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.”

 

MVNY Holdings v Esses Law Group, LLC  2020 NY Slip Op 33380(U) October 15, 2020 Supreme Court, New York County Docket Number: 153853/2019 Judge: Carol R. Edmead ended very badly for plaintiffs.  Not only did they lose a slew of money in the underlying real estate transaction, but they found out when they went to sue the defendant attorneys that they lacked standing!  Judge Edmead explains:

“The lack of an attorney-client relationship bars a legal malpractice claim (Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 539 [1st Dept 2019]). Here, CGR argues that documentary
evidence shows the absence of a relationship between CGR and plaintiffs (CPLR § 3211 [a] [1]). Among other things, CGR has provided the engagement letter and notice of appearance, both of which show that the firm was hired by the Romanoff parties alone and that CGR did not commence its representation of these parties until after the third-party action in Village Green had begun. CGR also shows, through court filings, that plaintiffs in this action engaged in motion practice in Village Green, and that they were represented by other counsel. In response, plaintiffs provide no evidence indicating that they ever communicated with CGR or relied on its guidance.  Moreover,  they do not assert that CGR “either affirmatively led [plaintiffs] to believe that they were acting as [their] attorney[s] or knowingly allowed [them] to proceed under that misconception” (Moran, 32 AD3d at 911). Even if plaintiffs held the subjective belief that CGR was their counsel – and plaintiffs have not shown that they held this belief – that would have been insufficient to establish an attorney-client relationship (see Matter of Segal v Five Star Elec. Corp., 165 AD3d 613, 613 [1st Dept 2018], lv denied 32 NY3d 919 [2019]). For the same reasons, plaintiffs fail to state a cause of action for legal malpractice, thus warranting dismissal under CPLR § 3211 (a) (7) as well (see Seaman, 176 AD3d at 539). Like CGR, Esses has shown that it did not represent plaintiffs in the Village Green litigation – in Esses’ motion, through copies of plaintiffs’ motion to intervene and proposed pleading in Village Green and the affidavit of Leo Esses (see Prudential-Bache Metal Co. v Binder, 121AD2d923, 926 [1st Dept 1986] [“When evidentiary material submitted in support of a complaint demonstrates that a material fact claimed by the plaintiff is not a fact at all, there is no bar to a dismissal of the complaint for failure to state a cause of action.”]; accord Ladera Partners, LLC v Goldberg, Scudieri & Lindenberg, P.C., 157 AD3d 467, 467 [1st Dept 2018]). Defendants also point out that the use of the words “on behalf of’ all ofVGM’s shareholders in the caption means that the claims, in part, are derivative (see Valyrakis v 346 West 48th St. Haus. Devel. Fund Corp., 161Ad3d404, 405 [1st Dept 2018]), and that this does not mean that the plaintiffs, in their own capacities, were clients of defendants in Village Green. Logic also militates against plaintiffs’ argument. If plaintiffs were correct, every unnamed shareholder in every shareholder’s derivative suit could assert a malpractice claim against the named shareholders’ attorneys in those actions.”

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. “