Sultan v Zhu 2020 NY Slip Op 01285 Decided on February 25, 2020
Appellate Division, First Department is the story of a group of people living in a small condominium building.  Some were celebrities, some not.  Money disputes raged for years and years.  Finally, they dissolved into legal malpractice disputes.

“Defendants were retained by plaintiff in July of 2013 to represent him in an underlying action involving a dispute over allocation of repairs of condominium common areas in a townhouse. On appeal, plaintiff argues primarily that defendants negligently represented him because they failed to succeed in relieving him of a judgment in the amount of over $538,000 that had been entered against him in December 2012, notwithstanding an earlier judgment, entered in February 2003, following arbitration, which capped his liability at $127,660. Plaintiff alleges that defendants failed to even bring the fact of the inconsistent judgments to the court’s attention.

Plaintiff’s allegations in this vein do not amount to actionable malpractice (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015]). The record makes clear that the judge who directed entry of both judgments was fully aware of the terms of the earlier judgment, but the circumstances had changed in the intervening ten years due to Dr. Sultan’s own delays and the added costs that his obstruction had caused. As such, the second judgment superseded the first, and the two were not inconsistent.

The IAS court also correctly determined that the remainder of the allegations underlying plaintiff’s malpractice claims were barred by the doctrines of res judicata and collateral estoppel pursuant to CPLR 3211(a)(5) (see e.g. Karakash v Trakas, 163 AD3d 788 [2d Dept 2018]; Vera v Low Income Mktg. Corp., 145 AD3d 509, 510 [1st Dept 2016]). Many of the issues raised in the complaint have already been fully vetted and decided against Dr. Sultan despite his being precluded from relitigating those issues on appeal (id.).”

Farina v Katsandonis, P.C. 2020 NY Slip Op 30468(U) February 21, 2020
Supreme Court, New York County Docket Number: 154170/2019
Judge: David Benjamin Cohen presents a rarely discussed tolling provision of the statute of limitations.  It is the “continuing wrong” toll.  Continuous representation, as all know, tolls the statute of limitations while there remains an understanding that further work is to be performed, and there is a continuing relationship of trust and confidence.  The continuing wrong principle is found in Harvey v. Metropolitan Life Ins. Co. 34 A.D.3d 364 (1st Dept, 2006).  “What is alleged is a “continuing wrong,” which—for purposes of our statute of limitations (CPLR 203)—is “deemed to have accrued on the date of the last wrongful act” (Leonhard v United States, 633 F2d 599, 613 [2d Cir 1980], cert denied [*2]451 US 908 [1981]). Accordingly, the commencement of this action in 2004 was timely.”

In Farina even that tolling was insufficient. “While the precise date of the alleged malpractice is not clear, even giving plaintiff the benefit of the continuous representation (see Shumsky v Eisenstein, 96 NY2d 164 [2001]) and the continuing wrong doctrine (see Harvey v Metropolitan Life Ins. Co., 34 AD3d 364 [1st Dept 2006]) this matter was filed beyond the statute of limitations.”

Rockland County:  First, the house was lost to foreclosure.  Then the case was lost to res judicata.  Doomed from the beginning, the plaintiff was then deprived of the right to start another action or bring another motion.  Eaddy v U.S. Bank N.A.  2020 NY Slip Op 01047 Decided on February 13, 2020 Appellate Division, Second Department shows how difficult it can be for a pro-se to get results.

“The plaintiff commenced this action, inter alia, to quiet title to certain real property and to recover damages for fraud and violations of Judiciary Law § 487, arising from the procurement of a judgment of foreclosure and sale in a prior action to foreclose a mortgage encumbering the subject property. The defendant Brian H. Berkowitz, the defendants Steven J. Baum, P.C., and Charles D.J. Case (hereinafter together the Baum defendants), the defendants U.S. Bank National Association, Wells Fargo Bank, N.A., Hogan Lovells US, LLP, and Jordan Estes (hereinafter collectively the U.S. Bank defendants), and the defendants Gross Polowy, LLC, and Amanda Rudroff-Lavis (hereinafter together the Gross Polowy defendants) separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, arguing, among other things, that this action was barred by the doctrine of res judicata.”

“”Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913; see Djoganopoulos v Polkes, 67 AD3d 726, 727; Sclafani v Story Book Homes, 294 AD2d 559, 559). “A judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or could have been litigated in the foreclosure action” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d at 913; see SSJ Dev. of Sheepshead Bay I, LLC v Amalgamated Bank, 128 AD3d 674, 675; Dupps v Betancourt, 121 AD3d 746, 747). A judgment by default that has not been vacated is conclusive for res judicata purposes and encompasses the issues that were raised or could have been raised in the prior action (see Richter v Sportsmans Props., Inc., 82 AD3d 733, 734; 83-17 Broadway Corp. v Debcon Fin. Servs., Inc., 39 AD3d 583, 585; Rosendale v Citibank, 262 AD2d 628). Here, the judgment of foreclosure and sale entered upon the plaintiff’s default in the foreclosure action encompassed all issues that were raised or could have been raised in that action, and precludes her from asserting the causes of action raised in this action.”

Once in a while plaintiff seeks summary judgment in a legal malpractice setting.  We anecdotally believe that Courts give greater scrutiny (i.e. a tougher standard) to plaintiff’s legal malpractice cases, and certainly at plaintiff’s seeking summary judgment.  Here, in Eurotech Constr. Corp. v Fischetti & Pesce, LLP 2019 NY Slip Op 01366 [169 AD3d 597] February 26, 2019 Appellate Division, First Department, no slack is given.

“Plaintiff failed to establish that there are no issues of fact as to its legal malpractice claim. The claim is that defendant failed to timely communicate with plaintiff about information obtained from testimony or bills of particular in the underlying personal injury action, and that, as a result, plaintiff was unable to timely notify its excess insurance provider that its primary insurance coverage might be exhausted. Still unresolved are the type and timing of any communication required, which depends on the agreed-upon scope of defendant’s representation of plaintiff, and the point at which defendant, in the exercise of the requisite professional skill and knowledge, should have realized that plaintiff’s primary insurance coverage could be exhausted (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 41-42 [2d Dept 2006], cited in Eurotech Constr. Corp., 155 AD3d at 437). Expert testimony would have been helpful because the issues here involve professional standards beyond the ordinary experience of non-lawyers (see Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010], lv denied 15 NY3d 707 [2010])”

The Second Department rarely reverses summary judgment in a legal malpractice setting.  Of that subset of rare reversals, matrimonial legal malpractice is a very small portion.  Nevertheless, in Lauder v Goldhamer
2020 NY Slip Op 01152 Decided on February 19, 2020 Appellate Division, Second Department appellant won all around.

“The plaintiff commenced this action alleging, inter alia, that the defendants committed legal malpractice in the prosecution of an underlying matrimonial action. The plaintiff alleged, among other things, that the defendants’ lack of preparation, as well as the misinformation and faulty legal advice they supplied to her, resulted in an unfavorable, binding stipulation of settlement in the underlying action. The defendants moved for summary judgment dismissing the complaint arguing, inter alia, that their actions did not proximately cause the plaintiff damages. The Supreme Court granted the defendants’ motion, and the plaintiff appeals.”

“Here, the defendants demonstrated, prima facie, the absence of proximate cause by relying on the plaintiff’s on-the-record acquiescence to the terms of the stipulation of settlement in the underlying action. In opposition, the plaintiff raised a triable issue of fact as to whether the [*2]actions of the defendants, in advising her with regard to the stipulation of settlement, proximately caused her damages. Consequently, that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice should have been denied (see Birnbaum v Misiano, 52 AD3d 632, 634).

Contrary to the Supreme Court’s determination, the causes of action alleging breach of fiduciary duty and to set aside the retainer agreement were not duplicative of the legal malpractice cause of action, and should not have been dismissed on that basis (see Postiglione v Castro, 119 AD3d 920, 922). Moreover, with regard to the cause of action to set aside the retainer agreement, the defendants failed to eliminate all triable issues of fact pertaining to the terms of the agreement and whether they, in fact, adhered to it (see Becker v Julien, Blitz & Schlesinger, 66 AD2d 674).

The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law § 487, as the defendants failed to eliminate all triable issues of fact regarding “the only liability standard recognized in Judicary Law § 487 . . . of an intent to deceive” (Dupree v Voorhees, 102 AD3d 912, 913).”

 

Statutes of repose, statutes of limitation, procedural statutes of limitation, statutes which “merely suspend[s] the remedy.”  Confused yet?

That question led to a dismissed legal malpractice case concerning whether California Code of Civil Procedure § 366.3 is a statute of limitation.  The question came up in Matter of Cassini Decided on February 13, 2020 Appellate Division, Second Department.

“This appeal is one of several arising out of a protracted and vigorously contested probate proceeding involving the estate of the internationally renowned fashion designer Oleg Cassini (hereinafter the decedent), who died in March 2006. In 1952, the decedent and his then-wife Gene Tierney entered into a “Property Settlement Agreement” (hereinafter the PSA) that was incorporated by reference into a California final judgment of divorce entered April 7, 1953. In the PSA, the decedent agreed to leave by testamentary disposition at least one-half of his net estate to his daughters Daria Cassini (hereinafter Daria) and Christina Cassini (hereinafter Christina), in equal portions. Pursuant to a choice-of-law provision, the PSA was to be construed and interpreted in accordance with California law.

The decedent’s last will and testament did not include testamentary dispositions leaving at least one-half of his net estate to Daria and Christina. After the decedent died in 2006, Marianne Nestor Cassini (hereinafter Marianne), the decedent’s widow, was issued letters testamentary as the executor of his estate. Christina filed a claim asserting her entitlement to 25% of the decedent’s net estate, and petitioned for a determination as to the validity and enforceability of her claim. Marianne moved to dismiss Christina’s claim, and Christina cross-moved for summary judgment on the issue of liability. The Surrogate’s Court, inter alia, granted Christina’s cross motion for summary judgment, and this Court affirmed (see Matter of Cassini, 95 AD3d 1311).

Marianne subsequently commenced an action to recover damages for legal malpractice in the Supreme Court based, inter alia, on the failure of the estate’s attorneys to raise in the Surrogate’s Court proceeding the defense that Christina’s claim was barred by California Code of Civil Procedure § 366.3. That statute provides that actions to enforce claims arising from a promise or agreement with a decedent to distribution from an estate may be commenced within one year after the date of death (see Cal Code Civ Proc § 366.3[a]). In a decision and order dated August 23, 2017, this Court affirmed the grant of a motion pursuant to CPLR 3211(a)(7) to dismiss portions of the legal malpractice complaint (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d 840). In doing so, this Court concluded that California Code of Civil Procedure § 366.3 is a procedural statute of limitations, and not a statute of repose, and thus was inapplicable to the Surrogate’s Court proceeding in New York (see Nestor v Putney Twombly Hall & Hirson, LLP, 153 AD3d at 842-843). Accordingly, this Court concluded that raising that statute in the Surrogate’s Court proceeding would not have resulted in a determination that Christina’s claim was barred (see id. at 842).”

Judiciary Law § 487 cases are unique, even odd.  Izmirligil v Steven J. Baum, P.C.  J2020 NY Slip Op 01052 Decided on February 13, 2020 Appellate Division, Second Department is even more so.  Here, plaintiff borrowed $ 1.1M to buy a house.  The mortgage was passed between banks.  Plaintiff defaulted on the foreclosure case.  Now, he sues the banks, the paper prep guys and the attorneys on the theory that the assignment was forged.  The bank and the papers prep guys get out.  The attorneys, no.

“With regard to the first cause of action, Izmirligil failed to state a cause of action under Real Property Law § 329 against the BNYM defendants and Chase (see CPLR 3211[a][7]; Leon v Martinez, 84 NY2d 83, 87-88). In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d at 87). However, “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Maas v Cornell Univ., 94 NY2d 87, 91 [internal quotation marks omitted]; see Myers v Schneiderman, 30 NY3d 1, 11). Bank of New York Mellon was not a party to the assignment, and thus, Izmirligil failed to state a cause of action pursuant to Real Property Law § 329 against it. Further, under the circumstances presented, Izmirligil’s conclusory allegations that the assignment was forged and fabricated were insufficient to state a cause of action under Real Property Law § 329 against BNYM as trustee and Chase (see generally Moffett v Gerardi, 75 AD3d 496, 498; Son Fong Lum v Antonelli, 102 AD2d 258, 260-261, affd 64 NY2d 1158).

Similarly, we agree with the Supreme Court’s determination to grant that branch of the motion of the BNYM defendants which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action against BNYM as trustee (see Wood v Villanueva, 175 AD3d 1465; Zuniga v BAC Home Loans Servicing, L.P., 147 AD3d 882; Acocella v Wells Fargo Bank, N.A., 139 AD3d 647, 649; Jahan v U.S.Bank N.A., 127 AD3d 926, 927).

Further, contrary to Izmirligil’s contention, the Supreme Court did not err in granting those branches of the separate motions which were to dismiss the RICO cause of action insofar as asserted against each of the moving defendants as time-barred. “The statute of limitations for civil RICO claims is four years” and “is deemed to have accrued when the plaintiff knew or should have known of his or her injury, regardless of when he or she discovered the underlying fraud'” (House of Spices [India], Inc. v SMJ Servs., Inc., 103 AD3d 848, 849-850, quoting Dempster v Liotti, 86 AD3d 169, 178; see Mitchell v Diji, 134 AD3d 779, 781). This cause of action accrued on November 30, 2009, when the foreclosure action was commenced. Accordingly, as Izmirligil did not commence the instant action until 2015, the RICO cause of action was time-barred (see Dempster v Liotti, 86 AD3d at 179).

However, we disagree with the Supreme Court’s determination with regard to the third, fourth, fifth, and sixth causes of action, alleging violations of Judiciary Law § 487 by the Baum defendants. Under Judiciary Law § 487, an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages. “[V]iolation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [citation omitted]). Here, Izmirligil alleged that the Baum defendants violated Judiciary Law § 487 by, inter alia, colluding with others to forge an assignment and file a foreclosure action using a complaint containing false allegations to deceive the court and others. The evidentiary submissions of the Baum defendants did not show that the material facts claimed by Izmirligil to be facts were not facts at all and that no significant dispute exists regarding them (see Guggenheimer v Ginzburg, 43 NY2d 268, 275). Accordingly, the court should have denied that branch of the Baum defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging violations of Judiciary Law § 487 by them.”

Oleg Cassini was wildly successful as a fashion designer.  When he divorced, back in the 1950’s he agreed that his estate would (50%) go to his two daughters.  Fast forward to the 21st century.  As you might guess, the daughters were disinherited.  As you might further guess, this led to litigation.  It led to legal malpractice litigation, but only as the tail to the dog.  Matter of Cassini  2020 NY Slip Op 01056 Decided on February 13, 2020 Appellate Division, Second Department Scheinkman, P.J., J. and two other simultaneous decisions were reported just before Valentine’s day.

Well beyond the space limits of this blog, the history of the fight between second wife and two daughters of the first marriage, the Oleg Cassini estate, consisting of  clothing, perfumes and other products was worth upwards of $ 50 million.  The daughters both died during the litigation and the Nassau County Public Administrator has been prosecuting the case for many years.

At issue here was how CPLR 321 is applied when an attorney simultaneously seeks to be relieved and tells the court that he is too ill to continue.  The stays, adjournments and process are fully discussed by Presiding Judge Scheinkman.

“The decedent was survived by his wife, Marianne Nestor Cassini (hereinafter Marianne), and his two daughters from a previous marriage, Christina Cassini (hereinafter Christina) and Daria Cassini (hereinafter Daria). The decedent’s last will and testament was admitted to probate in August 2007, and, pursuant to its terms, Marianne was appointed executor of the decedent’s estate. Christina subsequently petitioned to remove Marianne as executor and, in 2014, pursuant to a stipulation entered into between the parties, Marianne resigned as executor and the Public Administrator of Nassau County (hereinafter the Public Administrator) was appointed to administer the decedent’s estate.

During the course of this litigation, Marianne was represented by J. Vincent Reppert, of the law firm of Reppert Kelly, LLC (hereinafter RK), as well as by Charles H. Kaplan, of the law firm of Sills Cummis & Gross P.C. (Sills Cummis), in three proceedings. The three proceedings consisted of: (1) a proceeding to judicially settle the intermediate account of the estate (hereinafter the Accounting Proceeding); (2) a proceeding for the turnover of certain assets allegedly belonging [*2]to the estate (hereinafter the Turnover Proceeding); and (3) a proceeding to settle the account of a supplemental needs trust established for the benefit of Daria (hereinafter the SNT Proceeding).

In July 2015, Reppert notified the Surrogate’s Court that he had a “medical condition” that required surgery and requested an adjournment of the trial in the Accounting Proceeding, which was scheduled to commence in August 2015. The court granted the request, largely, but not entirely, because of Reppert’s health condition. A subsidiary reason for the adjournment was the need for the court to determine certain motions, which were not decided until October 9, 2015.

In December 2015, RK and Sills Cummis each filed separate motions for leave to withdraw as counsel of record for Marianne in each of the three pending proceedings. In a supporting affirmation, Reppert advised the court that “Marianne specifically requested [him] to work on this action based on a pre-existing work relationship” and that “[f]or medical reasons, [he has] not been able to fully return to the practice of law full-time since July of 2015.” Reppert stated that both he and his partner, Christopher Kelly, advised Marianne that RK “would have to move to withdraw as counsel” and that RK “will provide all records in [its] possession and will attempt to assist as much as reasonably possible with any transition.” The motions, which were returnable on January 13, 2016, were unopposed.

By two orders dated February 16, 2016, the Surrogate’s Court granted RK’s motions for leave to withdraw as counsel for Marianne in the Turnover Proceeding and the SNT Proceeding, respectively, finding that Reppert was “unable to continue to represent [Marianne] due to health reasons.” According to Kelly of RK, RK did not receive copies of those orders until March 14, 2016. The court also granted Sills Cummis’s motions for leave to withdraw as counsel in all three proceedings. After several inquiries by Kelly as to the status of his firm’s motion for leave to withdraw from the Accounting Proceeding, court personnel, on May 23, 2016, transmitted to RK a copy of an order dated March 14, 2016, granting its motion for leave to withdraw as counsel for Marianne in the Accounting Proceeding. This order contained a finding by the court that Reppert was unable to continue to represent Marianne due to health reasons. It also contained a provision staying all proceedings in the Accounting Proceeding for a period of 30 days from its date.

A court conference was held on June 8, 2016, at which Marianne appeared with an attorney, Robert McKay. The proceedings on June 8, 2016, were not transcribed. However, according to an order dated June 9, 2016, issued by the Surrogate’s Court for the purpose of memorializing the conference, the court directed that the trial of the Accounting Proceeding would commence on July 25, 2016, that the trial dates could not be adjourned without court approval, and that “[t]he trial shall proceed whether the parties are represented by counsel or not.” While not mentioned in the June 9, 2016, order, it is undisputed that McKay decided against undertaking Marianne’s representation and declined to file a notice of appearance.”

RIVERHEAD, NY    The question of whether the attorneys departed from good practice, allowing Plaintiff to be jailed for contempt in not paying child and spousal support was determined in the summary judgment decision in Rivera v Kerr  2019 NY Slip Op 33047(U) October 11, 2019
Supreme Court, Suffolk County Docket Number: 17736/2015 Judge: Sanford Neil Berland.

” The current action alleges legal malpractice in connection with, among other things. the handling of a prior action concerning and a contempt proceeding arising from the Settlement Agreement and Amendment to Separation Agreement (individually, the “‘Settlement Agreement”
and the ··Amendment”; together. the ‘”Amended Settlement  Agreement”) and the Judgment of Divorce that resolved the matrimonial action between plaintiff and his Conner wife . Plaintiff alleges that he retained the defendants to bring and prosecute a plenary action challenging the Amended Settlement Agreement as defective and unenforceable and to defend him in the contempt proceedings that were brought against him for allegedly violating the Amended Settlement Agreement. The result of those contempt proceedings, which were conducted in Family Court. was that plaintiff was found to have \\illfully failed to pay court-ordered child support and maintenance to his ex-wife and was sentenced to serve six months of incarceration. and plaintiff now claims that the defendants committed legal malpractice by failing to challenge the validity of the Amended Settlement Agreement. For their part. defendants maintain that the Amended Settlement Agreement was not defective; that even if it was. plaintiff, as a matter of law. could not have been saved from being held in contempt: and that the complaint is otherwise without merit.”

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly
appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corp .. 3 NY2d 395, 165 NYS2d 498 [ 1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr .. 64 NY2d 851, 487
NYS2d 316 [ 1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr .. supra). Once such proof has been offered, the burden then shifts to the opposing party. who, in order to defeat the motion for sununary judgment, must proffer evidence in admissible form … and must ‘·show fac ts sufficient to require a trial of any issue of facf’ (CPLR 3212 [b ]; see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court’s function on such a motion is to determine whether issues of fact exist. not to resolve issues of fact or to determine matters of credibility. the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true (See Rot/I v Barreto, 289 AD2d 557. 735 NYS2d 197 [2d Dept 2001 ]: O’Neill v Fishkill, 134 AD2d 487. 521 NYS2d 272 [2d Dept 1987]).”

In the high-stakes corporate world, the money can get quite large and a large number of big-law firms can get involved.  What happens when operating agreements between highly sophisticated parties, each of which are represented by law firms alter the landscape.  Which law firms represented which parties, how did that change and is there privity are the questions raised and answered in Binn v Muchnick, Golieb & Golieb, P.C. 2019 NY Slip Op 30568(U)  March 5, 2019 Supreme Court, New York County Docket Number: 158105/2017.

Judge O. Peter Sherwood marshals the evidence and discusses a wide swath of causes of action, their elements and how the representation swirled and changed over time.  What seems most relevant in this recitation is how the new operating agreement released all from prior claims.  The details of this case are too fulsome to edit for a blog.  It is highly worthwhile reading the entire case.