 333, 335; Deutsche Bank Natl. Trust Co. v Brown, 186 AD3d 1195), and we decline to grant leave to appeal. While the defendants seek appellate review of the Supreme Court’s determination of damages after an inquest, they failed to include the relevant papers and transcripts to enable meaningful appellate review of that issue (see CPLR 5526; Rubio-Modica v Modica, 100 AD3d 979; Keita v United Parcel Serv., 65 AD3d 571, 572).”