In Zegelstein v The Roth Law Firm PLLC  2020 NY Slip Op 30581(U) February 28, 2020 Supreme Court, New York County Docket Number: 154224/2018 Judge: W. Franc Perry Plaintiff sued insurers and others in State and Federal Court where each of the cases was dismissed. The Legal Malpractice case is now dismissed as well,

”  The original complaint_ in an underlying action alleged that plaintiff Zegelstein is an anesthesiologist and owner of plaintiffs Custom anesthesia Services, PC and Innovative Anesthesia Solutions, P.C. The defendants in that action are alleged to be doctors with practices
in Manhattan, Haroon Chaudry, M,.D. (Chaudry), Michael J. Faust (Faust), M.D., Jed Kaminetsky, M.D.(Kaminetsky), Michael P. Krumholz, M.D. (Krumholz) and Alan Raymond M.D. (Raymond), who entered, beginning in 2002, into separate agreements with Zegelstein for her to provide in-office anesthesia services to their patients, as well as to VCare LLC. The
agreements “provided for Zegelstein’s billing health insurance companies (the ‘insurers’) and/or patients (if uninsured or for balances owed after insurance payments were made) separately from the defendant physicians. Billing for services were allegedly rendered to the patients from June 2007 through 2011″ (Zegelstein v Faust, Slip Op 31257(U), *2 [Sup Ct, NY County 2017]). Zegelstein alleged that insurer/patient funds intended as payment for her services were deposited into accounts of the defendant physicians and converted by them. She alleged that she did not begin to learn of the theft until mid-2012.”

“Plaintiffs commenced that action by filing a summons with notice on April 17, 2014. On or about August 8, 2014, plaintiffs retained defendants to take over the representation of the case. At that time, when Roth provided a substitution of counsel, no summons or summons with notice had yet been served upon the defendants in that action. On August 13, 2014, Roth filed a verified complaint, and served that complaint upon the defendants in that action, but did not
serve the summons or summons with notice upon the defendants. Between August 13, 2014 and October 17, 2014, Roth was advised by counsel for the defendants in that action that they were never served with a summons.” Yet, Roth did not serve the summons.

During October 2014, defendants filed multiple motions to dismiss. On November 26, 2014, Roth, plaintiffs’ counsel at the time, cross-moved to extend the time to file the verified· complaint. On April 25, 2015, Justice Singh rendered a decision dismissing the complaint. In that decision, the court found that it lacked personal jurisdiction over the defendants due to “the failure to serve a, summons with the complaint,” and therefore did not consider plaintiffs’ motion to extend the time to file the complaint. Plaintiffs allege in their complaint herein that at this
point in the underlying litigation that “even though the claim was doomed by the lack of service of a summons, Defendants continued to litigate the action, charge fees and fail to remedy the situation” (complaint, ~ 83). This, however, is contradicted by the testimony in her own affidavit in support of her opposition to defendants’ motion to dismiss, in which Zegelstein avers that she “informed Roth [she] wanted to appeal the decision and he misadvised [her] that [she] should refrain from appealing the decision, because an appeal would have no merit” (Zegelstein aff, ~ 38). ”

“In this action, plaintiffs allege that but for Roth’s “egregious lack of diligence”, plaintiffs’ case would have survived dismissal and had a favorable outcome. Plaintiffs list several failures by Roth, including his failure to serve the summons  in the state case within the 120 days as
mandated by the CPLR, and his failure to attach the proposed amended complaint to his cross motion to amend the complaint, resulting in the denial of that motion. Plaintiffs allege three causes of action: malpractice, breach of contract and breach of fiduciary duty.
Defendants move to dismiss on the ground that plaintiffs cannot maintain a cause of action for malpractice in light of the decisions issued by Justice Singh and District Judge Forrest dismissing the underlying actions. Further, defendants argue that plaintiffs’ causes of action for breach of contract and breach of fiduciary duty are duplicative of plaintiffs’ malpractice claim and, therefore, should be dismissed.”

“The court finds that plaintiffs here are unable to meet their burden to prove that “but for” the alleged negligence of defendant, they would have prevailed in the underlying matter. Plaintiff alleges that defendant’s failure to serve the summons timely, and consequent failure to obtain jurisdiction over the defendants in the underlying action, or to commence a new action, doomed her claim. However, the decisions of both Justice Singh and District Judge Forrest undermine these allegations.

The First Department affirmed Justice Singh’s decision dismissing plaintiffs’ underlying lawsuit:
“In addition to plaintiffs’ extreme lack of diligence, the statute of limitations on the majority of plaintiffs’ claims appears to have expired prior to the initiation of this action, although it is difficult to say with certainty due to the lack of specificity in the complaint. This lack of specificity also weighs against allowing an extension, as does the prejudice suffered by defendants, who were unable to timely investigate plaintiffs’ claims” (Zegelstein v Faust, _AD3d_, 2020 NY Slip Op 00390, at *1-*2 [!51 Dept 2020][intemal citations omitted]).

Further, employing the doctrine of collateral estoppel, this court finds that these two previous decisions bar the claims in this malpractice suit. Collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or
proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Telephone Co., 62 NY2d 494, 500 [1984]. “Collateral estoppel … is but a component of the broader doctrine of res judicata which holds
that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action ( Gra’!1atan Home Jnvs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). “

The underlying history of Oberlander v Wolf  2020 NY Slip Op 50263(U)
Decided on February 25, 2020 Supreme Court, Suffolk County St. George, J. goes way back to issues surrounding Felix Sater.  If you recognize that name, you can see the depth of history associated with this case.  The story of the case and present day politics are beyond the scope of a modest blog such as this.

Here, the question is whether an extension should be granted in the filing of a complaint.

“The named defendants in this action are also New York attorneys/law firms who previously represented an individual named Felix Sater in New York courts, mostly in the federal Eastern and Southern Districts. Plaintiffs represented individuals suing Sater on various theories. The federal litigation is long-standing, somewhat complex, and it has resulted in disciplinary action taken by the District Court, Eastern District (one-year suspension commencing September 1, 2018) against Mr. Oberlander, which matter is on appeal.[FN1]

By Motion Sequence 001, plaintiffs request an enlargement of time to serve the complaint through February 8, 2019. With respect to Motion Sequence 001, defendants Robert Wolf and Moses & Singer LLP (the Wolf/LLP) defendants oppose the requested relief. The Beys, Mobargha and Beys, Liston & Mobargha, LLP (the Beys/Mobargha/LLP) defendants did not oppose Motion Sequence 001, but on the same date that opposition to Sequence 001 was filed by Wolf/LLP, the Beys/Mobargha/LLP defendants filed a notice of appearance and demand for a complaint. Asserting that, “in search of economy,” plaintiffs propose in Motion Sequence 002 that they “be allowed to litigate by one complaint;” therefore, they request that Sequence 001 and Sequence 002 be consolidated for determination by the Court.[FN2] Motion Sequence 002 requests an enlargement of time to serve the complaint to a date that the Court “sees fit.”[FN3] The Wolf/LLP defendants and the Beys/Mobargha/LLP defendants each oppose Motion Sequence 002.

The named defendants assert that both of the pending motions should be denied and that the action should be dismissed pursuant to CPLR § 3012 (b) since plaintiffs cannot demonstrate both a reasonable excuse for the delay in serving the complaint and a meritorious cause of action.”

“There is no support in the submissions to this Court supporting the hyperbolic claim of the plaintiffs in the unsworn summons with notice that the “defendants filed in court over a period of time repeated misrepresentations of fact they knew or recklessly indifferent in not knowing were false with the specific intent to frame plaintiffs for attempted murder (sic)” (Notice, paragraph 45).

Although plaintiffs fail to delineate their basis for claiming that the defendants violated the Judiciary Law, it appears that the claim is based upon the same allegations constituting their claim for common law fraud. In this same vein, as supported by the submitted records of the federal court proceedings and decisions, it is evident that Sater’s attorneys both past and present, who are the named defendants in this action, appear to have engaged in appropriate representation of their client’s interests, without any evidence having been submitted to this Court that remotely supports plaintiffs’ claim that the defendants violated Judiciary Law § 487 making it a misdemeanor for 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” (Judiciary Law § 487 [1]; see also Lazich, supraat 754).”

Any trial lawyer will be able to decipher the point of a difference between a pre-answer motion to dismiss and a motion for summary judgment.  In Caso v Miranda Sambursky Slone Sklarin Verveniotis LLP  2020 NY Slip Op 01384 Decided on February 27, 2020 Appellate Division, First Department permitted dismissal on summary judgment in a case where it denied dismissal on the pre-answer motion.  The facts remain exactly the same.

“In this legal malpractice action, plaintiff, defendants’ former client, contends that “but for” defendants’ negligence he would have obtained a favorable jury verdict in his underlying personal injury action against the owner and driver of a truck (Caso v Santos, et al., index No. 301817/2008 [Supreme Ct., Bx Cty]). Plaintiff was struck by a commercial garbage truck and badly injured. The accident was a hit and run. Plaintiff could not describe the vehicle that struck him, and his case largely relied on the testimony of the sole eyewitness, Ted Arenas. Arenas called 911 when the accident occurred. A New York City police detective spoke to Arenas during the course of his investigation of the accident. Defendants’ driver was arrested but the charges were dropped shortly thereafter, and no criminal action was commenced. The detective, however, prepared investigative reports, which include statements that Arenas made to him. One investigative report contains a statement attributed to Arenas that he had “observed a dark green colored garbage truck” and that it was not a dump truck “as he stated in his 911 call.” Another statement attributable to Arenas is that the truck had a “flat front.” None of these investigative reports were prepared by Arenas or signed by him.

Statements from these investigative reports were read aloud, line by line, to Arenas at his deposition in the personal injury action. Even after hearing the information from the investigative reports, Arenas denied that he recalled describing the truck as having a flat front. Instead, he recalled that the truck had an engine in front. Arenas even made a drawing reflecting a roundish front hood on the truck. Arena did not recall seeing any identifying markings on the truck, or license plate, nor did he see the driver.

Before trial, Arenas met with counsel for both plaintiff and defendants. During that meeting, Arenas stated that he recalled the front of the truck as being bullnosed. While he was not 100% sure, even after one of the investigative reports was read to him where he described the front of the truck as flat, he drew a picture of the truck with a bullnose.

At trial, Arenas provided conflicting and inconsistent testimony about the truck, alternatively describing it as a dump truck and also a garbage truck, but once again he testified that the truck had a rounded “bullnose,” with the engine up front. Such testimony did not match the description of the truck owned by the defendants and allegedly involved in the underlying accident, which had a flat front. Santos, defendants’ driver testified that he had not been [*2]involved in any accident and had not hit anybody with his truck. The jury returned a verdict for the defendants in the underlying personal injury action.

Plaintiff’s contention in this legal malpractice action is that Arenas should have been better “prepared” for his deposition in the underlying personal injury action, so he could “remember” the statements he made to the detective. Plaintiff claims that, had defendants not been negligent, there would have been a plaintiff’s verdict. He claims that Arenas’s testimony damaged his case and prevented him from prevailing.

“[M]ere speculation of a loss resulting from an attorney’s alleged omissions . . . is insufficient to sustain a claim” for legal malpractice” (Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405, 405-406 [1st Dept 2016] [internal quotation marks omitted]; Geller v Harris, 258 AD2d 421 [1st Dept 1999]). Plaintiff’s assertion that, had Arenas been better prepared, the jury would have returned a favorable verdict is pure speculation (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007]; Bookwood v Alston & Bird, LLC, 146 AD3d 662 [1st Dept 2017]. Defendants met their burden of showing that plaintiff cannot establish causation, in that plaintiff cannot prove that it would have prevailed in the underlying action “but for” defendant’s alleged negligence in preparing Arenas for his deposition (see Rudolf v Shayne, 8 NY3d 438 at 442).

Although there are issues of fact regarding whether defendants may have departed from the applicable standard of care, any claim that the jury would have reached a different result in the personal injury action is wholly speculative. First, it is wholly speculative that Arenas would have testified to a different description of the truck either at his deposition or at trial had he been shown the investigative reports. Although the investigative reports were read to him line by line at his deposition, his description of the truck did not change and he adhered to his belief, that the front of the truck he saw strike and run over plaintiff was bullnosed. Even if Arenas’s statement in support of plaintiff’s motion in this case is accurate, that he would have testified differently had he been differently prepared, this, at best, creates an issue of fact about what he would have said at trial. It does not eliminate speculation about what the jury’s verdict would have been, given that Arenas’s description of the truck otherwise lacked detail, and the absence of any additional proof identifying defendants’ truck and driver as being involved in underlying accident.

Contrary to plaintiff’s argument, our prior decision in this case decided under the more liberal standards applicable to motions to dismiss (150 AD3d 422 [1st Dept 2017]) is not inconsistent with this summary judgment adjudication (see Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467 [1st Dept 1987]). Consequently, defendants’ motion for summary judgment should have been granted and the case dismissed.”

Plaintiffs struck out across the board following being “frozen out” of merger negotiations.  In Binn v Muchnick, Golieb & Golieb, P.C. 2020 NY Slip Op 01302 Decided on February 25, 2020 the Appellate Division, First Department found that the minority shareholders knew exactly what was coming their way, and nothing the attorneys did created a greater harm

“Plaintiffs allege that their long-time attorneys, defendants John Golieb, Esq. and Muchnick, Golieb & Golieb, P.C. (together, the Golieb defendants), gave poor advice in connection with a series of transactions in 2014, 2015 and 2016, resulting in the loss of plaintiffs’ majority interest and dilution of their interest in their airport spa business, XpresSpa Holdings, LLC (XpresSpa), as well as other damages. The motion court correctly concluded that documentary evidence, including emails and transaction documents, rendered it “essentially undeniable” that plaintiffs were advised of and/or otherwise understood the terms of the transactions they entered into in 2014 and 2015, as well as their alternative options, if any (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014] [internal quotation marks omitted]). Those documents “conclusively establish[] a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see CPLR 3211[a][1]).

The court correctly concluded that plaintiffs failed to establish that the Golieb defendants were the proximate cause of any damages in connection with the 2016 vote on the merger of XpresSpa and its acquisition by Form Holdings Corp. Documents show that plaintiff Moreton Binn voted in favor of the merger “under protest,” that he felt “frozen . . . out” of the merger negotiations, and that he received inadequate information from Form Holdings — factors outside of the Golieb defendants’ control. Moreover, in connection with their execution of the Joinder Agreement relating to the merger, plaintiffs retained separate counsel to represent them and the minority shareholders in evaluating the voluminous merger and acquisition documents by reviewing the documents and summarizing their terms for the minority shareholders. Thus, separate counsel was an intervening and superseding cause of any damages (see Boye v Rubin & Bailin, LLP, 152 AD3d 1, 10 [1st Dept 2017]).

The court correctly dismissed the legal malpractice claim against defendants DLA Piper LLP (US) (DLA) and Sidney Burke (collectively, the DLA defendants), counsel for Mistral Equity Partners (Mistral), an investor in plaintiffs’ business, and its related entities, including Mistral XH, which facilitated the 2016 merger. Plaintiffs do not dispute that there was no attorney-client relationship, and, contrary to their contentions, there is no near privity to support a claim of legal malpractice (see e.g. Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 60-61 [1st Dept 2007]). Nor is any other ground for a legal malpractice claim alleged (see Good [*2]Old Days Tavern v Zwirn, 259 AD2d 300 [1st Dept 1999]). Plaintiffs signed the 2016 Joinder Agreement, dated October 28, 2016, which acknowledges that “DLA Piper LLP (US) is not representing and will not represent any Member … other than the Mistral Vehicles” in connection with the Joinder Agreement or other transaction documents.”

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).”