Plaintiff sues attorney for settling a motor vehicle case for $ 1500.  Case runs into trouble for two reasons.  First, there has already been a determination that Plaintiff authorized the settlement through his attorney.  Second, while Plaintiff says he needs a Turkish translator, he repeatedly answered the questions in English.

The court dismissed all claims in Guliyev v Banilov & Assoc., P.C.  2021 NY Slip Op 31728(U) May 17, 2021 Supreme Court, Kings County Docket Number: 516045/2020 Judge: Peter P. Sweeney.

“Plaintiff’s claims arise from an underlying action captioned Shahin Guliyev v. David Han and Gelco Corp. [Index # 515757/2016] where plaintiff sought damages for injuries allegedly sustained in a motor vehicle accident [MVA]. After the MVA action was settled for the sum of $1500.00, plaintiff changed attorneys and plaintiff’s new counsel moved to vacate the settlement. Han and Gelco Corp. then moved to compel enforcement of the settlement. In opposition to the enforcement motion, plaintiff argued that he had not authorized the settlement. The Court directed that a framed issue hearing be conducted to hear and determine whether Shahln Guliyev’s prior counsel, Harlan Wittenstein, of counsel to Nick Banilov, had the authority to enter into the settlement agreement. Therein, plaintiff claimed there was a language barrier and that the offer had not been properly conveyed to him. The Referee determined that plaintiff was not a credible witness and that his prior counsel had the authority to settle the case. Referee Sunshine stated: “The court notes that throughout the hearing, Guliyev answered the questions in English before they were translated to him in Turkish finding that he understands the English language very well. Furthermore, the court notes that Guliyev had no difficulties speaking English during the court proceedings. In fact, he kept responding in English when questioned, “I don’t know”. “ “He said he did not  understand what the Sabrina, the office member stated to him but then testified that she told him that he should come to the office to obtain the $1,500.00 so he clearly understood.”

“Under CPLR 3211[a][5], a cause of action may be dismissed because of collateral estoppel [issue preclusion] and/or res judicata [claim preclusion]. The proponent of the application of the doctrine of collateral estoppel has the burden of establishing an identity of
issues, and the opponent of the application of the doctrine has the burden of establishing an absence of a full and fair opportunity to litigate (see Klapper v. Cypress Hills Cemetery, 184 AD3d 813; Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349; Schwartz v. Public Adm’r
of County of Bronx, 24 NY2d 65, 71). Here, defendant Banilov  submitted a copy of plaintiff’s opposition to the enforcement motion, a copy of the Court’s order determining the enforcement motion, a copy of the Referee’s Report, and the transcript of the framed issue hearing. Banilov’s submissions establish that the question of plaintiff’s consent to the agreement was previously determined. Accordingly, the doctrine of collateral estoppel precludes the plaintiff from relitigating the issue of whether he consented to the settlement (see Karakash v Trakas, 163 AD3d at 789). In opposition, plaintiff failed to show that he lacked the opportunity to litigate the issue in the prior action.

On a motion to dismiss based upon documentary evidence under CPLR §3211[a][1], dismissal is only warranted if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” (Walker v. Kramer, 63 AD3d 723 quoting
Klein v Gutman, 12 AD3d 417, 418, 784 NYS2d 581 [2004] [citations omitted]; see CPLR 3211[a][1]). Here, the defendants’ documentary evidence including the prior Court’s decision/order, plaintiff’s opposition to the enforcement motion, the Referee’s report, and the
transcript of the framed issue hearing, conclusively establishes as a matter of law a defense to plaintiff’s claim that he did not consent to the settlement in the underlying action (see CPLR § 3211[a][1]). “

Legal malpractice cases in real estate transactions sometimes are about multi-million dollar losses, sometimes about smaller deals gone bad.  FTF Lending, LLC v Mavirides Moyal Packman & Sadkin, LLP  2021 NY Slip Op 31502(U) May 4, 2021 Supreme Court, New York County Docket Number: 153620/2020 Judge: Margaret A. Chan is about a smaller deal.

“On or about May 30, 2018, FTF retained MMPS, which held itself out as “experts in real estate financing,” to represent FTF in loan transaction with 2330 Dutch and 2330 Dutch’s sole member Dwayne A. Samuels (“Samuels”) (id., ¶’s 8, 9). Weinberg is an associate at MMPS, who practices in MMPS’s commercial real estate practice group (id., ¶ 3).

On or about May 26, 2018, FTF and Samuels executed a Term Sheet, which contemplated FTF providing a to-be named entity owned by Samuels a $375,000 loan related to first mortgage financing for 2330 Dutch Broadway, Elmont, New York 11003 (the “Property”) (id, ¶ 12). As part of the transaction, FTF required, inter alia, that the Property be transferred from Samuels to 2330 Dutch, a title insurance policy be secured, a closing protection letter, and a first mortgage lien on
the Property (id, ¶ 15). On May 30, 2018, MMPS sent a check list of these requirements to counsel for Samuels and 2330 Dutch, Robert Thony (id., ¶ 14). On June 8, 2018, Thony sent MMPS a copy of an unmarked and marked up purported title reports purportedly prepared by Fidelity National Title Insurance Company (“Fidelity”) and a purported closing protection letter (id., ¶¶16, 17). Both the marked and unmarked purported title reports contained a purported deed falsely evidencing the transfer of the Property by Samuels to 2330 Dutch (id., ¶ 18).

Defendants scheduled the loan to close on June 12, 2018, and, at that time, on advice of defendants, FTF entered into a certain loan with 2330 Dutch in the amount of $375,000 (id., ¶ 19). In connection with the loan, 2330 Dutch also executed a certain Mortgage and Security Agreement, and Samuels executed a guaranty, which guaranteed all of 2330 Dutch’s obligations under the loan (id., 20).

Neither 2330 Dutch nor Samuels ever made payments and, as a result, FTF sought to foreclose on the Property (id., ¶ 25). After conducting a title search, on or about June 30, 2019, FTF discovered that the unmarked purported title report and marked up purported title report provided by Thony to MMPS were entirely fraudulent; that the  Property was encumbered by numerous liens, judgments and
the subject of a pending foreclosure proceeding; that the Property was never transferred to 2330 Dutch; that the “recorded” mortgage provided by Thony was not actually recorded in the Nassau County Clerk’s Office; and that title insurance policy with Fidelity was fraudulent and title insurance was never secured (id., ¶’s
27-33). ”

““[A]n action for legal malpractice requires proof of three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and proof of actual damages” (Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 198 [1st Dept 2003]). Negligence is shown if a plaintiff can demonstrate that “the attorney failed to exercise that degree of care, skill and diligence commonly possessed by a member of the legal profession, and that this failure caused damages” (Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134, 140 [1st Dept ], lv denied 22 NY3d 855 [2013]).

Applying these principles, the court finds that FTF has sufficiently stated a claim for legal malpractice based on allegations that defendants breached their duty to FTF by not adequately reviewing the title report and various closing documents so as to ascertain that 2330 Dutch did not own the Property, and therefore caused damages to FTF. Moreover, defendants’ assertion that they relied on Thony’s status as an attorney does not provide grounds for dismissal based on the pleadings.

Additionally, contrary to defendants’ argument, evidence that FTF was
responsible for, and failed to exercise, due diligence, including in investigating Samuels, does not warrant the dismissal of the complaint for lack of causation. To survive a motion to dismiss under 3211(a)(7), “a pleading need only state allegations from which damages attributable to the defendant’s conduct may be reasonably
inferred” (Lappin v Greenberg, 34 AD3d 277, 279 [1st Dept 2006] [internal citations omitted]). And, at the pleading stage, a plaintiff “is not obligated to show…that it actually sustained damages” (Inkine Pharmaceutical Company, Inc. v Coleman, 305 AD2d 151, 152 [1st Dept 2003] [internal citation and quotation omitted]).

Here, the complaint sufficiently alleges that FTF’s damages are attributable to defendants’ failure to exercise the appropriate standard of care in examining the pre-closing documents. And, the cases relied on the defendants to argue lack of causation are inapposite as they were based on evidence refuting causation
submitted in support of summary judgment (see e.g. Stolmeier v Fields, 280 AD2d 342, 343 [1st Dept], lv denied 96 NY2d 714 [2001] [granting summary judgment dismissing plaintiff contractor’s legal malpractice claim against attorney based on attorney’s alleged failure to advise him of the need for a license based on “overwhelming evidence, including [plaintiff’s] own deposition testimony, that he
was aware prior to the [subject] contract” of the licensing requirement])”

As in a blog from this week, New Canaan Capital Mgt., LLC v Chadbourne & Parke LLP  2021 NY Slip Op 02758 Decided on May 04, 2021 Appellate Division, First Department is a case with a past. it is dismissed on the basis of collateral estoppel and the statute of limitations.

“The complaint is barred as against the attorney defendants by the doctrine of collateral estoppel. The issue of whether plaintiff pleaded a fraud or a legal malpractice claim was necessarily decided in the 2018 action, where plaintiff had a full and fair opportunity to contest it (see Parker Madison Partners v Airbnb, Inc., 184 AD3d 544 [1st Dept 2020]). The pleading deficiencies found in the earlier complaint were not remedied in the instant complaint (see id.). The doctrine of res judicata bars plaintiff’s present claims against the remaining defendants. Plaintiff has brought two actions against them, a state action that was dismissed without prejudice and a federal action that was dismissed on the merits, and its present aiding and abetting fraud claim is based upon the subject matter and transactions that were dismissed in those prior actions (see Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 5 [1st Dept 2000]).

The complaint is also time-barred. The fraud claims rest on the allegations that the attorney defendants violated their duties as lawyers by not disclosing a conflict of interest, improperly disclosing confidential information, and preparing documents that resulted in plaintiff’s failure to obtain the equity interest it sought. These allegations “essentially” state a malpractice claim (see Matter of R.M. Kliment & Frances Halsband, Architects [McKinsey & Co., Inc.], 3 NY3d 538, 542 [2004]; see also Gourary v Green, 143 AD3d 580, 581 [1st Dept 2016]). Thus, they cannot serve “to circumvent the shorter statute of limitations for legal malpractice” (Hsu v Liu & Shields LLP, 127 AD3d 522, 523 [1st Dept 2015], lv dismissed in part, denied in part 26 NY3d 996 [2015]).”

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). “