Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP  2020 NY Slip Op 06711 Decided on November 17, 2020 Appellate Division, First  Department seems to be a case that could have been won, it it had been brought in 2016 rather than in 2018.

“Plaintiff, a general contractor, entered into a construction agreement with nonparty Well-Come Holdings, Inc. to perform construction and excavation work on property owned by Well-Come. In 2004 an adjacent property owner commenced an action against Well-Come and plaintiff alleging that the excavation work had damaged its property. In 2006 Well-Come commenced a declaratory judgment action against plaintiff and its insurer. Defendant, as counsel for plaintiff, allegedly without plaintiff’s knowledge and consent, stipulated with Well-Come’s counsel that plaintiff and its insurer would jointly defend and indemnify Well-Come for all damages in connection with the project, including those that plaintiff claimed were caused by Well-Come’s own negligence. In 2007 defendant entered into a second stipulation, allegedly without plaintiff’s knowledge and consent, discontinuing the declaratory judgment action brought by Well-Come as against plaintiff and agreeing that plaintiff alone would defend and indemnify Well-Come (the 2007 stipulation). On July 29, 2013, a jury rendered a verdict as to damages against Well-Come and plaintiff, and on September 5, 2018, after five years of posttrial proceedings, a money judgment was entered against them jointly.

Plaintiff commenced this action on September 17, 2018, alleging that defendant committed legal malpractice by entering into the stipulations. Plaintiff alleges that entering into the 2007 stipulation, which shifted the responsibility for Well-Come’s defense from plaintiff’s insurer to plaintiff alone, was professional negligence. In December 2018 defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5). The motion court ruled that the complaint was time-barred because the statute of limitations had begun to run on July 29, 2013, the date on which the jury rendered its verdict, which was the date on which plaintiff’s damages were reasonably calculable. We affirm.”

“”An action to recover damages for an attorney’s malpractice must be commenced within three years from accrual (see CPLR § 214[6]). A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court. In most cases, this accrual time is measured from the day an actionable injury occurs [or when the damages are sufficiently calculable], even if the aggrieved party is then ignorant of the wrong or injury.” (McCoy v v. Feinman, 99 NY2d 295, 301 [2002] [internal quotation marks and citation omitted]; King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541 [2d Dept. 2018]).”

Jewell Law, PLLC v Ruci  2020 NY Slip Op 33648(U) November 3, 2020
Supreme Court, New York County Docket Number: 655702/2019
Judge: Arthur F. Engoron displays some unique inductive reasoning, and some conventional legal reasoning.  Breach of Fiducary duty is dismissed in an unconventional matter.  Legal malpractice is more conventionally decided.

“This Court finds that the breach of fiduciary duty claim is duplicative of the legal malpractice claim as they seek identical relief, namely, damages in an amount to be determined at trial, plus interest and costs. Alphas v Smith, 147 AD3d 557, 559 (!81 Dept 2017) (breach of fiduciary duty claim was duplicative of malpractice claim as it sought similar damages). Furthermore, the actions of which Ruci complained are not within what this Court considers to be typical breach of fiduciary duty claims. Ruci’s position proves too much; it would mean that every malpractice claim would also allow a breach of fiduciary duty claim, which is not the law. ”

“Jewell claims that Ruci has failed adequately to plead legal malpractice, specifically, that Ruci has failed to allege “but for” causation, because any allegation that the court in the Underlying Action would have granted unsupervised visitation while a criminal court order of protection was in effect is impermissible speculation. That is incorrect. Here, Ruci alleges that Jewell: failed to file an emergency Order to Show Cause to commence the Underlying Action, which Ruci alleges would have expedited the Underlying Action and lessened the time missed between Ruci and his child; failed to file a Writ of Habeas Corpus, as directed by Ruci; improperly interfered with Ruci’s criminal case by pressuring Ruci to do certain things despite the fact that Jewell was not
retained to represent him in that proceeding; failed to effectuate proper and timely service in the Underlying Action prior to the initial court date, which increased the time missed between Ruci and his child; failed to secure unsupervised parenting time for Ruci at two court dates, which increased the time missed between Ruci and his child; filed frivolous Orders to Show Cause; improperly advised Ruci that it might be possible for him to take his child out of the country; and
asserted to the referee in the Underlying Action that Jewell was using electronic filing when no such electronic filing system was available in Queens County Family Court at that time. Clearly, Ruci has pleaded that but for Jewell’s actions and/or inactions in the Underlying Action, Ruci
would have been reunited with his child earlier than he was. Also, Ruci has adequately pleaded that he was denied visitation time, be it supervised or unsupervised. “

Hudson Yards LLC v Segal  2020 NY Slip Op 06353 Decided on November 05, 2020 Appellate Division, First Department is another case in which the brutal “but for” causation rule in legal malpractice ends a case.

“To recover damages for legal malpractice, the plaintiff must establish that the attorney (1) “failed to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community” and (2) that “such negligence was a proximate cause of the loss in question” (Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [1st Dept 2007]). The IAS court properly held that defendants met their prima facie burden of entitlement to summary judgment on the issues of negligence and proximate causation, and that plaintiff, in opposition, failed to raise a triable issue of fact.

The evidence submitted with the motions establishes that plaintiff and nonparty Fortress Credit Corp. (Fortress) did not privately come to a final settlement agreement, whether oral or otherwise, prior to the foreclosure sale. At most, plaintiff and Fortress agreed to some proposed settlement terms outside of defendant counsel’s presence. As there was no admissible evidence showing that plaintiff had entered into a settlement agreement with Fortress prior to the sale, plaintiff’s claim that defendants failed to advise him that the alleged settlement agreement was unenforceable fails.

In any event, the IAS court properly found that defendants’ advice to plaintiff regarding the sale was reasonable, even if they did not specifically advise him that the proposed agreement was unenforceable (see Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 667 [1st Dept 2017]). As the IAS court found, defendants’ decision to preserve the ability to reach a favorable settlement, while at the same time continuing to pursue its strategy of fighting a deficiency judgment on valuation in the event that settlement could not be reached, was an inherently reasonable one. Plaintiff’s hindsight criticism of this strategy does not support his malpractice claim (see Brenner v Reiss Eisenpress, LLP, 155 AD3d 437, 438 [1st Dept 2017]).

Finally, plaintiff has failed to raise an issue of fact surrounding proximate cause. As the IAS court found, the allegations underlying plaintiff’s malpractice claim were couched in terms of “gross speculations” about future events, without the requisite factual basis to support the allegation (see Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 [1st Dept 1999], lv denied 94 NY2d 759 [2000]).”

Olsen v Smith 2020 NY Slip Op 06214 [187 AD3d 675] October 29, 2020
Appellate Division, First Department is a familiar trope.  Supreme Court and the Appellate Division look over a pro-se complaint and find it wanting.

“In this action for legal malpractice, plaintiff alleges that defendants’ mishandling of her defense in a Family Court proceeding brought against her by nonparty John Doe resulted in her settling a separate civil action and other disputes with Doe on unfavorable terms. The court correctly determined that the complaint is devoid of allegations from which it could be inferred that any negligence by defendants in their handling of the family court proceeding was the “but for” causation of any damages (see Dweck Law Firm v Mann, 283 AD2d 292, 293 [1st Dept 2001]; see also Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 [1st Dept 1999], lv denied 94 NY2d 759 [2000]). Moreover, many of the factual allegations in the complaint, including those concerning the adjournment of a preliminary conference and defendants’ alleged wrongful withdrawal from representation, are flatly contradicted by documentary evidence in the record and therefore are not entitled to be considered as true (see Beattie v Brown & Wood, 243 AD2d 395 [1st Dept 1997]).

Plaintiff’s breach of fiduciary duty and breach of contract claims were properly dismissed as duplicative of the legal malpractice claim (see Courtney v McDonald, 176 AD3d 645, 646 [1st Dept 2019]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Renwick, J.P., Gesmer, Kern, Singh, JJ.”

In this case, the claim was that the attorney should have inquired about insurance that Plaintiff had, rather than taking the case and charging the client for representation that the insurance company would have provided.

The jury found otherwise.  in Cohen v Sive, Paget & Riesel, P.C.,  2020 NY Slip Op 06050 [187 AD3d 634] October 27, 2020  the Appellate Division, First Department affirmed.

“The jury’s verdict that defendant did not commit legal malpractice rested on a fair interpretation of the evidence (see KBL, LLP v Community Counseling & Mediation Servs., 123 AD3d 488, 489 [1st Dept 2014]; Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [1st Dept 2007]). The jury heard significant evidence about the standard of care an attorney owes to a client, including the information and explanations that an attorney should give to clients about submitting claims to their insurer. There was a sufficient basis for the jury’s crediting the testimony of defendant’s expert witnesses about the standard of care and placing less weight on plaintiffs’ expert’s testimony. The jury also heard evidence about the scope of defendant’s representation, as well as evidence that, shortly after it was retained, defendant advised plaintiffs to submit a claim to their insurer and that plaintiffs rejected that advice. There was also expert testimony that certain rights that defendant allegedly failed to explain to plaintiffs either belonged to plaintiffs’ insurer or otherwise would not have applied in this case.

The jury’s conclusion that defendant did not breach the standard of care by failing to advise plaintiffs that their insurer might have a duty to provide a defense also rests on a fair interpretation of the evidence. The jury heard expert testimony that the claim against plaintiffs would not be covered by the policy and that plaintiffs’ insurer would not have provided a defense.”

Plaintiff hired Defendant attorney to represent him in both a criminal and a civil matter.  The civil matter went wrong, and Plaintiff sued.  Defendant argued that you may not sue a criminal defense attorney absent a showing of “actual innocense.”  True enough, but…

“The court properly denied the motion to dismiss the first cause of action for legal malpractice. Plaintiff adequately plead that defendant, who was retained to represent him in a criminal matter, owed him a duty of care with respect to legal advice he allegedly offered in connection with a pending civil action (see Jane St. Co. v Rosenberg & Estis, 192 AD2d 451 [1st Dept 1993], lv denied 82 NY2d 654 [1993]). While the parties entered into a written retainer agreement stating that the legal representation was for the criminal matter, on this motion to dismiss the written retainer does not eliminate any possibility that defendant owed plaintiff a duty of care in connection with legal advice he had given and was continuing to give regarding the separate civil matter, insofar as plaintiff relied upon it within that matter rather than in the criminal matter (see Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 482 [1st Dept 2018]). Accordingly, there is no documentary evidence here sufficient to require dismissal of the legal malpractice claim pursuant to CPLR 3211 (a) (1) (see IMO Indus. v Anderson Kill & Olick, 267 AD2d 10 [1st Dept 1999]). Issues of fact precluding dismissal exist as to whether defendant’s legal malpractice was the proximate cause of any damages suffered by plaintiff in the civil matter and as to whether plaintiff suffered cognizable damages in that matter. Concur—Gische, J.P., Oing, Scarpulla, Mendez, JJ.”

Plaintiffs often wonder how their damages are computed.  One possible element of damages are the legal fees spent in defense of the underlying case. This is the central lesson of Rudolph v. Shayne Dachs  and it is the less of 83 Willow, LLC v Apollo 2020 NY Slip Op 05843 [187 AD3d 563] October 20, 2020 Appellate Division, First Department as well.

“For purposes of the motion, defendant does not dispute that his alleged failure to advise plaintiff of the consequences of a contingency clause in its contract to sell property was negligent, but contends that plaintiff cannot demonstrate that his negligence was the “but for” causation of ascertainable damages. On this record, triable issues of fact exist as to whether, but for defendant’s failure to inform plaintiff’s principal that it could be locked into the sale agreement in perpetuity if it did not obtain municipal approval for redevelopment, it would not have entered into the contract as written and would have avoided litigation with the buyer who sued for specific performance (see Leggiadro, Ltd. v Winston & Strawn, LLP, 151 AD3d 413 [1st Dept 2017]; Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437, 438-439 [1st Dept 2010]). Plaintiff’s alleged damages, as they relate to legal expenses defending the specific performance action, may be found to be proximately related to defendant’s negligent advice related to the issue of the contingency clause (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443).”

Plaintiff had a collission with a Nassau County bus.  Legal representation by the first two attorneys caused him to lose any opportunity to sue.  Whom might be responsible?

Buxton v Zukoff  2020 NY Slip Op 33426(U) October 16, 2020  Supreme Court, New York County Docket Number: 160223/15 Judge: Lynn R. Kotler discusses the Notice of Claim, the Motion to file a Late Notice of Claim, Successor counsel rules and a whole lot more.

“In this action, plaintiffs seek to recover for alleged attorney malpractice. Defendants are Seth Zukoff, Esq. and the Law Offices of Seth Zukoff, P.C. (collectively Zukoff), who were plaintiffs’ original attorney. The third-party defendants are the successor law firm, Raphaelson & Levine Law Firm, P.C. (R&L), who also represented plaintiffs. Levine & Grossman (L&G) is plaintiffs’ current attorney and also a third-party defendant. ”

“While there is no dispute that Zukoff failed to file a notice of claim within 90 days of the date of the accident, R&L’s claim that it terminated its representation of plaintiff in September 2013 and therefore it cannot be held liable for either Zukoff’s failures or an attempt to cure Zukoff’s malpractice as speculative is rejected. The court agrees that R&L cannot be liable for Zukoff’s failure to timely file a notice of claim within the 90-day period. However, plaintiffs retained R&L in July 2013 and R&L terminated its representation a mere two months later in September 2013 when it realized that a notice of claim was needed and not filed. Whether R&L would have prevailed on an application to serve a late notice of claim has not been established as a matter of law on this record and therefore will have to be determined by the trier of fact. Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 284 AD2d 104,
726 NYS2d 86 [1st Dept 2001], lv denied 97 NY2d 613, 742 NYS2d 606 [2002].
The court further rejects R&L’s argument that at Buxton’s deposition, when asked if R&L did anything wrong during the two months in which they represented him, and he responded “no”, is sufficient to prohibit asserting a malpractice claim against them. The question and plaintiff’s response do not conclusively establish that R&L is or is not liable for malpractice. See, Prince, Richardson on Evidence Sec. 8-219, at 529 [Farrell 11th ed]. ”

“First, plaintiffs argue that the court should grant them summary judgment finding that non-party Nassau Inter-County Express (NICE) was liable due to the rear end collision with Buxton under VTL § 1129. Buxton testified at his deposition that his car was stopped because he was stuck in snow and that he got hit in the rear. Defendant Zukoff opposes the motion and contends that plaintiffs are not entitled to a finding of liability against non-party Nassau County Intercounty Express based on the deposition testimony of the non-party bus driver Mathurin Kenold.
The court agrees with Zukoff. The record shows that questions of fact exist precluding a finding of summary judgment. Non-party Kenold testified at his deposition, in relevant part, that “he [Buxton] is the one who caused the accident, because the lane that he tried to pass through is not a moving lane. On the right side of the bus…the tire located behind the door where I am sitting at…”. The incident report by the bus driver notes that he was heading east on Hillside Avenue when Buxton’s vehicle passed on the right side of the bus “slid on the icy road and hit his left mirror”. Kenold’s and Buxton’s versions of how the accident happened are different thereby precluding summary judgment. Based on
the foregoing, that portion of plaintiff Buxton’s motion for summary judgment is denied. Next, L&G argues that summary judgment should be granted finding Zukoff liable for legal malpractice because Zukoff knew that a notice of claim was required against a municipal corporation and that Zukoff failed to file a notice for plaintiff Buxton within the 90 days. Zukoff opposes the motion and argues that L&G had sufficient time and opportunity to protect plaintiff’s rights and that it should have sued the bus company Veolia within the three-year statute of limitations.

While it is undisputed that Zukoff failed to timely file a notice of claim or make an application for leave to file a late notice, it is unknown if plaintiff would have prevailed in the underlying action. The record before the court shows that there are triable issues of fact as to how the accident occurred based on the deposition testimony of both Buxton and the bus driver Kenold that preclude granting summary judgement to L&G on this point. Finally, L&G argues that it should not be a named party in this lawsuit as there was a judicial determination that Levine & Grossman was retained after the 90-day notice of claim period and after the expiration of the one year and ninety-day statute of limitations period and that Zukoff is estopped by “res judicata/collateral estoppel” from making claims against them. L&G further contends that since their firm was not retained until after the 90-day period and the one year and 90-day statute of limitations expired, it cannot be liable for contribution or indemnification.
The court agrees. At the time L&G undertook plaintiffs’ representation, it was beyond the time period to either file a notice of claim or move to file a late notice. Based on the underlying facts of the accident between Buxton and the bus, the timely filing of a notice of claim with the County of Nassau was a condition precedent to any litigation. The court rejects Zukoff’s argument that a three 3-year statute of limitations applies. Moreover, Justice Winslow held that “The law is clear that the statutory notice of claim requirement applies not only to the County, but also to a private corporation that operates Countyowned buses in fulfillment of the County’s statutory duty to operate a public transit stem”. Here, Nassau County owned the bus and was operated by Veolia. L&G could not have filed any corrective motion as both the 90 day and one year and 90-day statute of limitations expired. Based on the foregoing, L&G’s motion is granted and defendant/third party plaintiff Zukoff’s action against it are severed and dismissed.”