Volpe v Munoz & Assoc., LLC  2021 NY Slip Op 00516 Decided on January 28, 2021 Appellate Division, First Department gives a bullet point review of how this case failed:

“The complaint fails to state a cause of action for legal malpractice. First, it does not allege an attorney-client relationship between the attorneys and plaintiff. Although there was no written retainer agreement, the parties’ conduct makes clear that the attorneys performed services solely for the LLC that was formed by plaintiff and defendant Joseph Cohen (see Wei Cheng Chang v Pi, 288 AD2d 378 [2d Dept 2001], lv denied 99 NY2d 501 [2001]).

The complaint also fails to state a derivative malpractice claim because it does not allege that an attorney-client relationship existed between the attorneys and the LLC at the relevant time. Under the terms of the LLC’s operating agreement, the LLC dissolved upon the expiration of its consulting agreement with nonparty Brielle, Inc., on April 30, 2018. Thus, there was no client to which the attorneys could owe a duty in October 2018, when they represented Cohen and his new business entity.

Second, plaintiffs’ allegations of legal malpractice consist solely of claimed violations of the Rules of Professional Conduct, which do not alone support a malpractice claim (Shapiro v McNeill, 92 NY2d 91, 97 [1998]).

Third, whether plaintiff would have obtained further business from Brielle was entirely within Brielle’s discretion, thus any causational link between the alleged malpractice and plaintiff’s alleged loss is wholly speculative (see Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 [2d Dept 2012], lv denied 20 NY3d 857 [2013]).

The complaint also fails to state a cause of action for aiding and abetting breach of fiduciary duty, because plaintiffs fail to allege that the attorneys did anything more than prepare legal agreements for Cohen (Art Capital Group, LLC v Neuhaus, 70 AD3d 605 [1st Dept 2010]).”

The claim in Berkovits v Berkovits  2021 NY Slip Op 00406 Decided on January 27, 2021Appellate Division, Second Department is not matrimonial, it is patriarchal.  Father alleges that son defrauded him over valuable assets.  For our purposes, there is also a claim against his attorneys for not explaining the deal.

“The plaintiff Joseph Berkovits alleges that his son, the defendant Mayer Berkovits, improperly induced him to execute an agreement creating an irrevocable trust (hereinafter the trust). Joseph Berkovits alleges that Mayer Berkovits falsely advised him to sign documents purportedly related to the tax treatment of certain real property, and that those documents actually established the trust. Pursuant to the trust agreement, Joseph Berkovits, as grantor, transferred to the trust certain shares in the plaintiff Aberko Realty, Inc. (hereinafter Aberko; hereinafter together with Joseph Berkovits, the plaintiffs). The trust agreement provided, inter alia, that Mayer Berkovits was to serve as investment advisor, distribution advisor, and protector of the trust. In those capacities, Mayer Berkovits allegedly was granted sole authority to manage the trust and its assets, including the sole discretion to make any distributions.

According to the plaintiffs, the defendant Roberts & Holland, LLP, and the defendant David Mark Rozen, a partner in that firm (hereinafter together the attorney defendants), represented both Joseph Berkovits and Aberko in connection with the creation of the trust. The plaintiffs allege that the attorney defendants failed to explain to Joseph Berkovits the terms of the trust agreement. The plaintiffs allege that the attorney defendants improperly represented and promoted the interests of Mayer Berkovits in that transaction, and failed to seek or obtain a waiver of any conflict of interest.”

“Contrary to the contention of the attorney defendants, the fourth cause of action states a viable legal malpractice cause of action. “In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301; see Iannucci v Kucker & Bruh, LLP, 161 AD3d 959, 960). The “binding nature of [an] agreement between [a client] and a third party is not a complete defense to the professional malpractice of [a] law firm that generated the agreement to its client’s detriment” (Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 305; see Bishop v Maurer, 9 NY3d 910, 911).

The complaint alleges that the attorney defendants committed malpractice by failing to provide adequate legal advice to their client, Joseph Berkovits, prior to his execution of the trust agreement, and in failing to explain or seek any waiver of a potential conflict of interest created by their alleged simultaneous representation of Joseph Berkovits, Mayer Berkovits, and Aberko. The complaint also alleges that such conduct proximately caused damages to both Joseph Berkovits and Aberko. Under these circumstances, the complaint states a valid legal malpractice cause of action (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY3d at 304-305; see also Kram Knarf, LLC v Djonovic, 74 AD3d 628, 628; Tabner v Drake, 9 AD3d 606, 610).”

Pace v Horowitz  2021 NY Slip Op 00392 Decided on January 26, 2021
Appellate Division, First Department illustrates the power of the “date of mistake” statute of limitations in legal malpractice.  Despite the problem that many mistakes do not surface for a long time, Courts rigorously apply the statute of limitations and are parsimonious in allowing continuous representation.

“The court correctly determined that plaintiffs failed to show that there is an issue of fact as to whether the legal malpractice claim was timely filed based on the application of the continuous representation doctrine toll (see Marzario v Snitow Kanfer Holzer & Millus, LLP, 178 AD3d 527, 528 [1st Dept 2019]). The continuous representation doctrine toll does not apply based merely on the existence of an ongoing professional relationship, but only where the particular course of representation giving rise to the particular problems resulting in the alleged malpractice is ongoing (see Matter of Lawrence, 24 NY3d 320, 341 [2014]; Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1 [2007]). Here, while plaintiffs allege that defendant law firm provided continuing estate administration work as part of an ongoing professional relationship of estate administration, they do not adequately allege that the particular course of representation regarding the sale of estate assets in 2007, which gave rise to the malpractice allegations, continued through February 2015, so as to make the instant malpractice claim timely filed.”

Pre-Answer Dismissal of complaints is given outsized importance in legal malpractice litigation.  Anecdotally, a higher percentage of legal malpractice cases are dismissed pre-answer than those in the general population of litigation cases.  Zeppieri v Vinson 2021 NY Slip Op 00348
Decided on January 21, 2021 Appellate Division, Third Department describes how 3211(a)(1) is used.

“”A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” (Koziatek v SJB Dev. Inc., 172 AD3d 1486, 1486 [2019] [internal quotation marks and citations omitted]). “[I]t is clear that judicial records, as well as . . . any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Jenkins v Jenkins, 145 AD3d 1231, 1234 [2016] [internal quotation marks and citations omitted]; see Magee-Boyle v Reliastar Life Ins. Co. of N.Y., 173 AD3d 1157, 1159 [2019] [internal quotation marks, brackets and citation omitted]).^[FN1]

In support of their motion, defendants submitted the July 2018 order, the transcript of the bench trial and an email that had been accepted into evidence. The July 2018 order clearly qualifies as documentary evidence. As Supreme Court observed, the July 2018 order “refutes plaintiffs’ primary contention that defendants’ failure to object to Flacke’s testimony was the proximate cause of plaintiffs’ damages.” Where Supreme Court specifically states that its order is based on the decision from the underlying action, we find ourselves with “the proper case” in which a judicial record qualifies as appropriate documentary evidence sufficient to defeat the action (Jenkins v Jenkins, 145 AD3d at 1234). Moreover, even if the court also relied on the underlying transcript, contrary to plaintiff’s contention, there is no per se prohibition on said reliance, where, as here, the contents of the transcript are undeniable (see Tyree v Castrovinci, 164 AD3d 1399, 1400 [2018]). We agree that Supreme Court properly granted defendants’ motion to dismiss the amended complaint based upon documentary evidence (see Ganje v Yusuf, 133 AD3d 954, 957 [2015]; Doller v Prescott, 167 AD3d 1298, 1300 [2018]). Given our finding, the remainder of plaintiffs’ arguments are academic.”

Gramted. its a case from small claims court, and granted, it’s the Appellate Term, not the Appellate Division, but the rules recited in Law Offs. of Lydia C. Hills, P.C. v Holguin  2021 NY Slip Op 50032(U) [70 Misc 3d 135(A)] Decided on January 15, 2021 Appellate Term, Second Department remain true.

“Attorneys representing clients in domestic relations matters are subject to particular rules (see 22 NYCRR part 1400), which ” ‘were designed to address abuses in the practice of matrimonial law and to protect the public’ ” (Rosado v Rosado, 100 AD3d 856, 856 [2012], quoting Hovanec v Hovanec, 79 AD3d 816, 817 [2010]). The rules include a requirement that attorneys in such matters provide prospective clients with a written statement of their right “to receive a written, itemized bill on a regular basis, at least every 60 days” (22 NYCRR 1400.2), which right must also be reflected in the written retainer agreement for the attorney’s services (see 22 NYCRR 1400.3 [9]). A matrimonial attorney seeking to recover unpaid legal fees must demonstrate substantial compliance with the rules applicable to attorneys representing clients in domestic relations matters as an essential element of his or her prima facie case (see Greco v Greco, 161 AD3d 950, 951-952 [2018]; Montoya v Montoya, 143 AD3d 865, 865-866 [2016]; Hovanec v Hovanec, 79 AD3d 816, 816 [2010]; Pillai v Pillai, 15 AD3d 466, 467 [2005]; see also Gottlieb v Gottlieb, 101 AD3d 678, 679 [2012]; cf. Edelman v Poster, 72 AD3d 182 [2010]). Since, at trial, plaintiff failed to demonstrate that it had substantially complied with the rule requiring it to provide periodic billing statements to defendant at least every 60 days, plaintiff failed to make out a prima facie case, and the judgment in its favor failed to comply with substantive law (see CCA 1804, 1807).

“Whether specific conduct constitutes legal malpractice is a factual determination to be made by the trier of fact” (Weintraub v Petervary, 57 Misc 3d 153[A], 2017 NY Slip Op 51595[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). Defendant failed to provide any expert testimony (see Healy v Finz & Finz, P.C., 82 AD3d 704, 706 [2011]; Northrop v Thorsen, 46 AD3d 780, 782 [2007]) or to otherwise substantiate her claim of legal malpractice. In this circumstance, we find no basis to disturb the Civil Court’s implicit conclusion that defendant did not establish a failure by plaintiff “to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [defendant] to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks omitted]).”

Personal injury claims that a person might have can become the property of the Bankruptcy estate.  It is a tricky question depending on whether the bankruptcy case is in Chapter 7, 11 or 13.  Pre-Petition claims are different from post-petition claims, yet they all came together in Horvath v Budin, Reisman, Kupferberg & Bernstein  LLP 2021 NY Slip Op 30105(U)
January 13, 2021 Supreme Court, New York County Docket Number: 161339/2019 Judge: David Benjamin Cohen.

“In 2009, plaintiff filed a Chapter 13 Petition in the United States Bankruptcy Court for the District of New Jersey (“the Bankruptcy Court”) under Case No. 09-38537-KCF. Doc. 22. Plaintiff was represented in the bankruptcy proceeding by Jules Rossi, Esq. Doc. 22. On September 15, 2010, plaintiff was allegedly injured while he was a passenger in an elevator in a building in Manhattan. Doc. 21 at par. 4. Plaintiff thereafter retained the Law Offices of Michael Lamonsoff (“Lamonsoff’) to commence a personal injury action on his behalf against Gumley Haft Kleier Inc. (“GHK”) and Eltech Industries (“Eltech”). The action against GHK and Eltech was commenced in the Supreme Court, Bronx County in 2010 under Index Number 310013/10 (“the Bronx County action”). Doc. 17 at par. 16. Lamonsoff also represented plaintiff in an unrelated personal injury action commenced in New York County in 2010 under Index Number 115395/10 (“the New York County action”). Doc. 17 at par. 17.
The Bankruptcy Court confirmed the Chapter 13 plan on December 28, 2011. Doc. 23. ”

“In 2014, Eltech moved to dismiss the complaint in the Bronx County action based on the pending bankruptcy matter. Doc. 17 at par. 26. By order dated December 2, 2014, the Supreme Court, Bronx County denied the motion to dismiss. Doc. 26. By order dated March 7, 2017, the Appellate Division, First Department reversed and dismissed the complaint in the Bronx County action, stating, inter alia, that:

Plaintiffs prolonged failure to disclose this lawsuit to the Bankruptcy Court renders him judicially estopped from pursuing it … Plaintiff took an inconsistent position in the bankruptcy proceedings – that he did not have other legal claims than those listed on his schedule of assets and liabilities – and that position was adopted by the Bankruptcy Court when it confirmed the plan.”

“Here, as noted above, plaintiff claims that defendant’s actions, or inaction, regarding his bankruptcy resulted in the dismissal of the Bronx County action. Specifically, he alleges that: Defendant BUDIN, REISMAN, KUPFERBERG & BERSTEIN, LLP committed legal malpractice by failing to exercise that degree of care, skill and diligence commonly possessed by a member of the legal community. Doc. 21 at par. 60.
Plaintiff also alleges that he would have succeeded on his claim in the Bronx County action “but for the defendant’s negligence and legal malpractice.” Doc. 21 at pars. 62, 78. Further, plaintiff alleges that he sustained damages as a result of defendant’s negligence. Docs. 69, 82.
Since the complaint, viewed in the light most favorable to plaintiff, pleads a viable claim sounding in legal malpractice, that branch of defendant’s motion seeking dismissal pursuant to CPLR 3211(a)(7) is denied.”

It is an almost ironclad requirement that experts be used in legal malpractice settings, either to state the standard of ordinary rasonable skill and knowledge commonl possessed by an attorney.  In Lieberman v Green 2021 NY Slip Op 00163 Decided on January 13, 2021 Appellate Division, Second Department the client (acting pro se) didn’t hava an expert.  The result was fatal.

“The plaintiffs moved for summary judgment dismissing the counterclaim alleging legal malpractice, and the defendant opposed. In an order dated July 16, 2018, the Supreme Court, granted the plaintiffs’ motion. The defendant appeals. We affirm.

“‘In moving for summary judgment dismissing a [cause of action] alleging legal malpractice, [movant] must present evidence establishing, prima facie, that it did not breach the duty [*2]to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the plaintiff did not sustain actual and ascertainable damages as a result of such deviation'” (Dominguez v Mirman, Markovitz & Landau, P.C., 180 AD3d 646, 647, quoting Mazzurco v Gordon, 173 AD3d 1003, 1003). Here, the plaintiffs submitted evidence, including an expert affirmation, demonstrating, prima facie, that, given the totality of circumstances under which the parties made their agreement on March 9, 2012, the plaintiffs did not breach their duty to exercise the ordinary reasonable skill and knowledge commonly possessed by an attorney by having the terms of the stipulation transcribed by the stenographer, and agreeing to later present such stipulation to the court to be so-ordered.

In opposition, the defendant, who did not submit an expert affidavit, failed to raise a triable issue of fact. His opposition consisted entirely of speculative and conclusory assertions (see Sang Seok NA v Schietroma, 163 AD3d 597, 599; Harris v Barbera, 163 AD3d 534, 535; Schadoff v Russ, 278 AD2d 222, 223). Accordingly, we agree with the Supreme Court’s determination granting the plaintiffs’ motion for summary judgment dismissing the defendant’s counterclaim alleging legal malpractice.”