The “But for” zone in legal malpractice is where most battles take place.  Whether there was a departure is rarely the tipping point. Moore v Kronick 2020 NY Slip Op 05742 [187 AD3d 892] October 14, 2020
Appellate Division, Second Department shows how events in the underlying case can kill a legal malpractice claim.

“The plaintiff and her brother, Eugene Moore (hereinafter Eugene), owned a two-family home as tenants in common. In 2009, Eugene commenced a partition action against the plaintiff. The defendant Arnold Kronick represented the plaintiff in the partition action. In 2012, the plaintiff entered into a stipulation of settlement with Eugene, whereby the property would be sold and they would divide the proceeds of the sale.

Thereafter, the plaintiff commenced this action to recover damages for legal malpractice, alleging that the defendants Arnold Kronick and Arnold Kronick, L.P. (hereinafter together the defendants), had negligently represented her in the partition action. Specifically, the plaintiff argued that the defendants were negligent in failing to assert the affirmative defense of constructive trust. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them, and their motion was denied.

In 2017, the plaintiff sought, among other things, to vacate the stipulation of settlement in the partition action, arguing that a constructive trust should be imposed upon the property. The Supreme Court denied the plaintiff’s motion, finding that the plaintiff was not entitled to a constructive trust. Shortly after entry of that order, the defendants moved for leave to renew their prior motion for summary judgment dismissing the complaint insofar as asserted against them, arguing that the court’s determination in the partition action that the plaintiff was not entitled to a constructive trust had a collateral estoppel effect on the legal malpractice action. In the order appealed from, the Supreme Court granted the defendants’ motion for leave to renew their prior motion for summary judgment and, upon renewal, granted the prior motion. We affirm.

To apply the doctrine of collateral estoppel, two requirements must be satisfied: “There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d 295, 303-304 [2001]). “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985]). Here, the plaintiff failed to meet her burden of establishing that she did not have a full and fair opportunity to litigate the constructive trust issue in the partition action. Accordingly, we agree with the Supreme Court determination that the defendants’ defense of the doctrine of collateral estoppel defeats the plaintiff’s legal malpractice claim. Scheinkman, P.J., Rivera, Balkin and Iannacci, JJ., concur.”

Real estate is a major contributor to the legal malpractice oeuvre.  Wells Fargo Bank, N.A. v Pickett 2020 NY Slip Op 05795 [187 AD3d 965] October 14, 2020 Appellate Division, Second Department is an interesting example of a conflict of interest and the AD’s suggestion that a legal malpractice case might be appropriate.

“The defendant Lauren L. Pickett (hereinafter the defendant) was the owner of a condominium unit located in Brooklyn. In July 2013, the plaintiff commenced this action against, among others, the defendant and 39 Pierrepont Condominium (hereinafter the Condominium) to foreclose a mortgage given by the defendant encumbering the subject premises. The Condominium cross-claimed against the defendant to foreclose a lien it held for nonpayment of common charges. The defendant retained nonparty David H. Perlman to represent her in the foreclosure action. On September 19, 2016, a judgment of foreclosure and sale was entered in favor of the Condominium, directing that the premises be sold at a public auction. Perlman subsequently filed a bankruptcy petition on behalf of the defendant; however, the petition was dismissed due to the failure to file the required schedules.

On December 7, 2017, the same date that the auction sale was noticed to be held, the Supreme Court declined to sign an order to show cause filed by Perlman on behalf of the defendant seeking to stay the foreclosure sale. A referee conducted a foreclosure sale on that date. The highest bidder at the auction bid $2 million, but that bid was rejected since the bidder did not intend to reside at the premises, as required under the terms of sale. The second highest bidder at the auction was Perlman, with a bid of $1.97 million. However, he declined to proceed with the purchase of the premises. The referee reopened the auction for bidding, and Perlman was the successful bidder with a bid of $1.6 million. Thereafter, the defendant moved, inter alia, to vacate the foreclosure sale and to impose sanctions against Perlman. In an order dated February 13, 2018, the court denied those branches of the defendant’s motion. The defendant appeals.”

“Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was to vacate the foreclosure sale of the subject premises.

Contrary to the defendant’s contention, however, the Supreme Court providently exercised its discretion in denying that branch of her motion which was to impose sanctions against Perlman. Although Perlman’s conduct may give rise to a cause of action to recover damages for legal malpractice, it was not frivolous within the meaning of 22 NYCRR 130.1-1 (see 22 NYCRR 130-1.1 [c]; see generally Youcheng Wu v Jian Xu, 137 AD3d 1016, 1016 [2016]). Dillon, J.P., Chambers, Cohen and Duffy, JJ., concur.”

Kivo v Louis F. Burke, P.C.  2020 NY Slip Op 05680 [187 AD3d 503]
October 13, 2020 Appellate Division, First Department reminds us that an expert is (almost) always needed.  Here, the absence of an expert was fatal to the motion defense.

“In this legal malpractice action, defendants, through their expert’s affidavit, established prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff could not prove that, but for their alleged negligence, he would have been awarded a greater recovery in an underlying FINRA (Financial Industry Regulatory Authority) litigation (see Nomura Asset Capital Corp. at 49-50; Agate, 57 AD3d at 342). Defendants’ showing was not refuted by plaintiff who was required to submit an expert affidavit in opposition. Absent an expert’s affidavit, plaintiff’s unsupported allegations that defendants’ breached their duty of care by, among other things, not discovering certain proof to support his claims in the underlying action are insufficient to raise a triable issue of fact (see Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010], lv denied 15 NY3d 950 [2010]; Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [1st Dept 2005]). Plaintiff’s dissatisfaction with how defendants conducted the arbitration hearing fails to amount to malpractice, absent a showing that defendants’ conduct was unreasonable (see Kassel v Donohue, 127 AD3d 674 [1st Dept 2015], lv dismissed 26 NY3d 940 [2015]).”

Attorney fee claims = Client malpractice claims.  This particular phrase could be chiseled into law school lintels.  Kovkov v Law Firm of Dayrel Sewell, PLLC 2020 NY Slip Op 05682 [187 AD3d 505] October 13, 2020
Appellate Division, First Department is a prime example.  Law firm was not paid after getting an initial $7500.  The representation was to claim that a case against plaintiff was frivolous.  It was never commenced.

“The claim for intentional infliction of emotional distress was correctly dismissed because defendants’ conduct as alleged in the complaint was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Howell v New York Post Co., 81 NY2d 115, 122 [1993] [internal quotation marks omitted]).

The breach of fiduciary duty claim was correctly dismissed as redundant of the legal malpractice claim (see Boye v Rubin & Bailin, LLP, 152 AD3d 1, 10 [1st Dept 2017]).

Supreme Court correctly dismissed the legal malpractice claim, which was based on defendants’ failure to commence an action on plaintiff’s behalf. The basis for that action would have been that the underlying action against plaintiff was frivolous. The record, however, demonstrates that the underlying action was discontinued without prejudice and the court indicated that it would have denied the motion to dismiss it.

We have considered plaintiff’s remaining contentions and find them unavailing.”

The Statute of limitations is an embodiment of a social policy which, in essence keeps the world turning.  Old, stale claims have an expiration date, and little opportunity exists to keep them alive.  Even continuous representation, in the legal malpractice setting, has significant limits.  Mehra v Morrison Cohen LLP  2020 NY Slip Op 33234(U) October 2, 2020
Supreme Court, New York County Docket Number: 159868/2019 Judge: O. Peter Sherwood is an example of the statute in play in a commercial setting.

“Plaintiffs assert claims for:
1) Malpractice against all defendants, as defendants failed to exercise the required degree of care in drafting the Holding operating agreement to protect Mehra’s voting and control rights, and possibly also his economic rights.
2) Breach of fiduciary duty against all defendants, for recommending a change to the Holding operating agreement which favored Teller over Mehra and for advising Teller on how to deprive Mehra of his rights to the business. ”

“Defendants argue that, since almost all of the allegations of their malpractice were for events in or before 2014, the only conduct alleged within the three-year statute of limitations is their participation in the 2016 operating agreement revisions, which is alleged only upon information and belief. Invoices subpoenaed from EOS show legal services relating to the operating agreement were performed only by Allen & Overy, not defendants (Memo, NYSCEF Doc. No. 17, at 8-9). Accordingly, defendants argue any claims related to their work in 2014 is barred by the statute of limitations or superseded by the intervening counsel by Allen & Overy in 2016. Even if the Firm did work on the 2016 revisions, the provisions at issue here were in the 2014 originals, meaning that the 2016 work (if there was any) was not the proximate cause of plaintiffs’ injuries. ”

“However, plaintiffs have not alleged damages from the alleged 2016 revision work by the defendants. Plaintiffs effectively allege defendants worked on the revisions and failed to correct the alleged 2014 malpractice. However, defendants allege they were injured by the “loss of voting power and control over business operations” (Opp at 20), which occurred when the operating  agreements were signed in 2014. Plaintiffs also note that “[h]ad Defendants exercised the appropriate degree of care in implementing their clients’ request for an equal partnership, [the injuries] could not have happened” (id. at 10). Accordingly, the malpractice claim accrued in 2014. As far as plaintiffs allege the statute of limitations was tolled by the continuous
representation doctrine, they have not alleged continuous representation. “The continuous representation doctrine . . . recognizes that a person seeking professional assistance has a right to
repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered. The doctrine also appreciates the client’s dilemma if required to sue the attorney while the latter’s representation on the matter at issue is ongoing (Shumsky v Eisenstein, 96 NY2d 164, 167 [2001]
[internal citations omitted]). “Application of the continuous representation . . . doctrine is nonetheless generally limited to the course of representation concerning a specific legal matter . .
. . Instead, in the context of a legal malpractice action, the continuous representation doctrine tolls he Statute of Limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice (id. at 168 [internal citations omitted]). Plaintiffs have not alleged continuous representation, but two instances of representation. They have not alleged representation on this matter was continuous from 2014
through 2016. Accordingly, the malpractice claim is barred by the statute of limitations and fails as untimely. “

As we have noted many times, real estate issues prompt a great number of legal malpractice cases.  There is both real money and real complicated litigative issues in big NY real estate and it often ends in legal malpractice disputes.  Genesis REOC Co., LLC v Poppel 2020 NY Slip Op 33230(U) October 1, 2020 Supreme Court, New York County Docket Number:  156733/2017 Judge: Carol R. Edmead  is one of them.

Genesis is a limited liability company formed in 2011 by Jazz Realty, through its member nonparty Andrew Stone (Stone), and by nonparty Genesis Member, LLC (Genesis Member),
through its member nonparty Karim Hutson (Hutson). The Company was formed for the purpose of investing in “low and moderate-income housing projects backed by tax credit equity investors in New York and New Jersey.” (First Amended Complaint (FAC), iJ 14 [NYSCEF No. 77].) Jazz Realty was “the investor partner and contributed capital to fund the Company’s investment activities …. ” (Id., ii 17.)

Pursuant to the Company’s limited liability agreement (Agreement) dated January 27,2011, Hutson was appointed as the manager of the Company and was responsible for identifying
potential investments for approved projects. (Id., ii 18.) Hutson was also required to receive Jazz Realty’s approval prior to using the Company’s funds for any investment opportunity and was prohibited from referring these opportunities to any other party, including himself, prior to obtaining Jazz Realty’s approval.

Poppel and Williams are both lawyers and were members of Berman Indictor and Pecker & Abramson PC, respectively. The F AC alleges that defendants acted as counsel for the
Company from the date the Company was formed in 2011 through July 2017, when defendants resigned their representation. (Id., ii 23.) Plaintiffs state that Jazz Realty, acting on the advice of defendants, invested over three million dollars to fund the Company’s approved investments. Defendants allegedly represented to plaintiffs that the Company would earn “developer fees, construction revenues, and profits … ” (Id., ii 25.)”

“In December 2015, plaintiffs commenced a separate action against Hutson and his affiliated companies (the Hutson Action), seeking to recover profits earned in connection with
the Company’s projects. Plaintiffs alleged, among other claims, an individual and derivative claim against Hutson for breach of fiduciary duty. This cause of action stated that, as manager, Hutson breached his fiduciary duty to the Company by, among other things, “[m]isappropriating Company investments for his own benefit …. ” (Berman Indictor’s exhibit B, Complaint, ii 154 [NYSCEF No. 85].) Plaintiffs claimed that, as a result ofHutson’s breaches, “the Company and Jazz Realty have been damaged in an amount to be proved at trial but in no event less than $41,306,574.” (Id., ii 155.) ”

“As noted above, plaintiffs settled in the Hutson Action. During oral argument the court asked plaintiffs, “[w]hat is your best case law for that proposition, that if the party is not made
whole, the settlement agreement is not a bar to the malpractice claim?” (See tr at 34.) However, the only case law presented by plaintiffs, or any party, in the context of a settlement agreement and a claim for legal malpractice pertained to when the lawyers provided counsel to plaintiff in negotiating a settlement agreement. (See e.g. Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]) (“A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel.”) However, in this situation, the court finds these decisions inapplicable, as defendants were not plaintiffs’ counsel in the Hutson Action.
Further, plaintiffs’ arguments that they have made “carve outs” in the settlement agreement in order to bring claims against counsel is misplaced, as defendants were not parties to
the settlement agreement. (See tr or oral argument at 33.) In addition, plaintiffs’ declarations in the settlement agreement that they are accepting less than 100% of their damages or their assertions during oral argument that Hutson is not performing his obligation under the agreement, are irrelevant. (See also plaintiffs’ memo oflaw at 19 noting that Hutson has refused to make any payments.) Plaintiffs voluntarily chose to settle in the Hutson action. Plaintiffs brought the Hutson Action to recover for many of the same damages as alleged
in the present action. Plaintiffs argue that their damages are not speculative and can be calculated after full disclosure of the books and records. As it stands, the court agrees with defendants that part of plaintiffs’ requested damages, as they relate to the settlement agreement, are speculative. Plaintiffs have not provided the specific amount of money that they expect to receive under the terms of the settlement agreement as written and it is unclear from the settlement agreement what damages remain.

As noted, “[t]he object of compensatory damages is to make the injured client whole.” (Campagnolla v Mulholland, 76 NY2d 38, 42 [1990].) In addition to the legal expenses above,
the loss sustained by plaintiffs as a result of defendants’ negligence is alleged to be, in pertinent part, the improperly diverted revenues and unauthorized taking of capital that was also sought as damages in the Hutson Action. Thus, if ultimately successful in this action, plaintiffs’ recoverable damages would be limited to the amount of remaining damages not accounted for in the settlement agreement. “To hold otherwise would go beyond the usual purpose of tort law to compensate for loss sustained and would give the client a windfall opportunity …. (internal quotation marks and citation omitted).” (McKenna v Forsyth & Forsyth, 280 AD2d 79, 83 [4th Dept 2001].) “

A shocking practice in an otherwise virtuous area of law has recently bobbed up to the surface.  Lee v Leeds, Morelli & Brown, P.C.  2020 NY Slip Op 33374(U) September 30, 2020 Supreme Court, Kings County Docket Number: 8651/05 Judge: Ingrid Joseph is the latest case in which the Leeds Morelli paradigm of “anti-discrimination” litigation is exposed.  Another example is Dowe v. Leeds Brown Law, P.C. et al   .  In these two cases Plaintiffs alleged that there was a fake representation of them by Leeds Morelli.  They alleged that Leeds Morelli partnered with the employer in order to bring and settle large number of discrimination cases at a discount for the employer and a detriment for the employees, but with a profit for the law firm.  From Lee:

“Plaintiffs commenced this putative class action seeking damages for breach of fiduciary duty, legal malpractice and fraud, among other claims, stemming from a global settlement agreement between LMB and Bear. Plaintiffs contend that the agreement was secretly designed to materially benefit both LMB and Bear while depriving plaintiffs of the right to bring legal actions against Bear for race, age and gender discrimination by compelling plaintiffs to settle for capped and inadequate settlement awards.

In or around early 2001, LMB was consulted by several Bear employees,including plaintiffs Lee and Roe, regarding employment discrimination claims against Bear. Plaintiffs each  executed an undated retainer agreement authorizing LMB to represent them with respect to “negotiating a settlement” against Bear. On or about October 1, 2001, LMB and Bear agreed to a global settlement award and process which was memorialized in a “Dispute Resolution Agreement by Single Settlement Payment” (DRA), dated October 17, 2001. The DRA set forth a global settlement amount of $3 million. From the global settlement amount, Bear agreed to pay LMB’s one-third contingency fee of $1 million that the 52 claimants  represented by LMB (including plaintiffs) would otherwise be required to pay from their settlement allocations. The remaining $2 million in settlement funds was to be distributed among the claimants according to the settlement process set forth in the DRA. Under this process, each of the 52 participating claimants would receive an up-front $2,500 payment for releasing their right to bring any claims and/or causes of action against Bear, and the $1.87 million remaining in the global settlement fund would then be divided among the claimants basedupon the merits of each individual claim. The merits of each claim would be examined by an independent evaluator, selected by LMB, who would thereafter issue a settlement
award to the claimant, if merited, based upon submissions from LMB on behalf of the claimant and from Bear in opposition. If any amount remained in the settlement fund
following distribution of all claimants’ awards, such sums would be donated by Bear to the New York Times 9/11 Fund.”

“Plaintiffs commenced the instant action on March 23, 2005. In their complaint, plaintiffs set forth causes of action against LMB and LMB attorneys for breach of fiduciary duty (first), fraud (third) and legal malpractice (sixth), against Bear and the John Doe defendants for aiding and abetting breach of fiduciary duty (second), aiding and abetting fraud (fourth), constructive fraud (fifth) and tortious interference with a contract (seventh) Plaintiffs’ eighth and final cause of action is interposed against all defendants for “commercial bribery.” The gravamen of plaintiffs’ claims is that LMB and Bear agreed to a mutually beneficial global settlement agreement, which (1) capped the amount of damages Bear would pay to settle the claims, which in tum capped the amounts LMB’s clients could recover under the settlement process, (2) guaranteed a generous $1,000,000 legal fee to LMB and (3) protected Bear from negative publicity which may have ensued from litigation of employment discrimination claims in court.  Plaintiffs allege that LMB “duped” their clients into waiving relief in court and into participating in the “sham” settlement process for “arbitrary” and “inadequate” settlement awards. Plaintiffs contend that because the DRA made the $1 million legal fee contingent on LMB persuading the 52 claimants to execute releases and participate in the “sham” settlement, a conflict of interest was created between LMB and its claimant/ clients. ”

“By order dated January 8, 2020, this court dismissed the complaint in its entirety. The court found the first cause of action for breach of fiduciary duty untimely as it accrued, at the latest, upon plaintiffs’ execution of the superseding retainer agreements on October 2, 2001 and October 3, 2001, wherein plaintiffs expressly assented to the global settlement process pursuant to the DRA and waived any other claims or causes of action against Bear. The court applied the three-year statute of limitations as it determined the remedy sought by plaintiffs was purely monetary in nature. Because the instant action was not commenced until March 23, 2005, the breach of fiduciary cause of action was barred by the statute of limitations. In addition, the court found that the cause of action for breach of fiduciary duty was subject to dismissal as duplicative of the legal malpractice cause of action, because both claims were based on the same facts and did not allege distinct damages. In the January 8, 2020 order, the court found that the legal malpractice cause of action was also barred by the statute of limitations, since it accrued at the latest, on March 6, 2002 and March 7, 2002, when plaintiff Lee and plaintiff Roe, respectively, signed and swore to the “Evaluation Allocation and Release Agreement[s]” accepting the settlement awards. The court also dismissed the cause of action for fraud as it determined that plaintiffs failed to plead that they suffered actual pecuniary loss or and “out-of- pocket” loss as the result of the alleged fraud. “

Attorneys took on a jail beating case only to find that the most major injury, amputation of a testicle, was undertaken due to an incidental diagnosis of cancer, not due to trauma from the beating.  So, can they just quit?  Court says no.

Scott v Leventhal  2020 NY Slip Op 33276(U) September 30, 2020 Supreme Court, New York County Docket Number: 656211/2017 Judge: Debra A. James distinguishes the difference between withdrawal pre-complaint and after.

“Decedent, Patrick Fleming (Fleming or ·decedent) retained the legal services of defendants on September 8, 2015, after he was allegedly assaulted by a New York City Department of Correction officer on August 16, 2015, while incarcerated at Rikers Correctional Facility (second amended complaint, New York St Cts Electronic Filing System [NYSCEF] Doc No. 5 at ~~ 1, 6, 12). Defendants were retained to file a personal injury lawsuit on Fleming’s behalf (retainer agreemen~, NYSCEF Doc No. 239 ~
2). Fleming alleged that as a result of the assault, his right testicle had to be amputated (NYSCEF Doc No. 5 fl 7). Medical imaging as a result of Fleming’s assault revealed right testicular cancer (id. 1 10). ”

On October 17, 2016, defendants wrote to Fleming and declined to bring a lawsuit on his behalf (withdrawal letter, NYSCEF Qoc No. 246). Fleming later passed away due to complications from cancer {NYSCEF Doc No. 5 fl 11). His mother, as administrator of his estate, eventually brought suit in federal court for the alleged incident (federal court filing, NYSCEF Doc No. 273; Scott deposition tr, NYSCEF Doc No. 261 at 96) .”

“Notwithstanding the above, the court finds unconvincing defendants’ argument that they were obligated to withdraw after their investigation showed that the underlying tort claim was without merit (~ee Willis v Holder, 43 AD3d 1441, 1441 [4th Dept 2007] [conclusory assertiori that the underlying action lacks merit is insufficient to establish good and sufficient cause for withdrawal]). While it may be arguable that decedent’s amputation was due to cancer and not the assault, the
medical records indicate that the cancer was found incidentally
and subsequent to imaging performed as a result of the
assault. The fact that a lawsuit is of “questionable liability,
limited damages, and a likely unfavorable trial result not
the type of impairment of the attorney-client relationship that
permits withdrawal of counsel” (Countryman v Watertown Hous.
Auth_,_, 13 Misc 3d 632, 633 [Sup Ct, Jefferson County 2006]). ”

 

Strategic choices in medicine and law have always been given great deference by the Courts.  “Medicine is an art, not a science” is often heard in Med Mal trials.  Strategic choices by attorneys may cover a vast area of their acts at trial, in hearings and elsewhere. Wormser, Kiely, Galef & Jacobs LLP v Frumkin  2020 NY Slip Op 33172(U) September 28, 2020
Supreme Court, New York County Docket Number: 160569/2013 Judge: Paul A. Goetz is a good example.

“Turning to plaintiffs motion, plaintiff first argues that they are entitled to a summary judgment order dismissing defendants’ remaining  counterclaim for legal malpractice because their alleged negligent conduct is not actionable as it concerns reasonable strategic choices. Further, plaintiff argues that defendants cannot possibly show that but-for plaintiffs alleged mistakes in the underlying arbitration proceeding they would have obtained a more favorable result. Finally, plaintiff argues that the counterclaim should be dismissed because defendants did not suffer any damages as a result of the alleged malpractice as Mr. Frumkin subsequently sold the condominium units in a sham transaction to an entity owned by his mother, bought out Mr. Persaud, and then
resold the units for a generous profit.

It is well-established that an action for legal malpractice requires proof of an attorneys’negligence, a showing that the negligence was the proximate result of the injury, and evidence of actual damages. Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301A.D.2d63, 67 (1st
Dep’t 2002). While an attorney may be held liable for conduct which falls below the ordinary skill and knowledge commonly possessed by a member of the profession, “retrospective complaints about the outcome of defendant’s strategic choices and tactics, without demonstrating that those exercises of judgment were so unreasonable at the inception as to have manifested professional incompetence” are not actionable. Rodriguez v. Fredericks, 213 A.D.2d 176, 178 (1st Dep’t 1995). Thus, “[a]ttomeys may select among reasonable courses of action in prosecuting their clients’ cases without thereby committing malpractice.” Dweck Law Firm v. Mann, 283 A.D.2d 292, 293 (1st Dep’t 2002). ”

“However, as discussed in the reply affidavit of plaintiff’s expert Mr. Chertoff, the fatal flaw of defendants’ argument and their expert affidavit is their reliance on hindsight and the conclusions drawn by the arbitrators in their decision, to evaluate plaintiffs strategic decisions at the time of the arbitration proceeding. Affidavit of Gregory H. Chertoff sworn to on August 26, 2020, para. 2. This is not the appropriate standard for evaluating an attorneys’ conduct for purposes of a
malpractice claim. Rather, plaintiffs conduct must be evaluated in the context in which it was made, in comparison to the reasonable skill and knowledge commonly possessed by similarly situated attorneys, and without the knowledge of how the arbitrators ultimately ruled. See
Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430 (1st Dep’t 1990); see also Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301A.D.2d63, 69 (1st Dep’t 2002). “

A classic example of a case which probably could not be won.  It was lost because of discovery deficiencies by the attorney.  Woman goes to wax salon, has wax applied to her eyebrows.  Eventually she is diagnosed with herpes and HPV.  Salon used and re-used same sticks, and had a pot of wax which was endlessly re-used for all the patrons.  However, her brows were never tested nor was the wax.  Really no way to prove the wax caused the outbreak, even though it could have logically.  Hence, even though the attorney failed in discovery, no “but for” proximate cause in  Schoenberg v Dankberg  2020 NY Slip Op 33133(U)  September 25, 2020  Supreme Court, New York County  Docket Number: 159404/2016
Judge: Robert D. Kalish.

“Plaintiff retained Defendant Dankberg as her attorney to represent her in the underlying matter of Schoenberg v. Li Xia Gu, No. 013961/2012 (Nassau County) (“the underlying action”), in which she sued a nail salon and its owner and employees (“the underlying defendant salon”) alleging that she sustained personal injuries “as a result of her eyebrows negligently [being] waxed by [the salon]” on October and November of 2009. (Complaint in the underlying action, NYSCEF Doc. No. 111, generally & ¶ 12.) The complaint in the underlying action (“the underlying complaint”) alleged that the salon “negligently, recklessly, and carelessly used a  hazardous contaminated wax.” (Id. ¶ 16.) The underlying complaint further alleged that the wax was contaminated because the salon used the “same vat of wax, which remained heated in a ‘crock pot’ at the facility for all patrons and customers until and after it became unfit for human use.” (Id. ¶ 18.) The underlying complaint further alleged that “[f]resh wooden sticks, like ‘popsicle sticks,’ were used … to apply the wax, but the same sticks were dipped into the same wax used by all patrons, thereby negligently becoming contaminated for further use by humans.” (Id. ¶ 19.) The underlying complaint further alleged that as a result of, inter alia, the salon’s negligence, Plaintiff suffered personal injuries. (See, e.g., id. ¶ 77.) The underlying complaint alleged eleven causes of action and asked for an award of compensatory damages in the amount not less than $1,000,000 for each cause of action plus punitive damages. (See generally id.) ”

“According to Plaintiff’s complaint in the instant legal malpractice action (“the instant complaint”), on August 30, 2013, the defendants in the underlying action filed a motion for an
order, pursuant to CPLR 3126, dismissing the underlying action due to Plaintiff’s failures to comply with her discovery obligations in the underlying action. (Complaint, NYSCEF Doc No
144, ¶ 17.)1

Further, according to the instant complaint and as submitted into the record, in an order dated November 26, 2013, Plaintiff was ordered to serve said discovery responses within 30 days of the date of the order in the underlying action. (Id. ¶ 18.) The order noted that “[i]n the event that the plaintiff fails to comply with the directives of this [o]rder, plaintiff’s complaint shall be dismissed upon the Movant’s submission of an Affirmation of Non-Compliance.” (Id., citing Order dated Nov. 26, 2013, NYSCEF Doc No 133, Ex. A.)

Further, according to the instant complaint, a compliance conference was held in the underlying action on February 27, 2014, where counsel for the underlying defendant informed
the court that “none of the discovery responses listed in the court’s November 26, 2013 order had been provided by [underlying Plaintiff/Plaintiff].” (Id. ¶ 22.) According to the instant complaint, Plaintiff’s attorney Dankberg was not present at said conference, but “instead hired a per diem attorney who was not familiar with [P]laintiff’s case.” (Id. ¶ 23.) ”

“On the first element, Defendant Dankberg fails to present sufficient evidence in admissible form establishing as a matter of law that he acted with the sufficient skill and care of
an ordinary member of the legal profession. While uncontradicted testimony by itself can be sufficient to establish entitlement to summary judgment, it strains credulity that an attorney in Dankberg’s position would not keep one piece of documentation establishing that he notified Plaintiff that he was requesting information that was in the possession of Plaintiff and/or attempted to communicate with Plaintiff or Plaintiff’s father in order to to avoid the underlying action being dismissed pursuant to CPLR 3126. (Cf. Gonzalez v Ellenberg, 5 Misc 3d 1023(A) [Sup Ct 2004] [“[C]onclusory, self-serving statements with no expert or other evidence which would tend to establish, prima facie, that they did not depart from the requisite standard of care is not sufficient to sustain this burden.”].) The Court further notes that Defendant has failed to sufficiently explain why the underlying defendant’s CPLR 3126 motion was unopposed by Dankberg although Dankberg took on the underlying case and he further verified the underlying Plaintiff/Plaintiff’s complaint against the underlying defendant stating that he had reviewed “documents, files and books and records maintained by plaintiff.” (NYSCEF Doc No 111 [Attorney Verification].) Moreover, there is no evidence or any assertion that Dankberg communicated to his client that the action was dismissed pursuant to CPLR 3126, and that he discussed any potential next steps with his client thereafter. (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 434-35 [1st Dept 1990]; cf. Simons v Petrarch LLC, 2017 N.Y. Slip Op. 30457[U], 34 [N.Y. Sup Ct, New York County 2017] [internal citation omitted].)

Nevertheless even if Defendant Dankberg was negligent in failing to respond to the discovery requests which then resulted in the dismissal of the underlying action, this Court finds
that the instant action must be dismissed because Defendant Dankberg has demonstrated that his conduct was not the proximate cause of Plaintiff’s damages, as there would be no reasonable basis for a fact finder in the underlying action to award judgment in favor of Plaintiff. (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015].) “